RECEIVED by MSC 7/2/2019 11:32:24 AM · 2 sanders heather h pl-at sam 3 tumbleweed saloon inc oral argument: y timely: y df-ae ret (49797) ewing michael c co (38185) feuer scott l

STATE OF MICHIGAN

IN THE SUPREME COURT

Appeal from the Michigan Court of Appeals The Hon. Amy Ronayne Krause, Elizbeth L. Gleicher and Anica Letica

DAVID R. SANDERS and HEATHER H. SANDERS, Supreme Court Docket No. 158789 Plaintiffs-Appellees, Court of Appeals No. 338937 Montmorency Circuit Court -vs- Lower Court Case No.: 16-003949-NO TUMBLEWEED SALOON, INC., Defendant-Appellant, and SHAWN SPOHN and ZACHARY PIERCE, and PAINTER INVESTMENTS, INC., doing business as CHAUNCEY’S PUB, Defendants. ______________________________________________________________________

APPELLANT’S APPENDIX

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TABLE OF CONTENTS

APPENDIX A Court of Appeals Docket Entries .............................................. 001a

APPENDIX B Trial Court Opinion and Order Issued June 1, 2017 (Case No: 2016-003949-NO .................................................... 006a APPENDIX C Court of Appeals Opinion Issued October 30, 2018 ..................................................................... 011a APPENDIX D Letter of Representation from attorney Samuel A. Meklir dated February 3, 2015 ................................ 030a APPENDIX E Affidavit of attorney Samuel A. Meklir dated May 10, 2017 ................................................................. 032a APPENDIX F Plaintiff's Complaint and Jury Demand ................................... 036a APPENDIX G Deposition Transcript of Heather Sanders ............................... 052a

APPENDIX H Deposition Transcript of David Sanders .................................. 081a

APPENDIX I Notice Letter by Plaintiff's Current Counsel ............................. 118a

APPENDIX J Court of Appeals Unpublished Opinion issued September 20, 1996 in case of Davis v Brite Site,

Inc., a foreign corporation, d/b/a Brite Site Retail Cleaning Specialists, Docket No. 187412………………………………….120a

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APPENDIX

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Home Cases, Opinions & Orders

Case Search

COA Case Number: 338937

MSC Case Number: 158789

DAVID SANDERS V SHAWN SPOHN

1 SANDERS DAVID R

Oral Argument: Y Timely: Y

PL-AT RET (76164) HANLEY MATTHEW T

2 SANDERS HEATHER H PL-AT SAM

3 TUMBLEWEED SALOON INC


DF-AE RET (49797) EWING MICHAEL C

CO (38185) FEUER SCOTT L

4 PAINTER INVESTMENTS INC


DF-AE RET (31170) KING DANIEL P

5 CHAUNCEY'S PUB DB

6 SPOHN SHAWN DF

7 PIERCE ZACHARY DF RET (60592) BENSINGER BRADLEY S

COA Status: Case Concluded; File Open MSC Status: Pending on Application

Case Flags: Northern Michigan

06/26/2017 1 App For Leave to Appeal - Civil

06/08/2017 2 Order Appealed From

06/29/2017 3 Appearance - Appellee


Appellate Docket Sheet

Case Docket Number Search Results - 158789

Proof of Service Date: 06/26/2017

Answer Due: 07/17/2017

Fee Code: EPAY

Filed By Pro Per

From: MONTMORENCY CIRCUIT COURT

Case Number: 16-003949-NO

Trial Court Judge: 31173 MACK MICHAEL G

Nature of Case:

Summary Disposition - Partial

Date: 06/29/2017

For Party: 3 TUMBLEWEED SALOON INC DF-AE

Attorney: 49797 - EWING MICHAEL C

Date: 07/14/2017

For Party: 4 PAINTER INVESTMENTS INC DF-AE

Attorney: 31170 - KING DANIEL P

Case Search https://courts.michigan.gov/opinions_orders/case_search/pages/default.a...

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Court of Appeals Docket Entries

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07/14/2017 5 Answer - Application

07/14/2017 6 Answer - Application

07/24/2017 7 Steno Certificate - Tr Request Received

07/24/2017 8 Notice Of Filing Transcript

11/03/2017 9 Transcript Reminder Postcard

11/06/2017 10 Transcript Filed By Party

12/12/2017 13 Submitted on Motion Docket

12/20/2017 14 Order: Application - Grant

01/09/2018 15 Docketing Statement MCR 7.204H

01/29/2018 16 Brief: Appellant


Event No: 1 App For Leave to Appeal - Civil


Filed By Attorney: 31170 - KING DANIEL P


Event No: 1 App For Leave to Appeal - Civil


Filed By Attorney: 49797 - EWING MICHAEL C

Date: 06/23/2017

Reporter: 5175 - O'BRIEN TRACY L

Hearings:

05/22/2017

Date: 07/20/2017


Hearings:

05/22/2017

File Location:

Mail Date: 11/03/2017

Date: 11/06/2017


Filed By Attorney: 76164 - HANLEY MATTHEW T

Hearings:

05/22/2017

Event: 1 App For Leave to Appeal - Civil

District: L

Item #: 1

View document in PDF format

Event: 1 App For Leave to Appeal - Civil

Panel: MJK,AK,BAS

Attorney: 76164 - HANLEY MATTHEW T

Comments: limited to issues raised. AK would peremptorily reverse.

For Party: 1 SANDERS DAVID R PL-AT




Oral Argument Requested: Y

Timely Filed: Y



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02/27/2018 17 Brief: Appellee

02/28/2018 18 Noticed

03/02/2018 19 Brief: Appellee

03/08/2018 20 Record Filed


05/11/2018 26 Telephone Contact


06/20/2018 33 Case Call Update Info

07/11/2018 28 Submitted on Case Call

07/11/2018 35 Oral Argument Audio

10/30/2018 40 Opinion - Per Curiam - Unpublished

10/30/2018 41 Opinion - Dissent




Timely Filed: Y



Record: REQST

Mail Date: 03/01/2018



Timely Filed: Y

Filed By Attorney: 49797 - EWING MICHAEL C


File Location:

Comments: 3 lcf;tr--montmorency circ

Date: 05/10/2018


Attorney: 52854 - CARRON RICHARD F

Comments: co-counsel, same firm as Michael Ewing


Attorney: 52854 - CARRON RICHARD F

Comments: Richard Carron filed appearance as co-counsel, same firm as Michael Ewing per Atty Carrons assistant

Date: 06/20/2018


Attorney: 79579 - STRYCHARZ STEPHANIE L

Comments: Stephanie Strycharz appears for purposes of O/A

Comments: Stephanie Strycharz appears on behalf of Painter Investments for purposes of O/A

District: L

Item #: 24

Panel: AK,ELG,AL


Pages: 8

Panel: AK,ELG,AL

Result: Reversed and Remanded



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12/06/2018 43 SCt: Application for Leave to SCt

12/07/2018 44 SCt: Miscellaneous Filing

12/21/2018 45 SCt: Answer - SCt Application/Complaint

12/27/2018 46 Supreme Court - Record Sent To

01/02/2019 47 SCt: Trial Court Record Received

01/08/2019 48 SCt: Reply - SCt Application/Complaint

01/10/2019 49 SCt: Miscellaneous Filing

02/01/2019 51 SCt Case Caption

05/22/2019 53 SCt Order: MOAA -Oral Argument on Lv Appl

06/07/2019 54 Correspondence Sent

Case Listing Complete

Pages: 10

Author: ELG

Date: 10/30/2018


Attorney: 38185 - FEUER SCOTT L

Supreme Court No: 158789

Answer Due: 01/03/2019

Fee: E-Pay

For Party: 3

Attorney: 49797 - EWING MICHAEL C

Filing Date: 12/07/2018



Comments: Concurrence in leave application filed by Tumbleweed.




File Location:

Comments: sc#158789 3 lcf;tr

1 tr; 3 files



Filed By Attorney: 38185 - FEUER SCOTT L




Comments: Statement in support of reply brief

Proof Of Service Date: 02/01/2019


Proof Of Service Date: 06/07/2019

Comments: Envelope w MOAA order to atty Ewing returned as undeliverable. Address updated; order resent.


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APPENDIXB

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Trial Court Opinion

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STATE OF MICHIGAN IN THE 26TH CIRCUIT COURT FOR THE COUNTY OF MONTMORENCY

DAVID R. SANDERS and HEATHER H. SANDERS,

Plaintiffs,

v.

SHAWN SPOHN, ZACHARY PIERCE, TUMBLEWEED SALOON, INC, a domestic profit corporation, and PAINTER INVESTMENTS, INC., d/b/a/ CHAUNCEY'S PUB, a domestic profit corporation,

Defendants,

and

TUMBLEWEED SALOON, INC.

Cross-Plaintiff;

v.

SHAWN SPOHN and ZACHARY PIERCE,

Cross-Defendants. I -------------------------'

HEIDI M. HODEK (P73966) MATTHEW T. HANLEY (P76164) Ranieri Hanley & Hodek, PLC Attorneys for Plaintiff 4020 Copper View, Ste. 225 Traverse City, MI 49684 (231) 486-6556

BRADLEY S. BENSINGER (P60592) Bensinger, Cotant, & Men.kes, PC Attorney for Defendant/Cross Def. Pierce 308 West Main St. Gaylord, MI 49735 (989) 732-7536

SHAWN SPOHN Defendant/Cross-Def. in Pro Per 245 Tim Stephens Lane Gainsboro, TN 38562

DANIEL P. KING (P31 l 70) - Pederson, Kennan, King

Attorney for Def. Painter Investments, Inc. 4057 Pioneer Dr., Ste. 300 Commerce Township, MI 48390-1363 (248) 363-6400

MICHAEL C. EWING (P49797) Ewing, Carron & Fiato Attorney for Def.I Cross Plaintiff Tumbleweed 550 W. Merrill St., Ste. 110 Birmingham, MI 48009 (248) 262-5403 I

8 mwim11wm ~ RI JUNO 7 ffl1 1

Trial Court Opinion

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OPINION AND ORDER

GRANTING SUMMARY DISPOSITION AS TO DEFENDANTS CHAUNCEY'S PUB AND TUMBLEWEED SALOON

PRESENT: HON. MICHAEL G. MACK, CIRCUIT COURT JUDGE

On December 2, 2014, Plaintiff David Sanders and Defendants Shawn Spohn and

Zachary Pierce engaged in a physical altercation. Earlier in the evening, Spohn and Pierce had

been drinldng beer and liquor at Chauncey's Pub ("Chauncey's") and Tumbleweed Saloon

("Tumbleweed"). Defendants Chauncey's and Tumbleweed now move for summary deposition

pursuant to MCR 2.116(C)(10). Defendants argue, inter alia, that plaintiffs failed to provide

timely written notice of their intent to seek damages under the dramshop act.

The dramshop act is strictly construed. Turnley v Rocky's Teakwood Lounge, 215 Mich

App 371; 547 NW2d 33 (1996). Courts are required to give a common effect to the entire

dramshop act that is consistent with the legislature's intent. La Guire v Kain, 440 Mich 3 67, 3 7 4;

487 NW2d 389 (1'992). MCL 436.1801(4) provides in relevant part:

An action under this section shall be instituted within 2 years after the injury or death. A plaintiff seeking damages under this section shall give written notice to all defendants 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section. Failure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive that notice unless sufficient information for determining that a retail licensee might be liable under this section was not known and could not reasonably have been known within the 120 days.

Plaintiffs met with attorney Samuel Meklir prior to filing suit. On February 3, 2015,

Meklir sent a letter to Tumbleweed which stated as follows,

Please be advised that I represent Mr. David Sanders as a result of injuries he sustained while at the Highway Bar1 which occurred on December 2, 2014.

According to Plaintiff Heather Sanders, Meklir ultimately decided the litigation "wasn't worth it

for him/W/1/fJi1ilrt! ~Yih.®<r~t~t!Y retained their present counsel to pursue this litigation. ll// l\<:

1 The Co~ n~iJ~~tha~ ttlniSfJweJt1oon, Inc.'s tavern is also known as "Highway." See Plaintiffs response brief atpg. 2.

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Plaintiffs dispute the significance of the letter in connection with MCL 436.1801(4).

They present a three-pronged argument. Plaintiffs first argue the affidavit of Meklir proves the

lack of an attorney-client relationship. The Court does not agree. In Meklir's affidavit, he attests

that "[ a ]t no time did I represent the Sanders regarding the personal injury claim that involved

the assault." His letter indicates otherwise. The present tense use of the word "represent"

demonstrates that he actively represented David Sanders on February 3, 2014. The letter also

specifies that his representation was "a result of injuries [David Sanders] sustained while at the

Highway Bar which occurred on December 2, 2014."

Plaintiffs next assert·that they did not believe an attorney-client relationship had been

created. However, the strength of this argument is entirely undercut by Plaintiff Heather ·

Sanders's own testimony:

Q. . .. Did you and David retain another attorney in Southfield to initially pursue this action?

A. That was my original lawyer.

* * * Q. Who was that?

A. Sam Meklir.2

Plaintiffs lastly contend that they did not enter into an attorney-client relationship because

a retainer agreement was not signed. However, this argument overlooks the fact that an attorney

client relationship is not dependent on the payment of a fee or on a formal contract. Macomb Co

Taxpayers Ass 'n v L'Anse Creuse Pub Sch, 455 Mich 1, 11; 564 NW2d 457 (1997). Rather, such

a relationship "may be implied from conduct of the parties ... [and] is sufficiently established

when it is shown that the advice and assistance of the attorney are sought and received in matters

2 Heather Sanders was confronted with Meklir's letter at her deposition. Notably missing from plaintiffs' brief, however, is Heather Sanders' s response to such questioning.

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Trial Court Opinion

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pertinent to his profession." Id And the conduct of the parties here demonstrates that an

attorney-client relationship existed at the time of the letter.

Moreover, the letter was insufficient for purposes ofMCL 436.1801. While the statute

does not specify what the notice must contain, "it is patent that the written notice must, at a

minimum, provide notice to the defendant of the plaintiffs intent to pursue an action under the

dramshop act against the notified defendant." Auto Owners Ins. Co v Olympia Enertainment, Inc.,

310 Mich App 132, 167; 871 NW2d 530 (2015). Here, the letter requested video footage of the

incident to be preserved. It made no reference to the relevant statute, nor any indication that

Sanders would be pursuing a dramshop claim. It cannot, by its plain terms, be read as a notice of

a dramshop claim against the defendants. The statute clearly and unambiguously requires written

notice to "all defendants," and "any defendants" not timely noticed may move for dismissal.

No further issues need be discussed. For all these reasons, Defendants Chauncey's Pub

and Tumbleweed Saloon are GRANTED summary disposition in their favor.

It Is So ORDERED.

Dated: t::, ~ / --- / 7 ------'=-----'---'--=----

HON. MICHAEL G. MACK, CIRCUIT JUDGE

I hereby certify that I served a copy of the foregoing document upon all attorneys/parties of record.

Date: /o--8-li-- tfaAa'if Wroell.4.-'. Cler O

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APPENDIX C

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S DAVID R. SANDERS and HEATHER H. SANDERS, Plaintiffs-Appellants,

UNPUBLISHED October 30, 2018

v No. 338937 Montmorency Circuit Court

TUMBLEWEED SALOON, INC., and PAINTER INVESTMENTS, INC., doing business as CHAUNCEY’S PUB,

LC No. 16-003949-NO

Defendants-Appellees, and SHAWN SPOHN and ZACHARY PIERCE, Defendants.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ. PER CURIAM.

Plaintiffs appeal by leave granted1 the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of the two corporate defendants, both of which are bars. Plaintiffs were dining patrons at Chauncey’s Bar. David Sanders was seriously injured when the two individual defendants, Shawn Spohn and Zachary Pierce,2 violently assaulted him after they had consumed alcohol at both bars. Relevant to the instant appeal, plaintiffs brought claims against both bars for violating the Dramshop Act, MCL 436.1801 et seq., and claims against Chauncey’s for negligent supervision, willful and wanton misconduct, and premises liability. The trial court granted summary disposition based on its finding that a letter written without

1 Sanders v Spohn, unpublished order of the Court of Appeals, entered December 20, 2017 (Docket No. 338937). 2 The individual defendants are apparently facing criminal proceedings arising out of the incident, but we have no knowledge of the details of those proceedings.

Court of Appeals Majority Opinion

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plaintiffs’ knowledge or consent to one of the bars, asking the bar to preserve any evidence the bar possessed of the attack, constituted a failed attempt to provide notice under the dramshop act. We reverse and remand.

I. FACTS

A. The Assault

On the evening of December 2, 2014, plaintiffs David and Heather Sanders were dining at Chauncey’s. Also present were defendants Shawn Spohn and Zachary Pierce, who were drinking and socializing with Michelle Sanders,3 an off-duty employee of Chauncey’s. Spohn and Pierce became boisterous. Heather opined that Pierce appeared flushed, with bloodshot eyes and slurred speech. She also stated that both Michelle and Pierce “had bottles of beer in front of them.” At Michelle’s suggestion, Spohn, Pierce, and Michelle left Chauncey’s and walked to Tumbleweed.4

The bartender at Tumbleweed opined that neither Pierce nor Spohn appeared remarkable, but he only served them one shot of liquor each because they would not desist from “wrestling around.” Michelle testified that she, Spohn, and Pierce were at Tumbleweed for 15 minutes. She testified that at some point during that time, Pierce vomited on the sidewalk, whereupon Michelle texted the Chauncey’s bartender to say that Pierce should not be served any more alcohol if he returned to Chauncey’s.

Michelle left Tumbleweed to return to Chauncey’s, followed by Pierce. At Chauncey’s, Pierce attempted to order another drink. The Chauncey’s bartender refused and asked Pierce to leave. Pierce responded with vulgar language, but he complied. Thereafter, Spohn also returned to Chauncey’s, yelling and wanting to know why he and Pierce had been “cut off.” Spohn was also asked to leave. Spohn allegedly threatened to injure the bartender as well as the owner of Chauncey’s, but eventually he also went outside.

At some point after Spohn and Pierce left, David went out the front door of Chauncey’s. Other witnesses indicated that at that time, Spohn was in the process of damaging a car with a flagpole. When David exited the bar, Spohn kicked him in the chest. David briefly went back into Chauncey’s, told Heather to call 9-1-1, and went back outside. When David came back outside, Spohn and Pierce tackled him and began kicking him in his head and neck. David suffered serious injuries.

B. The Letter

On February 3, 2015, attorney Samuel Meklir sent a letter to Tumbleweed stating that he “represent[ed] Mr. David Sanders as a result of injuries he sustained while at the Highway Bar

3 Michelle is David’s former wife. Because several individuals share a last name, we will refer to them by their first names. 4 Tumbleweed is also known as the “Highway Bar” and the “Hi Way.”


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which occurred on December 2, 2014” and requesting that Tumbleweed preserve any security videos in its possession. Heather testified that Meklir had been her “original lawyer” when he previously represented her in an unrelated prior lawsuit when her daughter received a birth-related injury. She testified that plaintiffs “went in to see [Meklir] to get things going and all that, but when he looked at the case it wasn’t—the travel time and him taking the time up here wasn’t worth [it].” David initially agreed with an inquiry whether he had “hire[d] a firm down in Southfield,” but he immediately clarified that he “talked to [Meklir], but that was it.” David stated that Meklir had instead referred plaintiffs to their current counsel. In an affidavit, Meklir averred that he “spoke with [plaintiffs] regarding a potential personal injury claim,” and “had represented Heather on another matter years ago.” Meklir further averred that following his conversation with plaintiffs, he informed them that he “would not be taking the case or representing them” and that he sent the letter to Tumbleweed “[a]s a favor.” David described Meklir as “[his] wife’s lawyer,” and when asked about Meklir’s letter at his deposition, he stated that he “ha[d] never seen that letter.” Heather presumed that David had “probably” seen the letter, but she did not recall seeing it herself.

Consistent with both David’s and Heather’s testimonies, Meklir averred, “No retainer agreement was ever drafted or signed regarding this incident,” and “[a]t no time did I ever represent [plaintiffs] regarding the personal injury claim that involved the assault on [David].” At oral argument, counsel for Chauncey’s asserted that Meklir had in fact accepted the case and then decided after investigation to decline further involvement. We have not been able to find any evidence in the record, nor has any been cited to us, in support of that statement. Counsel for Chauncey’s also focused on David allegedly admitting that he had hired Meklir. We note that counsel omitted David’s follow up explanation and emphatic statements that he did not retain Meklir. As our dissenting colleague sets forth in detail, plaintiffs both testified that they saw and talked to Meklir but did not retain him.

C. The Bars’ Summary Disposition Motion

The bars argue that plaintiffs failed to provide them with proper and timely notice of a dramshop claim. Pursuant to MCL 436.1801(4), plaintiff was required to provide notice of a dramshop claim “within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under [the dramshop act].” The bars assert that, notwithstanding the sworn testimony to the contrary, Meklir’s letter conclusively and irrebuttably establishes that plaintiffs and Meklir had entered into an attorney-client relationship by the time the letter was sent. They further argue that because the letter only addressed Tumbleweed, it could not serve as notice to Chauncey’s, and because it contained no indication that plaintiffs were seeking a dramshop claim, it was not sufficient to serve as notice to Tumbleweed. The bars conclude that by the time they received notice from plaintiffs’ counsel, more than 120 days had elapsed since plaintiffs first entered into “an attorney-client relationship for the purpose of pursuing a claim under [the dramshop act].” Consequently, they argue that plaintiffs’ dramshop action must be dismissed. The trial court agreed.

II. STANDARD OF REVIEW

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v


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Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the nonmoving party and grants summary disposition only when the evidence fails to establish a genuine issue regarding any material fact. Id. at 120.

The trial court “may not make findings of fact when deciding a summary disposition motion,” and it may not grant summary disposition if “the record leaves open an issue on which reasonable minds could differ.” Price v Kroger Co of Mich, 284 Mich App 496, 500; 773 NW2d 739 (2009) (emphasis added). “A court ‘is not permitted to assess credibility, or to determine facts’ on a motion for summary disposition.” Lima Twp v Bateson, 302 Mich App 483, 492; 838 NW2d 898 (2013), quoting Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994), rev’d in part on other grounds Smith v Globe Life Ins Co, 460 Mich 446, 445 n 2; 597 NW2d 28 (1999).

The interpretation and application of statutes, rules, and legal doctrines is also reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

III. ANALYSIS – DRAMSHOP CLAIM

A. Notice Required Under the Dramshop Act

The dramshop act provides, in relevant part, that “[a] retail licensee shall not directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a person who is visibly intoxicated.” MCL 436.1801(2). The dramshop act’s notice provision, MCL 436.1801(4) provides in relevant part:

An action under this section shall be instituted within 2 years after the injury or death. A plaintiff seeking damages under this section shall give written notice to all defendants within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section. Failure to give written notice within the time specified shall be grounds for dismissal of a claim as to any defendants that did not receive that notice unless sufficient information for determining that a retail licensee might be liable under this section was not known and could not reasonably have been known within the 120 days.

“[I]t is important to ensure that words in a statute not be ignored, treated as surplusage, or rendered nugatory.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002); see also C.G. Automation and Fixture, Inc v Autoform, Inc, 291 Mich App 333, 338; 804 NW2d 781 (2011). MCL 436.1801(4) unambiguously requires that plaintiffs and Meklir must have specifically entered into “an attorney-client relationship for the purpose of pursuing a claim under [the dramshop act]” before the notice requirement is triggered.

B. Existence of an Attorney-Client Relationship

“The existence of an attorney-client relationship is a question of fact.” 7 Am Jur 2d (2017), Attorneys at Law, § 137, p 221. The nature of an attorney-client relationship is that of agency. Russell v City of Detroit, 321 Mich App 628, 641; 909 NW2d 507 (2017); see also


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Stone v Bank of Commerce, 174 US 412, 421-422; 19 S Ct 747; 43 L Ed 1028 (1899). “The law of Michigan is that disputes over the existence and scope of an agency relationship are properly determined as a question of fact.” Michigan Nat Bank of Detroit v Kellam, 107 Mich App 669, 678; 309 NW2d 700 (1981). The existence of a particular attorney-client relationship “depends on the relations and mutual understanding of the parties, on what was said and done, and all the facts and circumstances of the particular undertaking.” Case v Ranney, 174 Mich 673, 682; 140 NW 943 (1913).

“[A] unilateral act is not sufficient to create an attorney-client relationship, the attorney-client relationship being based in contract.” Scott v Green, 140 Mich App 384, 400; 364 NW2d 709 (1985). “It is an accepted practice, particularly in an age of legal specialization, for an attorney to represent a client only as to a specific claim.” Jackson v Pollick, 751 F Supp 132, 134 (ED Mich, 1990). Furthermore, “[c]lients consult attorneys for a wide variety of reasons,” one of which is simply to obtain advice. Swider & Berlin v United States, 524 US 399, 407-408; 118 S Ct 2081; 141 L Ed 2d 379 (1998).

We find persuasive5 the following observation from the Supreme Court of California:

That plaintiff [attorney] told the defendant that it would be necessary to carry out two proceedings, one to establish the fact of his stepmother’s death and the other to quiet his title against his stepbrother’s claim, did not result in the creation of the attorney-client relationship in view of the fact that plaintiff made it clear to defendant that he would only undertake to act for him in these matters when an agreement for his fee had been reached. . . . No attorney could safely or reasonably negotiate any fee agreement with a prospective client without some preliminary investigation of the facts of the case and a disclosure to the prospective client of the legal steps which in his judgment must be taken. If by the very fact of such investigation and disclosure the relationship of attorney and client would thereby be created, the attorney would be placed in the impossible position of becoming the prospective client’s attorney while he was attempting to reach an agreement with him as to whether he should become his attorney or not. [Setzer v Robinson, 57 Cal 2d 213, 217; 368 P 2d 124; 18 Cal Rptr 524 (1962).]

Some discussion ensued at oral argument regarding the duty of confidentiality. Clearly, the duty of confidentiality arises immediately, but the existence of that duty does not establish an attorney-client relationship. As the Preamble to the Michigan Rules of Professional Conduct expressly states:

Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6,

5 We appreciate that cases from other jurisdictions are not binding on us, but we may find them persuasive. See People v Bell, 276 Mich App 342, 349; 741 NW2d 57 (2007).


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that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.

See also, Restatement 3d of the Law Governing Lawyers § 15(1)(a) (2000):

When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, the lawyer must . . . not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client . . .

Consequently, Meklir owes a duty of confidentiality to plaintiffs irrespective of whether any other relationship between them ever existed. However, an initial consultation and a modicum of preliminary research does not establish an attorney-client relationship in the absence of a true “meeting of the minds.”

Our dissenting colleague correctly observes that an attorney-client relationship may be established in the absence of a formal contract. Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Schools, 455 Mich 1, 11; 564 NW2d 457 (1997). Furthermore, “every delegation of power carries with it authority to do all things which are reasonably necessary or proper to efficiently carry into effect the power conferred.” Emery v Ford, 234 Mich 11, 28; 207 NW 856 (1926). However, “[t]he rendering of legal advice and legal services by the attorney and the client’s reliance on that advice or those services is the benchmark of an attorney-client relationship.” Macomb Co Taxpayers Ass’n, 455 Mich at 11 (emphasis added). In other words, even if no formal contract is required, an attorney-client relationship does not arise purely because such a relationship is contemplated. Furthermore, a purported client’s surprise at an attorney having done anything on his behalf certainly would be relevant.6 Imputing an attorney-client relationship merely because a potential client walks in the door and talks about a potential case would be contrary to fundamental contract and agency principles, and it would have a profound impact on the practice of law.

Here, the sworn, testimonial evidence unequivocally establishes that plaintiffs and Meklir never arrived at a “meeting of the minds” for Meklir to represent them in any way. Meklir’s use of the word “represent” in his letter might reasonably be construed to the contrary. However, it might also be construed as carelessness or a unilateral act. Even if the letter can be construed as equivalent to the kind of deposition testimony that may not be disputed in an affidavit, Dykes v William Beaumont Hosp, 246 Mich App 471, 479-482; 633 NW2d 440 (2001), there is no prohibition against providing clarification and explanation. Wallad v Access BIDCO, Inc, 236 Mich App 303, 312-313; 600 NW2d 664 (1999). We appreciate that in general “a party is bound by representative admissions of counsel.” Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1993). However, we decline to judicially create a Catch-22 where the

6 We do not believe that listening to a potential client’s concerns and referring that potential client to another attorney constitutes “rendering advice” or “taking action on their behalf.”


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central question is whether counsel was representing the party at all.7 Under MCR 2.116(G)(2), the trial court must consider all of the submitted evidence. The trial court’s role is not to resolve factual questions; instead, it is obligated to view the evidence in the light most favorable to the non-moving party. Maiden, 461 Mich at 118-120; Price, 284 Mich App at 499-500. The evidence whether plaintiffs and Meklir entered into an attorney-client relationship is at the most ambiguous or completely dependent upon Meklir’s and plaintiffs’ credibilities, which precludes summary disposition.8

C. For the Purpose of Pursuing a Claim Under the Dramshop Act

There are circumstances under which an attorney-client privilege for the purpose of pursuing a dramshop claim may be presumed in the absence of affirmative evidence to the contrary. See Langrill v Stingers Lounge (Langrill II), 471 Mich 926, 926; 689 NW2d 228 (2004). However, in every such case, there was no dispute that the plaintiffs had actually entered into attorney-client relationships for the purpose of bringing claims; the question was only as to the precise nature of the relationship, not its existence. Langrill v Stingers Lounge (Langrill I), 261 Mich App 698, 702; 683 NW2d 225 (2004); Chambers v Midland Country Club, 215 Mich App 573, 575-578; 546 NW2d 706 (1996); Lautzenheiser v Jolly Bar & Grille, Inc, 206 Mich App 67, 68-70; 520 NW2d 348 (1994). As discussed, there is little, if any, competent evidence establishing any attorney-client relationship in this case. No authority has been cited holding that a mere consultation necessarily implies an intended purpose to bring a particular claim. See Swider & Berlin, 524 US at 407-408. We decline to create any such authority.

At a summary disposition stage of proceedings, the trial court went too far in concluding that the evidence showed plaintiffs to have “enter[ed] an attorney-client relationship for the purpose of pursuing a claim under [the dramshop act]” at any time prior to their retention of present counsel. There exists a genuine question of fact regarding the very existence of a relationship, if any, between plaintiffs and Meklir. Therefore, the trial court lacked a basis for imputing any given scope of representation to Meklir, even if the letter could be construed as anything beyond an initial investigation. The trial court erred in concluding that plaintiffs’ notice to the bars under MCL 436.1801(4) was untimely.

IV. ANALYSIS – OTHER CLAIMS

The trial court also granted summary disposition as to plaintiffs’ other claims against Chauncey’s. The trial court did not articulate why, and we decline to speculate. Our review is de novo, and we will affirm a correct result even if arrived at for the wrong reason. Kirl v

7 Furthermore, in Dykes and Kaufman & Payton and similar cases, the principle discussed was whether an affidavit could specifically contradict deposition testimony, not other evidence in general. There is otherwise nothing in MCR 2.116(G)(2) establishing a “hierarchy of evidence in summary disposition analysis.” 8 Additionally, the courts have long rejected slavishly applying talismanic meanings to words. See In re Traub Estate, 354 Mich 263, 278-279; 92 NW2d 480 (1958).


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Zinner, 274 Mich 331, 336; 264 NW 391 (1936). Nevertheless, counsel for both bars expressly requested that the question of plaintiffs’ remaining claims be remanded to the trial court in the event further proceedings were necessary, and we agree that the parties’ remaining arguments would be better first entertained and ruled on by the trial court. Thus, we limit our interlocutory review in this matter to the reason articulated by the trial court for granting summary disposition. We hold only that the Meklir letter did not constitute fatally defective notice under the dramshop act or conclusive proof of an attorney-client relationship for the purpose of pursuing a claim under the dramshop act.

V. CONCLUSION

We reverse the trial court’s grant of summary disposition, and we remand for further proceedings. The trial court shall afford the parties an opportunity to brief and argue the remaining issues, and it may conduct any other proceedings it deems proper. We do not retain jurisdiction. Plaintiffs, being the prevailing parties, may tax costs. MCR 7.219(A).

/s/ Amy Ronayne Krause /s/ Anica Letica


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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S DAVID R. SANDERS and HEATHER H. SANDERS, Plaintiffs-Appellants,

UNPUBLISHED October 30, 2018

v No. 338937 Montmorency Circuit Court

TUMBLEWEED SALOON, INC.,1 and PAINTER INVESTMENTS, INC., doing business as CHAUNCEY’S PUB,

LC No. 16-003949-NO

Defendants-Appellees, and SHAWN SPOHN and ZACHARY PIERCE, Defendants.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ. GLEICHER, J. (dissenting).

The issue presented is whether plaintiffs David and Heather Sanders entered into an attorney-client relationship with Samuel Meklir for the purpose of pursuing a claim under the dramshop act. The majority highlights various evidentiary discrepancies that surfaced after defendants Tumbleweed Saloon and Chauncey’s Pub challenged the timeliness of plaintiffs’ notice of their claim, and concludes that further fact-finding is required.

The existence (or nonexistence) of an attorney-client relationship is a legal question driven by facts. No material facts remain in dispute. Further factual development is unnecessary, as reasonable minds could not differ regarding the existence or the scope of the parties’ attorney-client relationship. I respectfully dissent.

1 Tumbleweed is also known as the “Highway Bar” and the “Hi Way.”

Court of Appeals Dissenting Opinion

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I

The dramshop act, MCL 436.1801 et seq., governs claims alleging “negligent furnishing, selling, or giving away of liquor.” Millross v Plum Hollow Golf Club, 429 Mich 178, 189; 413 NW2d 17 (1987). One provision of the act requires a plaintiff contemplating an action against a retail licensee to “give written notice to all defendants within 120 days after entering an attorney-client relationship for the purpose of pursuing a claim under this section.” MCL 436.1801(4). Plaintiffs provided written notice of their intent to file claims against the Tumbleweed Saloon and Chauncey’s Bar more than 120 days after consulting with Meklir. The drinking establishments were awarded summary disposition based on their contention that plaintiffs’ meeting with Meklir triggered the running of the notice period.

The majority is certainly correct that when reviewing a summary disposition motion brought under MCR 2.116(C)(10), we must consider the evidence in the light most favorable to the nonmoving party, refrain from making our own factual findings, and credit the nonmovants with the benefit of all reasonable and supportive inferences flowing from the evidence. But this is not a run-of-the-mill (C)(10) motion, which asserts that the moving party is entitled to judgment as a matter of law. Rather, defendants’ motion for summary disposition presents a preliminary legal question: did plaintiffs enter into an attorney-client relationship with Meklir for the purpose of pursuing a claim under the dramshop act? Like other preliminary legal questions—for example, whether a governmental entity is entitled to immunity—facts underlie the legal inquiry. Preliminary legal issues are usually resolved by judges, not juries. When material facts relevant to a preliminary legal question are in dispute, the trial judge resolves the factual questions after an evidentiary hearing. See Dextrom v Wexford Co, 287 Mich App 406, 431-432; 789 NW2d 211 (2010).2 If no material facts are in dispute, “or if reasonable minds cannot differ regarding the legal effect of the facts,” a preliminary legal question is strictly one of law. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006) (cleaned up).3 Whether plaintiffs formed an attorney-client relationship with Meklir for the purpose of pursuing a dramshop act claim is a preliminary legal question capable of resolution by the court.

The circuit court has already considered the evidence the majority proposes for reconsideration (or expansion) at an evidentiary hearing. After reviewing the presuit letter Meklir sent to Tumbleweed, Meklir’s postsuit affidavit, and plaintiffs’ deposition testimonies, the trial court concluded that an attorney-client relationship existed when Meklir sent the letter. The court did not clearly err in resolving this legal question. I perceive no need for further fact finding, as the material evidence supports only one additional, interrelated conclusion: that

2 The majority does not make it clear whether the additional fact-finding it orders is to be made by the judge or a jury. 3 This opinion uses the new parenthetical (cleaned up) to improve readability without altering the substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets, alterations, internal quotation marks, and unimportant citations have been omitted from the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


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Meklir knew or should have known that plaintiffs had a potential dramshop action when he met with them at his office.

II

The facts material to the existence and scope of plaintiffs’ attorney-client relationship with Meklir are either not in dispute, or correctly were deemed immaterial by the trial court. The majority expounds on several immaterial facts, such as David Sanders’s denial of having seen Meklir’s letter. I recapitulate the material facts in full because they demonstrate that the trial court got it right

Plaintiff David Sanders was badly beaten by two men. Viewed in the light most favorable to David, the evidence supports that his assailants were visibly intoxicated at the time they were served alcohol in defendant dramshops. David learned the names of the men who attacked him within a few days after the beating.

About two months later, David and Heather Sanders consulted attorney Samuel Meklir, a specialist in personal injury litigation, in Meklir’s Southfield office. After his meeting with the Sanders, Meklir wrote the following letter to the Tumbleweed Saloon:

Please be advised that I represent Mr. David Sanders as a result of injuries he sustained while at the Highway Bar which occurred on December 2, 2014.

I understand that you have a videotaping system that would have recorded the activities, which occurred and during which, Mr. Sanders was injured.

We believe that the video evidence, which is in your possession, would be critically important.

We would ask that the tapes, discs, or digital storing device the events are kept on, be preserved and not subject to spoliation.

Our firm would be willing to view the information at your convenience.

I thank you in advance for your cooperation. [Emphasis added.]

Here is David’s deposition testimony regarding his consultation with Meklir:

Q. . . . But this firm that is representing you now is not the first firm you hired, is it?

A. I’m not sure.

Q. Didn’t you hire a firm down in Southfield?

A. Yeah. They’re the ones that recommended these guys.

Q. Okay. Who is the firm you hired down in Southfield?


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A. That I couldn’t tell you at this point in time. I don’t recall.

Q. Maybe I can.

A. Oh, it was - -

Q. Sommers Schwartz, wasn’t it?

A. Yes.

Q. And you hired Samuel Meklir, didn’t you?

A. Samuel Meklir is the one that referred us to that - - to him yes.

Q. But you retained Samuel Meklir initially?

A. I didn’t retain - - I didn’t retain him. I didn’t sign no papers with him. I didn’t retain nothing with him.

Q. You never retained him?

A. No. I talked to him, but that was it.

Q. Well, he wrote a letter to Tumbleweed saying that you had retained him to pursue a case against Tumbleweed. Are you aware of that?

A. I didn’t - - no; I’m not aware of that, no.

Q. Do you dispute that - - do you dispute Mr. Meklir - - Attorney Meklir, that you did not retain him?

A. I did not - - not that I’m aware of we did not retain him. I don’t recall signing any papers with him. I remember going down and seeing him, and he said not to sign any papers at this time.

* * *

A. I didn’t - - yeah. I didn’t - - I didn’t hire him. I didn’t sign no papers with Mr. Meklir.

Q. Okay. But you were not injured at the Tumbleweed Bar, were you?

A. No.

Q. How did he learn that; do you know?

A. I told you I went down and seen Mr. Meklir. I talked to Mr. Meklir, but I did not sign any papers with him.


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Q. What did you tell him?

A. I explained what happened to him; what - - the whole situation happened there.

Q. What did you tell him specifically?

A. I don’t remember what I told him specifically, to be honest with you.

Q. You don’t?

A. No, I don’t.

Q. How did you learn his name?

A. He’s my wife’s lawyer.

Q. Heather?

A. Heather.

Here is Heather Sanders’s testimony regarding the same meeting:

Q. Okay. Is Mr. Meklir the one . . . that represented you . . . through your daughter in the birth case?

A. Yes.

Q. Okay. And did you and David retain him to help you out in this case?

A. We basically worked our way up here. He showed us where to go, who to see.

Q. But you initially went to see him; right?

A. Yes.

Q. Did you retain him?

A. No.

Q. Okay. Do you know why Mr. Meklir would have written a letter to the Tumbleweed saying that he was retained by - - by you and David?

A. We went in to see him to get things going and all that, but when he looked at the case it wasn’t - - the travel time and him taking the time up here wasn’t worth - -

Q. Wasn’t worth it for him?


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A. Yeah.

Q. Well, do you know why he would say that - - why he would write a letter indicating that you had retained him?

A. I probably - -

Q. Have you seen the letter?

A. He probably did. I just don’t recall at the time.

* * *

Q. Yeah, the “Please be advised that I represent Mr. Sanders”, do you see that?

A. Okay.

Q. Yeah. Do you dispute that?

A. No.

Q. Okay. Do you see anything else in the letter that, to your knowledge is glaringly inaccurate?

A. There is no video evidence that we have. [Emphasis added.]

After the bars filed motions for summary disposition, Meklir signed an affidavit averring in relevant part:

5. Following our conversations, I informed the Sanders that I would not be taking the case or representing them.

6. As a favor, I sent a letter regarding the preservation of security tapes.

7. No retainer agreement was ever drafted or signed regarding this incident.

8. At no time did I ever represent the Sanders regarding the personal injury claim that involved the assault on Mr. Sanders.

David Sanders testified that he “explained what happened . . . the whole situation . . .” during his meeting with Meklir. Meklir knew that the Sanders had consulted him regarding a “personal injury claim that involved the assault on Mr. Sanders” at a bar. This evidence establishes that plaintiffs shared with Meklir the facts detailed in the majority opinion, including Spohn’s behavior at Chauncey’s after his alcohol supply had been curtailed. David Sanders never disavowed that Meklir represented him, at least initially, with regard to this claim:


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Q. Yeah, the “Please be advised that I represent Mr. Sanders”, do you see that?

A. Okay.

Q. Yeah. Do you dispute that?

A. No.

Q. Okay. Do you see anything else in the letter that, to your knowledge is glaringly inaccurate?

A. There is no video evidence that we have.

These are the material facts. They support only one reasonable conclusion: plaintiffs entered into an attorney-client relationship with Meklir for the purpose of pursuing a dramshop claim. The circuit court expressly determined that during their meeting in Southfield, plaintiffs had an attorney-client relationship with Meklir, and implicitly found that their meeting was for the purpose of pursuing a claim under the dramshop act. I discern no clear or legal error.

III

A few preliminary points bear mention. First, no formal contract is required to create an attorney-client relationship. Rather, “[t]he employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession.” Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Sch, 455 Mich 1, 11; 564 NW2d 457 (1997), citing 7 Am Jur 2d, Attorneys at Law, §118, pp 187-188. That Meklir was not formally retained is irrelevant.

Second, Meklir did not need plaintiffs’ permission to send the letter. In writing to one of the drinking establishments, Meklir acted as an agent for plaintiffs. His authority to act on their behalf was not limited to what they may have expressly authorized him to do. According to Slocum v Littlefield Pub Sch Bd of Ed, 127 Mich App 183, 194; 338 NW2d 907 (1983):

Agents have the implied power to carry out all acts necessary in executing the principal’s expressly conferred authority. Whether the act in question is within the authority granted depends upon the act’s usual or necessary connection to accomplishing the purpose of the agency. [Id. (cleaned up).]

For example, the “authority to act on behalf of a principal may include the ability to undertake acts necessary to ensure service and to provide notice.” Russell v Detroit, 321 Mich App 628, 641; 909 NW2d 507 (2017). Therefore, plaintiffs’ claim that they did not specifically authorize Meklir to send the letter is irrelevant.

Third, most of the averments in Meklir’s self-serving affidavit are also immaterial. Whether Meklir thought he had formed an attorney-client relationship with plaintiffs does not matter. “In determining whether an attorney-client relationship exists, . . . the focus is on the client’s subjective belief that he is consulting a lawyer in the lawyer’s professional capacity and


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his intent is to seek professional legal advice.” Grace v Ctr for Auto Safety, 72 F3d 1236, 1242 (CA 6, 1996) (cleaned up). Meklir’s post-hoc statements that he sent the letter as “a favor” and that he did not “represent” plaintiffs, do not refute that plaintiffs visited him not to engage in idle chit-chat, but to obtain legal advice. Thus, the facts that (1) plaintiffs and Meklir had no retainer agreement, (2) plaintiffs did not specifically or expressly authorize Meklir to write to Tumbleweed, and (3) Meklir ultimately decided to decline representation due to time or location constraints, are not facts material to the legal question at the heart of defendants’ summary disposition motion.

The majority highlights that Meklir’s post-lawsuit affidavit demonstrates that he and plaintiffs never reached a “meeting of the minds” regarding representation and posits that his letter stating otherwise should be ignored. Despite claiming to represent David Sanders in that letter and in the same breath requesting access to video evidence, Meklir’s affidavit asserts the opposite—that he actually refused to represent plaintiffs after meeting with them. Meklir’s dodging and weaving does not create a material fact question regarding the legal issue at the heart of this dispute. When considering the material evidence, reasonable minds could not differ as to the ultimate conclusion that as a matter of law, Meklir and plaintiffs entered into an attorney-client relationship for the purpose of pursing a dramshop action.

The majority rejects that Meklir’s letter evidences an attorney-client relationship, insisting that unlike the “testimonial” evidence Meklir provided in his affidavit, the letter is consistent with “carelessness or a unilateral act.” That is a stretch, in my view. And the trial court agreed when it decided to reject the averment. As the finder of preliminary facts relevant to legal determinations, the trial court’s view prevails unless it is clearly erroneous. It is not.

Meklir’s affidavit does not state that he acted “carelessly” or “unilaterally” in declaring that he “represented” plaintiffs and sought video evidence on their behalf. The majority permits Meklir to contradict and disavow the statement in his letter, holding that the circuit court must accept Meklir’s affidavit and disregard the letter. Abundant Michigan caselaw holds that a witness may not create a factual dispute by submitting an affidavit that contradicts his prior testimony. See Dykes v William Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d 440 (2001). It follows that a question of fact cannot be created by an affidavit completely at odds with a witness’s recorded words, whether sworn or not—particularly when the sworn testimony offers no explanation for the prior statement. The trial court reached the same conclusion.

But in the end, it does not matter. Even disregarding the “I represent” statement, the evidence establishes that plaintiffs met with Meklir for the purpose of pursuing a dramshop claim. When plaintiffs consulted Meklir, all three knew that David Sanders had been beaten by two intoxicated men who were served alcohol at the Tumbleweed and Chauncey’s. During their depositions plaintiffs did not claim to have met with Meklir to discuss an auto accident or a medical malpractice case or anything else. They told him the story, and Meklir wrote a letter seeking evidence to corroborate it. Plaintiffs’ awareness of these facts suffices to create a presumption that they consulted Meklir to discuss a potential dramshop claim, and none of the evidence undercuts or weakens this presumption. Nothing more is necessary to satisfy the statute.


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This is not the first case in which parties have disputed whether an initial meeting with counsel was for the purpose of pursuing a dramshop claim, starting the 120-day clock. One such case reached the Supreme Court, which spelled out the guiding legal precepts in a brief order. The majority attempts to distinguish Langrill v Stingers Lounge, 471 Mich 926; 689 NW2d 228 (2004), but I find the effort unconvincing.

Langrill arose from an auto accident. Langrill v Stingers Lounge, 261 Mich App 698, 699; 683 NW2d 225 (2004). The defendant driver pleaded guilty to operating a motor vehicle while under the influence of liquor. Id. at 700 n 1. The plaintiff sued the driver and obtained a large default judgment. Id. at 700. The plaintiff then notified Stingers of her intent to file a dramshop action, and amended her complaint to add this claim. The trial court granted summary disposition to Stingers because the plaintiff’s notice was sent beyond the 120-day period. Id. This Court reversed, observing that the plaintiff’s “retainer agreement expressly stated that she retained her attorney for the purpose of an auto negligence claim, not a dramshop action.” Id. at 702.

The Supreme Court vacated this Court’s order, remanding to the trial court for further proceedings. Langrill, 471 Mich at 926. The Court explained that “[b]ecause plaintiff did not present any evidence to the contrary, there is a presumption that the attorney-client relationship she entered into with her first attorney, who filed the original complaint in this matter, included the purpose of pursuing a claim under MCL 436.801.” Id. The Supreme Court directed the trial court to grant summary disposition to the defendant if the court found that “sufficient information for determining that defendant might be liable under MCL 436.1801” was known or reasonably could have been known “within 120 days of the beginning of that first attorney-client relationship.” Id.4

Langrill is on-point. Meklir’s letter stated that Meklir “represent[ed]” David “as a result of injuries he sustained while at the Highway Bar[.]” Let’s assume that Meklir inadvertently used the term “represent,” and join the majority in ignoring it. The balance of Meklir’s letter demonstrates that he either understood that a dramshop action was possible, or should have reached that realization. Meklir’s request for preservation of video evidence of the events inside the bar strongly supports the former, as the video would potentially provide evidence that David’s assailants were visibly impaired when they were served alcohol. There was no other reason to obtain the videotape. But regardless, Meklir should have known that a dramshop action was an option assuming the evidence supported it, and that is enough under Langrill.

4 This holding places on the consulted attorney an obligation to be aware of the elements of a dramshop claim and the notice requirement. Under different circumstances, a potential plaintiff may not know that a potential defendant was intoxicated or had been served alcohol while visibly impaired. Theoretically, this information could emerge only during discovery. In those circumstances, the attorney would have no obligation to provide notice at the time of the first consultation. Here, however, the individual defendants’ inebriation and the involvement of the drinking establishments were known from the outset.


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Plaintiffs’ testimonies further buttress the presumption that their attorney-client relationship with Meklir was for the purpose of pursuing a dramshop claim. Neither plaintiff mentioned another reason for the consultation. David admitted that he “explained what happened” to Meklir: “the whole situation [that] happened there.” Heather recalled that she and her husband “went in to see [Meklir] to get things going and all that,” and that Meklir “showed us where to go, who to see.” Plaintiffs met with Meklir because Meklir is a lawyer and they wanted legal advice. Meklir not only gave them advice; he took an action on their behalf.

This evidence is consistent with only one reasonable and material inference: Meklir had sufficient information to understand that plaintiffs had a potential cause of action under the dramshop act. Whether Meklir intended to represent plaintiffs for the long-haul is really beside the point. He had a relationship with them of attorney and client during a meeting about a dramshop claim. I would affirm the circuit court.

/s/ Elizabeth L. Gleicher


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APPENDIX D

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Letter of Representation from Samuel Meklir 2/3/15

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...... ,

-····

: .. . ' .

-: SOMMERS ·. SCHWAR1Z _ LAWOfflC£S ';w, ·,: .·,, • •' ,, '• :. I

Highway Bar

SAMUEL A. MEKLIR Attorney at Law

Direct Phone: 248-552-1000 Direct Fax: 248-936-1981 [email protected]

231 North State Street. Hillman, Ml 49746

,,,{;.

Re: David Sanders

Dear Sir/Madam: .

February 3, 2015

· Please be advised that I represent Mr. David Sanders as a result of injuries he sustained while at the Highway Bar which occurred on December 2, 2014.

I understand that you have a videotaping system that would have recorded the activities, which occurred and during which, Mr. Sanders was· injured.

We believe that the video evidence, which is in your possession, would be critically important.

We would ask that- the tapes, discs, or digital storing device the events are kept on, be preserved and not subject to spoliation.

Our firm would be willing to view the information at your convenience.

I thank you in advance for your cooperation.

SAM/af

WWW,SOMMERSPC,COM

Very truly yours,

SAMU~L A. MEKLIR Direct Dial: (248) 784-6610 [email protected]

I Ill~ DEPOSITION ::¥ l~ EXHIB\T. 0 5l \ _::( i - ....., ffi \) • ~11d.S-~

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I,l"'!,.,, ' ' ' f • • ~ • t • • ' ' ' • • ' • • • I I

ONE TOWNE SQUARE, 17™ FLOOR, SOUTHFIELD, Ml 48076 I MAIN: 248-355-0300 I FAX:

M~nlr.hl M61 PR11r.r1r.r ~ I PFRllONAI INJURY (J I CLASS ACTION ~ I EMPWYMENT lOl I COMMERCIAL LAW & INTELLECTUA

APPENDIX E

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Affidavit of S. Meklir 5/10/17

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STATE OF MICHIGAN

IN THE 26th CIRCUIT COURT OF MONTMORENCY COUNTY

DAVID R. SANDERS, an individual,

and

HEATHER H. SANDERS, an individual,

Plaintiffs, V

SHAWN SPOHN, an individual,

ZACHARY PIERCE,

an individual, TUMBLEWEED SALOON, INC,

a domestic profit corporation, and

File No.16- 003949" NO

Hon. MICHAEL G. MACK

PAINTER INVESTMENTS, INC d/b / a Chauncey's Pub a domestic profit corporation.

Defendants.

Heidi M. Hodek (P73966)

Matthew T. Hanley (P76164)

Ranieri Hanley & Hodek, PLC Attorneys for Plaintiff 4020 Copper View, Ste. 225 Traverse City, MI 49684

(231) 486-6556

Bradley S. Bensinger (P60592)

Bensinger, Cotant & Menkes, PC Attorney for Defendant/ Cross Def. Pierce 308 West Main Street Gaylord, MI 49735

(989) 732-7536

Michael C. Ewing (P49797)

Attorney for Defendant Tumbleweed

550 W. Merrill St, Suite 110

Birmingham, MI 49009 (248) 262-5403

Daniel P. King (P31170)

Pedersen, Keenan, King Attorney for Def. Painter Investments, Inc

d/b/a Chauncey's Pub 4057 Pioneer Drive, Suite 300

Commerce Township, MI 48390-1363 (248) 363-6400


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AFFIDAVIT OF SAMUEL A. MEKLIR

STATE OF MICHIGAN

COUNTY OF OAKLAND

) ) ss. )

SAMUEL A. MEKLIR, being first duly sworn, deposes and states:

1. I have personal knowledge of the facts stated herein and, if called upon,

am competent to testify about them.

2. I am a senior shareholder attorney at Sommers Schwartz1 PC.

3. I have been a practicing attorney since 1969 and practice primarily in the

area of personal injury litigation.

4. I am famUiar with David and Heather Sanders and spoke with them

regarding a potential personal injury claim. I had represented Heather on

ru1other matter years ago.

5. Following our conversations, I informed the Sanders that I would not be

taking the case or representing them.

6.

7.

8.

As a favor1 I sent a letter regarding the preservation of security tapes.

No retainer agreement was ever drafted or signed regarding this incident.

Atno time did I ever represent the Sanders regarding the personal injury

claim that involved the assault on Mr. Sanders.

Further, Affiant sayeth not.

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·-------·--·-- -·

Sa:muel A. Meklir

. ,/ ~Ai Subscribed and sworn to before me this / l<VJ'\ciay of Apri!, 2017.

/~// L -·~ ~~~:~-<.J-~ 1 Nota.ry Public

County, __ _ Acting in County, ___ _ My Commission Expires:

3

ALEXIS ELENA FERNANDEZ NOTARY PUBLIC, STATE OF Ml

COUNTY OF WAYNE MY COMMISSION EXPIRES Jun 29, 2018

ACTING IN COUNTY OFP/1/<::iA'iili.

g; 0 t'd

< § CT' '-< ~ 0 0 > ~ ......._ N \0 ......._ N 0 ...... 00 Vl

N (.;.) .. N Ut

'"d ~

APPENDIX F

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Plintiff's Complaint and Jury Demand

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STATE OF MICHIGAN

IN THE 26th CIRCUIT COURT OF MONTMORENCY COUNTY

DAVID R. SANDERS, an individual,

and HEATHER H. SANDERS, an individual,

Plaintiffs,

V

SHAWN SPOHN, an individuat ZACHARY PIERCE,

an individual, TUMBLEWEED SALOON, INC,

a domestic profit corporation, and

File No. 16 -(jffll/11 NO

Hon. MICHAEL G. MACK

PAINTER INVESTMENTS, INC d/b/a Chauncey's Pub

a domestic profit corporation.

Defendants.

Heidi M. Hodek (P73966) MatthewT. Hanley (P76164) Ranieri Hanley & Hodek, PLC Attorneys for Plaintiff 4020 Copper View, Ste. 225

Traverse City, MI 49684 (231) 486-6556

COMPLAINT AND JURY DEMAND

There is no other pending or resolved dvil action m·ising out of the transaction or occurrellce alleged in this complaint.

COMPLAINT

1

-.--~-~--:.-:.,~. ~-----·---··-··-· ---- --


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Plaintiffs DAVID R. SANDERS and HEATHER H. SANDERS state as

follows:

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff DAVID R. SANDERS is a resident of Montmorenc

County, State of Michigan.

2. Plaintiff HEATHER H. SANDERS is a resident of Montmorenc

County, State of Michigan.

3. Upon information and belief, Defendant SHAWN SPOHN is a

resident of Jackson County, Tennessee.

4. Upon information and belief,· Defendant ZACHARY PIERCE is

resident of Montmorency County, Michigan.

5. Defendant TUMBLEWEED SALOON, INC is a domestic profi

corporation licensed to sell alcohol and conducting business in Montmorency County

State of Michigan.

6. Defendant PAINTER INVESTMENTS, INC d/b/a Chauncey's Pu

is a domestic profit corporation licensed to sell alcohol and conducting business i

Montmorency County, State of Michigan.

7. Defendants TUMBLEWEED SALoon INC and P AINTE

INVESTMENTS, INC were at all times liable for the damages caused by thei

employees, agents and/ or ostensible agents under the doctrine of respondeat superior.

8. The Court has jurisdiction over this matter pursuant to MC

2


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' '

600,601 and 600.605.

9, The amount in controversy in this matter exceeds $25,000.00

exclusive of interest and costs,

10, Venue is properly laid in this Court pursuant to MCL 600.1629(1).

GENERAL ALLEGATIONS

11. Plaintiffs hereby incorporate by reference the preceding paragraph

as if fully set forth herein.

12. On or about December 2, 2014, DAVID AND HEATHER SANDER

were having dinner at Chauncey's Pub in Hillman, Michigan at approximately 6:30 p.m.

13. Defendants SHAWN SPOHN and ZACHARY PIERCE were in th

back of Chauncey's Pub celebrating PIERCE'S twenty-first birthday.

14. SPOHN and PIERCE were ordering and drinking several shots and

pitchers of alcoholic beverages at Chauncey's Pub.

15. HEATHER SANDERS observed both SPOHN and PIERCE a

Chauncey's Pub looking visibly intoxicated due to including but not limited to thei

slurred, boisterous speech, obnoxious and aggressive behavior and difficulty

maintaining balance.

16. That evening SPOHN asked an employee of Chauncey's Pub t

turn up the music and was refused.

17. SPOHN became angry and began to threaten and berate th

employee.

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18. At this time, an employee 0£ Chauncey's Pub asked SPOHN an

PIERCE to leave and offered to walk them down the block to Defendan

TUMBLEWEED SALOON, INC'S establishment.

19. On the walk to the TUMBLEWEED SALOON, PIERCE becam

very aggressive and hyperactive and repeatedly asked to kiss the employee, which sh

refused.

20. Inside the TUMBLEWEED SALOON, SPOHN, PIERCE and th

Chauncey's Pub employee proceeded to order and be served shots of alcohol at the bar.

21. After ingesting the shot of alcohol, PIERCE proceeded to vomit an

walk away from the TUMBLEWEED SALOON.

22. Thereafter, the Chauncey's Pub employee left the TUMBLEWEE

SALOON and texted the bartender at Chauncey's Pub to inform her that SPOHN an

PIERCE were acting erratic and should not be served any alcohol if they returned t

Chauncey's Pub.

23. As the Chauncey's Pub employee began walking ba~k to her

employer's pub, Pierce followed her and blocked the Chauncey's Pub door, preventin

her from entering, and repeatedly asked to kiss her.

24. Eventually, the employee went into Chauncey's Pub where PIERC

and SPOHN followed her and tried ordering more alcohol, which was denied.

25. SPOHN and PIERCE became very angry and began yelling and

tlu·eatening injury to the bartender and owner of Chauncey's Pub.

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26. Eventually, SPOHN and PIERCE went outside.

27. DAVID SANDERS went outside from Chauncey's

observed SPOHN and PIERCE damaging a motor-vehicle with a metal pole.

28. SPOHN and PIERCE asked DAVID R. SANDERS if he was th

owner of Chauncey's Pub1 which he denied.

29. SPOHN and PIERCE began to assault DAVID R. SANDERS an

tackled him to the ground.

30. SPOHN and PIERCE began kicking David Sanders on the ground

including in his head and neck.

31. The Montmorency Sheriff's Office was called at approximately 8:1

p·.m. and SPOHN and PIERCE ran away prior to their arrival.

32. HEATHER H. SANDERS then drove DAVID R. SANDERS t

Alpena Regional Medical Center for treatment.

33. DAVID R. SANDERS sustained injuries including but not limited

to:

a. Traumatic Brain Injury and white matter damagei

b. Amnesia;

c. Migraine Headaches;

d. Visual distortion;

e. Agoraphobiai

f. Anxiety;

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g. Memory lossi

h. Sleep disturbance;

i. Loss of sense of smell;

j. Loss of sense of taste;

k. Extensive paranasal sinusitis;

1. Wheezing;

m. Blood clot;

n. Radiating thoracic spine pain;

o. C6-C7 vertebrae degeneration;

p. L3-L4 disc desiccation;

q. L4-L5 disc desiccation;

r. 13-14 disc bulge causing stenosis;

s. L4-L5 disc bulge causing stenosis;

t. Schmorl nodes;

u. Partial-thickness tear of distal supraspinatus tendon;

v. Tendinopathy of the subscapulads tendon;

w. Possible non.displaced posterior Iabra1 tear;

x. Radiculopathy in arms;

y. Radiculopathy of lumbosacral joints;

z. Foot numbness and tingling;

aa. Immobility;

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bb. Facial contusionsi

cc. Scarring;

dd.Physical Therapyi

ee. Severe past, present and future pain and suffering as a direc

and proximate result of the injuries sustainedi

ff. Denial of social pleasures and enjoymentsi

gg. Mental pain and anxiety;

hh. Past1 present, and future economic damage;

ii. Past1 present1 and fulure medical treatment;

jj. Psychological harm and injury; and

kk. Other damages1 injuries and consequences that are found to b

related to the accident, to the extent that such damages ar

recoverable under Michigan Law.

COUNT I - ASSAULT

(against Defendants Spohn and Pierce)



35. Defendants SPOHN and PIERCE intended to offer corporal injur

to DAVID R. SANDERS by force that under the circumstances created a weil~founde

apprehension of imminent contact1 coupled with the apparent present ability t

accomplish the contact.

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36. Defendants SPOHN and PIERCE did in fact cause harmful contac

with David Sanders.

37. As a direct and proximate result of Defendant's conduct Plaintif

DAVID R. SANDERS suffered the injuries described within the Complaint.

COUNT II- BATTERY

(against Defendants Spohn and Pierce)



39. Defendants SPOHN and PIERCE engaged in the willful an

harmful or offensive touching of DAVID R. SANDERS which resulted from act

intended to cause such contact.

40. Defendants SPOHN and PIERCE did in fact cause such contact.

41. As a direct and proximate result of Defendant's conduct, Plaintif

DAVID R. SANDERS suffered the injuries described within the Complaint.

COUNT III - DRAM SHOP ACT VIOLATION

(against Defendant Tumbleweed Saloon, Inc)



43. On the date of the assault and battery, Defendants SPOHN an

PIERCE were sold, £urnished1 or given alcohol by employees of Defendan

TUMBLEWEED SALOON1 INC when Defendants SPOHN and PIERCE were visibl

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intoxicated in violation of MCL 436.1801.

44. The selling, furnishing, or giving of alcohol by Defendan

TUMBLEWEED SALOON, INC to Defendants SPOHN and PIERCE was a direct an

proximate cause of DAVID and HEATHER SANDERS' injuries described in th

Complaint.

Complaint.

45, Plaintiffs in fact suffered the injuries described within th -

COUNT IV - DRAM SHOP ACT VIOLATION

(against Defendant Painter Investments, Inc)



47. On the date of the assault and battery, Defendants SPOHN an

PIERCE were sold, furnished, or given alcohol by employees of Defendant P AINTE

INVESTMENTS, INC D/B/ A CHAUNCEY'S PUB when Defendants SPOHN an

PIERCE were visibly intoxicated in violation of MCL 436.1801.

48. The selling, furnishing, or giving of alcohol by Defendan

PAINTER INVESTMENTS, INC or its agents to Defendant SPOHN and PIERCE was a

direct and proximate cause of DAVID and HEATHER SANDERS' injuries described i

the Complaint.

49. Plaintiffs in fact suffered the injuries described within th

Complaint.

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COUNT V - NEGLIGENT SUPERVISION AND TRAINING OF

EMPLOYEES

(against Def end ant Painter Investments, Inc)



51. Defendant PAINTER INVESTMENTS, INC and its agents had

duty to exercise ordinary care in the training and supervision of the employmen

relationship, so as to prevent the foreseeable misconduct of an employee from causin

harm to other employees or third persons including Plaintiffs.

52. Defendant PAINTER INVESTMENTS, INC breached this dut

when its employees failed to train and supervise employees who brought Defendant

SPOHN and PIERCE to· another drinking establishment, failed warn Defendan

TUMBLEWEED SALOON, INC that Defendants SPOHN and PIERCE should not b

served alcohol, procured additional alcohol for Defendants SPOHN and PIERCE, and

failed to seek emergency assistance when Defendants SPOHN and PIERCE were actin

in a dangerous manner.

53. As a direct and proximate result of Defendant PAINTE

INVESTMENTS, INC'S negligence and breach of its duties of care, Plaintiffs DAVID

and HEATHER SANDERS were injured as described in the Complaint.


Complaint.

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COUNT VI - WILFUL AND WANTON MISCONDUCT

(against Defendant Painter Investments/ Inc)



56. Defendant PAINTER INVESTMENTS, INC and its employees an

agents had knowledge of a situation requiring the exercise of ordinary care and

diligence to avert injury to another including Plaintiffs and the ability to avoid th

resulting harm by ordinary care and diligence in the use of the means at hand.

57. Defendant PAINTER INVESTMENTS, INC breached this dut

when its employees assisted the intoxicated and violent Defendants in procurin

additional alcohol when Defendants SPOHN and PIERCE were acting in a dangerou

manner, which was an act that to the ordinary mind was apparent that the result wa

likely to prove disastrous to another.

58. As a direct and proximate result of Defendant PAINTE

INVESTMENTS, INC'S willful and wanton misconduct, Plaintiffs DAVID an

HEATHER SANDERS were injured as described in the Complaint.

Complaint.


COUNT VII - PREMISES LIABILTY

(against Defendant Painter Investments, Inc)

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61. Plaintiffs were at all times invitees on Defendant PAINTE

INVESTMENTS, INC'S property.

62. Defendant PAINTER INVESTMENTS, INC owed Plaintiff DAVID

R. SANDERS a duty to exercise reasonable care for the protection of business invitees,

including making reasonable efforts to contact the police .

. 63. Defendant PAINTER INVESTMENTS, INC breached its duties o

care and was negligent in committing the following negligent acts and omissions,

among other things:

a. Failing to contact the police when Defendants SPOHN an

· PIERCE threatened persons within the establishment,

b. Failing to contact the police when Defendant PIERCE becam

aggressive on the way to the TUMBLEWEED SALOON, INC,

c. Failing to contact the police when Defendant PIERCE becam

aggressive on the return to Chauncey's Pub,

d. Failing to contact the police when Defendant PIERCE prevente

a Chauncey's Pub employee from safely re-entering her place o

employment,

e. Failing to contact police when Defendants SPOHN and PIERC

re-entered Chauncey's Pub and became aggressive towar

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\

Chauncey's Pub employees,

f. Failing to contact police when Defendants SPOHN and PIERC ..

were ejected from Chauncey's Pub,

g. Failing to contact police when Defendants SPOHN and PIERC

were damaging property immediately outside Chauncey's Pub,

and

h. Failing to contact police immediately after Plaintiff DAVID R

SANDERS was assaulted and battered by Defendants SPOHN

and PIERCE.

64. As a direct and proximate result of Defendant's negligent conduc

as described above, Plaintiff DAVID AND HEATHER SANDERS were injured a

described in the Complaint.

65. Plaintiffs suffered the injuries described within the Complaint.

COUNT VIII - LOSS OF CONSORTIUM

(against all Defendants)

66. Plaintiffs hereby incorporate by reference the preceding paragrapl


67. At all relevant times Plaintiff HEATHER H. SANDERS was th

lawfully wedded spouse of Plaintiff DAVID R. SANDERS.

68. As a proximate result of the negligence, breach of implie

warranty, and breach of express warranty by Defendants, Plaintiff HEATHER H.

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SANDERS suffered loss of consortium, loss of society and companionship, and other

damages.

69. Plaintiff HEATHER H. SANDERS' damages were proximate!

caused by the inactions or actions of Defendants as previously described.

RELIEF REQUESTED

WHEREFORE, Plaintiffs DAVID R. SANDERS and HEATHER H.

SANDERS ask this Court to award damages against Defendants in whatever amoun

Plaintiff's decedent is found to be entitled in excess of $25,000.00, plus interest, costs

attorney fees, and any other amount that is equitable including exemplary damages.

Dated: June { 0 2016 By:

14

RANIERI HANLEY & HODEK, PLC

~.~ Heidi M. Hodek (P73966) Matthew T. Hanley (P76164) Attorneys for Plaintiff 4020 Copper View, Ste 225 Traverse City, MI 49684

(231) 486-6556


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I

J.URYDEMAND

Plaintiffs DAVID SANDERS AND HEATHER SANDERS, by and through

their attorneys, Ranieri Hanley & Hodek, PLC, and hereby request a jury in the above

entitled matter.

Dated: June~ 2016 By:

15

RANIERI HANLEY & HODEK, PLC

~{/~ Heidi M. Hodek (P73966) Matthew T. Hartley (P76164) Attorneys for Plaintiff

4020 Copper View, Ste 225

Traverse City, MI 49684 (231) 486-6556

APPENDIX G

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SANDERS v. SPOHN, ET AL

HEATHER H. SANDERS

October 10, 2016

Prepared by

r Reporting - STATEWIDE COURT REPORTERS_...,.

[email protected] Phone: 800.632.2720

Fax: 800.968.8653 www.networkreporting.com

Let us assist you GLOBALLY for all of your deposition needs.

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SANDERS v. SPOHN, ET AL DEPOSITION OF HEATHER H. SANDERS

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MONTMORENCY

DAVID R. SANDERS, an individual, and HEATHER H. SANDERS, an individual,

Plaintiffs,

V

SHAWN SPOHN, an individual, ZACHARY PIERCE, an individual, TUMBLEWEED SALOON, INC., a domestic profit corporation, and PAINTER INVESTMENTS, INC., d/b/a Chauncey's Pub, a domestic profit corporation,

Defendants,

and

TUMBLEWEED SALOON, INC.,

Cross-Plaintiff,

V


Cross-Defendants.

I

File No. 16-003949-NO

HON. MICHAEL G. MACK

DEPOSITION OF HEATHER H. SANDERS

~ Taken by the Defendant Tumbleweed Saloon on the 10th day of~

n October, 2016, at 308 West Main Street, Gaylord, Michigan, C)

> at 12:30 p.m.

Page 1

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1 APPEARANCES: 2 For the Plaintiffs: MS. HEIDI M. HODEK (P73966)

Ranieri Hanley & Hodek, PLC 3 4020 Copper View, Suite 225

Traverse City, Michigan 49684 4 (231) 486-6556 5 For the Defendant/ MR. MICHAEL C. EWING (P49797)

Cross-Plaintiff Ewing Carron & Fiato 6 Tumbleweed Saloon: 550 West Merrill Street, Suite 110

Birmingham, Michigan 48009 7 (248-262-5403 B For the Defendant/ MR. BRADLEY S. BENSINGER (P60592)

Cross-Defendant Bensinger, Cotant & Menkes, PC 9 Pierce: 308 West Main Street

PO Box 1000 10 Gaylord, Michigan 49734

(989) 732-7536 11

For the Defendant MR. DANIEL P. KING (P31170) 12 Painter Investments: Pedersen Keenan King

Wachsberg & Andrzejak, PC 13 4057 Pioneer Drive, Suite 300

Commerce Township, Michigan 48390 14 (248) 363-6400 15 16 RECORDED BY: Suzan M. Stiles, CER 7137

Certified Electronic Recorder 17 Network Reporting Corporation

Firm Registration Number 8151 18 1-800-632-2720 19 20 21 22 23 24 25

Page 2

1 TABLE OF CONTENTS 2 3

PAGE

Examination by Mr. Ewing ..............• 4, 68 4 Examination by Mr. King .............. 57, 69

Examination by Mr. Bensinger . . . . . . . . . . . . 60, 70 5 Examination by Ms. Hodek . . . . . . . . . . . . . . . . 65 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 3


1 Gaylord, Michigan

2 Monday, October 10, 2016 - 2:57 p.m.

3 REPORTER: Do you solemnly swear or affirm that

4 the testimony you're about to give will be the whole truth?

5 MS. SANDERS: Yes.

6 HEATHER H. SANDERS

7 having been called by the Defendant/Cross-Plaintiff

8 Tumbleweed Saloon and sworn:

9 EXAMINATION

10 BY MR. EWING:

11 Q Would you state your full name for the record, please?

12 A Heather Ann Sanders.

13 Q Okay. My name is Mike Ewing. I am an attorney, and I

14 represent Tumbleweed; or Highway; Bar. I have some

15 questions today regarding the facts and circumstances of the

16 incident involving David, and what his activities were prior

1 7 to, and even after. Okay?

18 A Uh-huh (affirmative).

19 Q Any question that's asked of you today you have to answer

20 out loud. Okay? Say "yes", "no'\ answer out loud in words

21 we can understand. If you say "uh-huh", or "unh-unh", that

22 can't be taken down, so please do your best to answer out

23 loud. Okay?

24 A Okay.

25 Q If you don't know an answer, tell me that. If you don't

1

2

3

4

5 A 6 Q

7

8

9 A 10 Q

11 A 12 Q

13 A 14 Q

15 A 16 Q

17 A 18

19 Q

20 A 21 Q

22 A 23 Q

24 A 25

Page 4

understand a question, tell me that, and I'll ask that it

be -- and I'll repeat it or rephrase it, whatever you need.

But if you answer a question, I'm going to assume you

understood it as asked. Okay?

Okay.

Ail right. And then, lastly, wait until the question is

completely asked before you begin answering, and that way wE!;:d

have a clear record. Okay? t.d

~l~;i:~t. What's your date of birth, ma'am? Q 4-11-78. <t:1-Do you currently reside with David Sanders? l..L.J

Yes.

When did you marry David? CT' October 24th. '< What year? ~ WK n

MR. BENSINGER: What was -- Q 2014? ~ Uh-huh (affirmative).

You have to answer out loud.

2014.

You're certain about that?

(Nodding head in affirmative)

MR. BENSINGER: Okay.

Page 5

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1 Q You have to answer out loud. 1 Q 2 A 11Yes." 2 A 3 Q Okay. The reason I'm skeptical is because Mr. Sanders told 3 Q 4 us that you married In October, 2015. 4 A 5 A This would be our second year. 5 Q 6 Q The date of your marriage, under oath, ma'am, is October of 6 A 7 2014; is that correct? 7 Q 8 A Yes. 8 A 9 Q Okay. What was the date of the incident involving your 9 Q

10 husband? 10 A 11 A I think it was January or February 4th -- or December -- 11 Q 12 December 4th. 12 A 13 Q Okay. Of what year? 13 Q 14 A I don't recall the date -- 14 A 15 Q Do you know the year? 15 Q 16 A -- exactly. 2014, 16 A

17 Q Okay. But at the time of the Incident that we're here 17 Q 18 about, ma'am, it's your testimony that you were married to 18 A

19 David, not just a fiancee? 19 Q 20 A No. We were married. 20 A

21 Q Okay. Have you Jived continuously with David since being 21 Q 22 married? 22 A 23 A Yes. 23 Q

24 Q Has there ever been a time where you left the marital home 24 A

25 for any period of time for any reason? 25 Q

Page 6

1 A No. 1 A 2 Q Have you ever called the police on Mr. Sanders; David? 2 Q

3 A No. 3 A 4 Q Has he ever called the police on you? 4 Q

5 A No. 5 A 6 Q Do you have any biological children with Mr. Sanders? 6 Q

7 A No. 7

8 Q Do you have any children of your own? 8 A 9 A Two daughters. 9 Q

10 Q Riley and Haley? 10

11 A Correct. 11 A 12 Q What's Riley's age? 12 Q

13 A 15. 13 A 14 Q How about Haley? 14 Q

15 A 13. 15

16 Q Who is their biological father? 16 A 17 A Timmy Joe Alexander. 17 Q 18 Q Say it again. 18 A 19 A Timmy Joe Alexander. 19 Q 20 Q Timmy Joe Alexander. Is he the father for both? 20 A 21 A Yes. 21 Q 22 Q Were you ever married to Mr. Alexander? 22

23 A Yes. 23 A 24 Q When? 24 Q 25 A 2005. 25

Page 7

~~~2!!"~~~!Y 8()().6325 2720


To when? Divorced February 18th, 2008; --

Where does Mr. Alexander --

-- 'OS, or '09.

Okay. Where does Mr. Alexander Jive? Alpena.

Do you know the address? 547 Plymouth Drive.

Is he employed? Ball Tire.

Bell Tire? Ball Tire.

Ball Tire. Is that in Alpena? Yes.

Okay. Are you employed? Yes.

What do you do? Family Enterprise.

What's that? Custom embroidery, silk screening, banners, trophies.

How Jong have you been employed there? Ten years.

Were you employed at the time of this incident? Yes.

Did you arrive here today with Mr. Sanders?

Page 8

Yes.

Who drove? He did.

Did you and he discuss your testimony at all? We didn't talk about that on the way here.

Did you talk about questions that you thought maybe one of us would ask, or areas that we would ask about? ~ No.

Have you talked to your husband about what he testified to (J today? ~ Did I-- < Yes. td -- talk to him? No. 0 Do you have any reason why -- would you be able to help u!Q""

with why he told us that you were married in 20157 "< Memory. ~ Any other reason? n Memory loss. 0 Okay. Any other reason? > (Shaking head negatively)

F--' You have to -- you're nodding -- you're shaking -- you've ----N

got to say "yes" or "no". \0 "No." N Okay. Do you know why he would tell us that you were notO

employed at the time of this incident, or not employed now? ~

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1 A I'm not employed right now. I am -- technically I still

2 work for them, but I'm off on medical right now until things

3 get better with me.

4 Q Are you employed?

5 A Yes.

6 Q Were you employed at the time of the incident?

7 A Yes.

8 Q What's the nature of your medical condition?

9 A I have bulging discs in my back and my neck.

10 Q From -- caused by what?

11 A Stress.

12 Q Anything else?

13 A Migraines.

14 Q No; no; no. The bulging discs in your back and neck are

15 caused by anything other than stress?

16 A {Shaking head negatively)

1 7 Q You're -- again, you've --

18 A "No." Sorry --

19 Q -- gotto answer out loud.

20 A Sorry.

21 Q That's it?

22 A Just I've had them since high school.

23 Q You've had what since high school?

24 A Migraines, and I've had the bulging discs in my low back.

25 , And then just recently I found out about the bulging discs

Page 10

1 in my neck from an MRI.

2 Q Were you injured in any way?

3 A No.

4 Q In the last, say, five years have you been injured in any

5 way whatsoever?

6 A Fallen on the ice and hurt my back. It just made it worse.

7 Q Okay. When --

8 A Other than that --9 Q -- did you do that?

10 A Maybe 2013.

11 Q Okay.

12 A 2012 maybe.

13 Q Have you been injured in any way since then?

14 A No.

15 Q Car accident?

16 A I hit a deer, and I had -- they said I had whiplash on my

17 neck.

18 Q When --

19 A I was sore for a few days, and then I was fine.

20 Q When was that?

21 A 2013.

22 Q Okay. So other than a slip and fall on the ice and the --

23 hitting the deer, have you been injured in any other way;

24 another --

25 A No.

Page 11


1 Q -- car accident, any -- any at the house, --

2 A No.

3 Q -- slipping and falling, stairs, sports injury, anything

4 like that?

5 A No.

6 Q But the disc injury -- or -- from the back and neck, you

7 don't relate that to anything that happened in this

8 incident, do you?

9 A No.

10 Q Okay. How long have you been out on medical leave?

11 A Since September 7th.

12 Q And the medical leave was solely the -- the reason for the

13 medical leave was solely the cause of your own issues,

14 totally unrelated to anything in this incident; is that

15 correct?

16 A Correct.

1 7 Q Okay. Do you have a form of income?

18 A I have AFLAC; I have accidental.

19 Q Okay. Were you injured at work at all?

20 A No.

21 Q Have you ever injured yourself at work?

22 A Lifting here and there. Otherwise, no.

23 Q Did you and David date before marriage?

24 A Yes.

25 Q Do you know when he divorced Michelle?

1

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Page 12

A Before we met.

Q Did you know Michelle before you and David met?

A No.

Q Did you graduate from high school?

A Yes.

Q Whatyear?

A '97. Q What school?

A Alpena High. Q How did you meet David?

A We met online.

Q Did you meet him -- did you know him before that?

A No.

Q Okay. What's your relationship like with Michelle?

A We get along.

Q Do you talk on a normal -- regular basis?

A Here and there.

Q Okay. How often?

A Maybe once a week, twice a week maybe.

Q And that's verbally on the phone? ......

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A Messaging -- N Q Messaging? \0 A -- back and forth. Yeah. N Q Okay. How long have you been -- you and she been doinP

that? Once or twice a week for how many weeks? :;;

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1 A Two or three years. Normally -- it normally has to do with

2 Caleb; picking him up or something.

3 Q Does David speak with Michelle?

4 A Yes.

5 Q How often does he speak with her?

6 A Sometimes daily about Caleb.

7 Q Okay. Prior to this incident, ma'am, can you give me a

8 sense of what David's medical condition was like?

9 A Before, or after --

10 Q Before; before this incident.

11 A Before he was able to go to work, complete his tasks of what

12 he would normally do. He didn't have to write anything down

13 to remember. He was capable of hanging onto things. Now

14 not so much. He can, but doesn't have a good grasp.

15 He did plumbing and all that prior to, your normal

16 house stuff where he wouldn't have to hire anybody, and now

17 he has -- there's times where he has to actually sit and

18 think of what he has to do. Sometimes he forgets.

19 Q Is he left at the house by himself?

20 A Sometimes, yes.

21 Q Are you aware of him complaining of migraine headaches from

22 the time he was a teenager?

23 A No.

24 Q Are you aware of him suffering from a neck injury -- a

25 neck -- complaints of neck pain prior to you meeting him?

Page 14

1 A No.

2 Q Are you aware that he applied for Social Security Disability

3 in 20137

4 A Yes.

5 Q Are you aware of him complaining of low back pain in the

6 several years before you met him?

7 A No.

8 Q Did he ever complain to you of knee pain prior to this

9 incident?

10 A No.

11 Q Okay. Are you aware that he suffered from anxiety and

12 depression prior to this incident, for which he was on

13 medication?

14 A I didn't know about it until later.

15 Q When did you learn of it?

16 A I would probably say after the incident when he went to the

1 7 doctor's when I went with him.

18 Q Well, were you aware that he's on Cymbalta?

19 A Yes.

2 o Q When did you become aware of that?

21 A He was on that -- I think Cody Lawnichak put him on it, or

22 it was the Spine & Pain clinic, after this incident.

23 Q Okay. Your understanding is that he got on the Cymbalta

2 4 after this incident?

25 A I believe so.

Page 15


1 Q Are you aware that he testified that he was on the Cymbalta

2 five years before the incident?

3 A He might have been. I don't know.

4 Q You're not aware of that?

5 A No.

6 Q Are you aware that he complained of anxiety and extreme

7 depression from the divorce from Michelle?

8 A He had -- we had talked about it, but didn't -- it wasn't

9 where, "I'm -- I'm just so depressed", or anything like

10 that, no.

11 Q Meaning he didn't -- you didn't get the sense that he was

12 very depressed about it at all?

13 A He didn't seem to be.

14 Q Okay. Is he on any kind of medication these days?

15 A Yes.

16 Q What's he on?

17 A Cymbalta, Topamax, Zantac for his stomach. It's not Latuda,

18 but it's another one that he's on. There's a bunch of them

19 that he's on.

2 o Q More than ten?

21 A I don't think there's more than ten.

22 Q Is there more than five?

23 A Yeah. He's on a blood pressure med, cholesterol. The names

24 of them offhand I don't know.

25 Q Okay. Was he on any of these -- aside from Cymbalta, was he

Page 16

1 on any of these medications before this incident?

2 A Abilify he's on. The meds that he's on now I don't believe

3 he was taking prior to all this.

4 Q All right. But he was on -- was he on Topamax before the

5 incident?

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A No.

Q What was he on before the Incident?

A I don't know.

Q You don't know?

A No.

Q Are you suggesting that he was on medications before the

incident other than Cymbalta, but you just don't know the

names of them?

A No; I don't know what he was on, -

If anything? Q

A -- if he was on anything.

Q Okay. How often does he ride his motorcycle?

A If he has to pick up his son. Not very -- not very often,

~ n trJ

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because I didn't have the money to insure it this past year.>

Q Does he drive around in an uninsured motorcycle? I-'

A No. N Q When is the last time he rode it? I..O A Two, three days ago maybe. N Q Is It insured now? 0

25 A Yeah, it's insured right now.

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1 Q 2

3 A 4 Q 5 A 6 Q 7 A 8 Q 9

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1 A 2 Q

3

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7 A 8 Q 9 A

10 Q 11 A 12 Q 13 A 14 Q 15

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20 A 21 Q 22 A 23 Q 24

25 A

Oh, okay. But there was a time where he wasn't riding it

because it was uninsured?

Uninsured, and it was wintertime.

Does he operate a motor vehicle; car?

He drives a truck.

How often does he drive the truck?

Maybe once or twice a week. I have it most of the time.

But you -- are you and he spending the days together at the

house now since you're on medical and he's not working? Yes,

What do you do during the day?

Work around in the yard.

Do what? Work around in the yard.

Like what?

Raking, cleaning up the yard.

Do you mow the lawn? I haven't,

He does? It hasn't been done yet.

He hasn't mowed it at all?

It was done probably a little over a month ago.

Who did it?

He did.

Does he help you with raking and cleaning?

Page 18

Sometimes.

Does he fix things around the house that need to be fixed,

repaired?

Small stuff, yeah.

Are you aware of him having any medical appointments in the

future that you know the date-certain about?

He has one November 8th with Cody Lawnichak.

That's the personal physician, or the family doctor? Yes.

To check on the blood pressure and stuff; right?

Uh-huh (affirmative). 11Yes11? Yes.

Are you aware of him having any appointments in the future

that have been set as a result of the incident that we're

here about? Nothing right now.

He told us that as a result of the incident he went to the

ER at Alpena Hospital.

Yes.

Is that true?

Yes.

He also told us that he saw his family physician, Cody -- I

know the first name. I don't know the last --

Lawnichak.

Page 19


1 Q -- Lawnichak, as well as Dr. HIiiman. 2 A Yes.

3 Q And that he went to a pain management clinic here in Gaylord

4 and had three injections In his neck.

5 A Yes.

6 Q And then he said he went through about four sessions of

7 physical therapy. 8 A Yes.

9 Q And then he saw a doctor and did a battery of tests. I

10 think a doctor named Pintar.

11 A Dr. Pintar.

12 Q Yes. Those are the people that he said that he saw as a

13 result of this Incident. 14 A Yes.

15 Q Did he miss somebody?

16 A I don't believe so. The Spine & Pain Clinic, I believe you

1 7 see a couple different people at first.

18 Q But the place -- he told us about the place, not so much

19 about the people he sees there. I just want to know if

2 o there's anyone we're missing. 21 A No.

2 2 Q Okay. When did he see the pain clinic? When's the last 23 time?

24 A July maybe.

25 Q Is that the only --

Page 20

1 A I'm not sure as to the last time he was there, because

2 between there and the last appointment that he had recently

3 had he had completely forgotten all about it. He didn't get

4 a phone call or anything, and they dropped him because he

5 forgot the appointment.

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Q Okay. Was he only at the pain clinic one time, to your

knowledge?

A No.

Q The last time --

A He was there to get shots previous, but the last session he

had he didn't make it because he forgot about it.

Q Okay. But I'm talking about -- he told us the shots came

in -- I thought he said July or August.

A It could have been.

Q All right. Was that the first time he had ever been there?

A No. He was there prior to that.

Q How many?

er '-< ~ 0

A I don't recall how many. Q Q Okay. Did he only get the shots the one time? >,,-A Each of them was one shot, and the next time they schedule\!..,.

an appointment for him to go back so many weeks later to N receive another shot. \0

Q Okay. All right. So the last shot he got was in July of N this year? 0

A Uh-huh (affirmative). ~

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SANDERS v. SPOHN, IT AL

1 Q "Yes"?

2 A Yes.

3 Q He was supposed to go again, missed the appointment, and

4 they said, "You're done"?

5 A They dropped him.

6 Q Did he go anywhere else after that for shots, or --

7 A No.

8 Q -- seek help any way --

9 A No.

1 o Q -- any other way?

11 A Other than seeing his family doctor.

12 Q Okay. How much do you earn in Disability pay? What do you

13 get every week?

14 A It's monthly.

15 Q Monthly? What's the amount?

16 A It's up to $900 a month.

1 7 Q What do you get?

18 A I was disbursed for t,hree months, so it was just one lump

19 sum, so I don't know what it is.

2 O Q Oh, you got one lump-sum payment?

21 A Yup.

22 Q How much?

23 A 2200.

24 Q Okay. When did that payment come in?

25 A A couple weeks ago.

Page 22

1 Q And, than, is the Disability over, than?

2 A No. It's up to the doctor at the pain -- at my pain -- at

3 the pain clinic that he was at. I go back in -- probably 4

5

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within two weeks. I have my MRI on the 12th, and then they

schedule me an appointment to go over it, and then she'll

decide if I can go back to work, or not.

Q Are you and David at the same pain clinic?

A Yes.

Q Were you going to the pain clinic before him, or was he

going before you?

A No; he went before me. I was referred there by my doctor.

Q Had he been to this pain clinic before this incident, to

your knowledge?

14 A No.

15 Q He had not?

16 A No.

17 Q Okay. So the pain clinic at one point was treating Heather

18 Sanders as well as David Sanders at the same time?

19 A Not at the same time.

2 o Q But you were both visiting the same clinic?

21 A Yes.

22 Q Okay. Who Is the doctor that's doing this?

23 A I see Dr. Mazzella.

24 Q Mazzella?

25 A Yes.

Page .23


1 Q Who did he see?

2 A It was a guy. I don't know his name.

3 Q Has any doctor put any driving restrictions on David?

4 A I don't think so.

5 Q Has any doctor put any work restrictions on David?

6 A I don't recall offhand.

7 Q Has David been employed in any form whatsoever where he

8 earned money for doing any sort of activity after this

9 incident?

10 A No.

11 Q Has he worked in any gainful employment, to your knowledge,

12 since this incident?

13 A He went to Colorado for less than 28 days to do harvest. He

14 normally does that once a year.

15 Q Did he --

16 A He wasn't going to go this year, but, because of the fact

17 that I ended up not working, he had no choice but to go.

18 Q And did he get it done?


20 Q You have to answer out loud.

21 A "Yes." Sorry.

22 Q He stayed -- was the harvest for 28 days? Is that what you

23 said?

2 4 A It was less than 28 -- he was gone less than 28 days.

25 Q But he completed the job?

Page 24

1 A Yes.

2 Q And the reason he did that was because you had not been

3 working and you needed the income? 4

5

6

7

8

9

A Yes.

Q How did he get out to Colorado?

A His boss flew him out there.

Q What did his job entail out there?

A Pushing corn in a tractor.

Q When had he last been employed before he went out to

Colorado?

A When he worked for Ivan Hanson. It was Milltown and

Elkhorn. They're two different buildings, but he was

employed at both for maintenance.

Q Okay. Were they, like, apartment buildings, or -- or

business buildings?

A Apartment buildings for people.

Q Okay. And he did the maintenance for both?

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A Yes. Q Q Do you know what years? > A 2015 was when he ended. I think he did it for, like, a yeai;_.

and a half. I think he was working on his second winter N there. \0

Q Why did he leave in 2015? N A With all the issues that he's been having; loss of memory,O

not being able to do stuff. F""' 00

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1 Q Loss of memory, and not being able to do, like, what -- what 2 stuff? 3 A Certain jobs he would go to normally do a job, and he would

4 know how to do it, but once he would get to the point of 5 actually doing it, he didn't -- he would actually stop, 6 because he couldn't remember it. 7 Q Did he leave on his own? 8 A Yes.

9 Q Ivan didn't fire him? 10 A No. 11 Q Did he ever ask -- to your knowledge, did he ever ask Ivan, 12 "Hey, Ivan, you know, I can do these things, and I can do 13 those things, but I can't do something over here, so maybe 14 can you get someone else to do that"? 15 Did he ever ask Ivan to kind of accommodate him in 16 any way, to your knowledge? 17 A Not to my knowledge, no. 18 Q What did he earn -- what did Ivan pay him? 19 A I believe it was 14 an hour. 20 Q When he was working for Ivan how many hours a week would he 21 work? 22 A He worked full -- when he first started it was part-time, 23 which he agreed, which was fine. It was something. 24 Q Yeah. 25 A But the part-time turned into full-time basically, and then

Page 26

1 he would try cutting his hours back. "Well, you don't need 2 to do this. I already took care of it." So it took away 3 from -- you know, from his job there. But when there was a 4 lot to do he would do it, but, then, you know, his boss 5 would complain about it, or "You didn't need to do that."

6 So his hours varied between both places, depending 7 on which place he was at. He was more in Atlanta than 8 Hillman. 9 Q Okay. Do you think he -- do you feel comfortable saying he

10 averaged 40 hours a week, or was that high? 11 A Close to 40, yeah. 12 Q Okay. Did he ever get injured at this kind of work; doing 13 maintenance work for Ivan? 14 A No. 15 Q Did he ever complain of soreness of any sort from the 16 maintenance work? 17 A No. 18 Q Has David hurt himself in any way since the incident? 19 A Working in the yard, or too much lifting, it would -- it 20 would set him back a day or two. 21 Q Okay. So if he was -- since the incident he's done some 22 work in the yard; correct? 23 A Uh-huh (affirmative). 24 Q 11Yes11? 25 A Yes.

Page 27

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Q And if he does too much lifting, than it -- he'll have to

take a couple of days off?

A Yes.

Q Okay. All right. Are you aware of David injuring himself

in any way before this incident?

A No.

Q In any fashion whatsoever before this incident?

A No.

Q Okay. Have you ever sued anyone before, ma'am?

A I had a lawsuit when I had my daughter.

Q Was that birth-related?

A Yes.

Q Okay. Did you and David retain another attorney in

Southfield to initially pursue this action?

A That was my original lawyer.

Q Yeah.

A Yes.

Q Who was that?

A Sam Meklir.

Q Okay. Is Mr. Meklir the one that interviewed -- or that

represented you and your -- through your daughter in the

birth case?

A Yes.

Q Okay. And did you and David retain him to help you out in

this case?

Page 28

A We basically worked our way up here. He showed us where to

go, who to see.

Q But you initially went to see him; right?

A Yes.

Q Did you retain him?

A No.

Q Okay. Do you know why Mr. Meklir would have written a

letter to the Tumbleweed saying that he was retained by -

by you and David?

A We went in to see him to get things going and all that, but

when he looked at the case it wasn't -- the travel time and

him taking the time up here wasn't worth --

Q Wasn't worth it for him?

A Yeah.

Q Well, do you know why he would say that -- why he would

write a letter Indicating that you had retained him?

A I probably --

Q Have you seen the letter?

A He probably did. I just don't recall at the time.

Q Okay. Well, look at this letter; February 3, 2015 -- it was

a letter that your husband saw -- and take a moment and read

it, ma'am, and then I'm going to ask you about it.

(Witness reviews document)

A Okay.

Q Have you read it?

Page 29

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2 Q "Yes"?

3 A Yes.

4 Q Okay. Do you see the first paragraph where it says he's

5 been retained?

6 A (No verbal response)

7 Q Do you see that paragraph, or no?

8 A "Please be advised that I represent David Sanders as a

9 result of injuries he sustained."

10 Q Well, let me see it. Yeah --

11 A This (indicating)?

12 Q Yeah, the, "Please be advised that I represent Mr. Sanders",

13 do you see that?

14 A Okay.

15 Q Yeah. Do you dispute that?

16 A No.

17 Q Okay. Do you see anything else in the letter that, to your

18 knowledge, is glaringly inaccurate?

19 (Witness reviews document)

20 A There is no video evidence that we have.

21 Q Rlght. And your husband wasn't hurt outside Tumbleweed, was

22 he?

23 A Outside Chauncey's.

2 4 Q Rlght. The letter says Tumbleweed, doesn't it?

25 A That's what it says.

Page 30

1 Q And that's not true?

2 A No.

3 Q Okay. Were you in Tumbleweed that evening?

4 A Not in Tumbleweed, no.

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Q Were you in Chauncey's?

A Yes.

Q Are you aware of anyone that was in Tumbleweed?

A No.

Q When did you arrive at Chauncey's?

A It was in the evening, after dark, after I had gotten out of

work.

Q You worked that day?

A Yes.

Q Did you arrive there with David?

A No. I met him.

Q You met him there. Okay. What did he drive to Chauncey's?

A He had the black Ford at the time.

Q Is that a pickup?

A Pickup truck.

Q What did you arrive in?

A I had myXLT,

Q Did you and he exchange a phone call or text messaging to

meet?

A Yeah; yes.

Q When did that happen?

Page 31


1 A On the way home.

2 Q What time did you get off work?

3 A I get out at 5:00, --

4 Q Okay. So did you go home?

5 A -- depending on if I had to work late that evening, or not.

6 Q All right.

7 A I don't know what time exactly it was, but by the time I got

8 to Hillman it was already dark,

9 Q Do you think you arrived at Chauncey's around 6:00, or --

10 A Probably between 6:00, 6:15, somewhere around there.

11 Q Okay. When you arrived was David already there?

12 A We metthere. He was waiting.

13 Q Okay. Was he waiting inside?

14 A Outside for me.

15 Q Okay. In the front, or the back, or side, or where?

16 A The back; in the back. We were originally going to go to

17 The Highway. I wanted to go there to eat. And he said that

18 they were packed, so I said, "Okay. Let's -- we can go to

19 Chauncey's, than." But then they were packed, and I didn't

20 feel like cooking. It was late.

21 Q That's fair. Was Chauncey's packed, in your --

22 A Yeah.

23 Q Okay. How did -- did you ask David how he knew Tumbleweed

2 4 was packed?

25 A He went by there.

Page 32

1 Q Oh, he drove by?

2 A He had driven by there and he saw that the parking lots were

3 full.

4 Q Okay; okay. Where did you and David sit? 5

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A At the window in front of -- at Chauncey's. As soon as you

walk into the door, turn to the left, and there's a big

long -- like, an island bar type with stools there. We were

sitting there with his boss, Ivan.

Q Okay. What --

A We had seen him there. We came in the back door, and he

waved us over, and we had our dinner.

Q Okay. You sat there?

A Yes.

Q All right. Were you seated with your back to the window?

A Yes.

Q If you turned around could you see out the window?

A Yes.

Q If you turned around and looked out the window how far down

could you see?

A You could see down to the Al.

Q How far is that? I don't know.

A Al is straight across from The Highway.

Q Okay. All right.

A The gas station.

Q All right. Do you know who Zach Pierce is?

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1 A No.

2 Q Do you know Shawn Spohn?

3 A No.

4 Q Have you -- how did you come to -- have you ever heard those

5 names?

6 A I've never heard those names.

7 Q You've never heard those names?

8 A No.

9 Q Is right now, ma'am, the first time you've ever heard those

10 names, when I just mentioned them?

11 A No.

12 Q Okay. All right. When did you first hear those names?

13 A After the incidences when talking to Zach Morris to find out

14 who they-- who they were.

15 Q Talking to who?

16 A Zach Morris.

17 Q Who is that?

18 A He's the sheriff.

19 Q Okay. All right. And when did Morris tell you their names;

2 o these names? Within a week?

21 A I believe it was -- it was within a week. We stopped by so

22 that he could take pictures of David's head, because it had

2 3 the perfect imprint of his boot --

24 Q Whose --

25 A -- on top of -- in the back of his head.

Page 34

1 Q Did you see David assaulted?

2 A Yes.

3 Q With your own eyes?

4 A Yes.

5 Q From what you saw; not what people told you, but you saw it

6 yourself; --

7 A Yes.

8 Q Were you inside, or outside?

9 A Standing outside.

10 Q You were outside?

11 A I went outside to follow him to find out what the ruckus

12 was. We heard a noise outside, and I followed him, because

13 something didn't seem right with the two that were already

14 in the bar, and they got barred; they got kicked out.

15 And --

16 Q Do you know who Mr. Spohn is, and Mr. Pierce, that -- can

17 you describe either of those people?

18 A One's really tall, skinny, I think he's got a beard, real

19 short-short hair. And I don't think he had any.

2 o Q All right. Did you see those people inside Chauncey's?

21 A Yes.

22 Q For how long?

23 A We were there probably a good hour, and they were there.

24 They were -- they had come in -- they were already there. 25 They went outside, and they came back in. And the one had a

Page 35


1 beer at the counter with his ex-wife, They were standing

2 there. Because he was trying to kiss her in between the

3 bar, and she was trying to push him away and all that.

4 And --

5 Q Is that the tall one?

6 A No. That's the shorter one.

7 Q The shorter one was trying to kiss whose ex-wife?

8 A David's; Michelle.

9 Q Was Michelle working?

10 A No.

11 Q What was she doing?

12 A She was on the other side of the bar. She wasn't working.

13 She was there.

14 Q Just a patron?

15 A Yeah.

16 Q Okay. So you come into the bar with David, you see Ivan,

17 you go to the table; correct?

18 A Correct.

19 Q When do you see Spohn and Pierce?

20 A Probably about half way through dinner.

21 Q And they're --

2 2 A They're in there --

23 Q Where are they when you see them?

2 4 A The younger kid, he was at the counter with Michelle. And

25 then --

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Q When you say "counter", you mean the bar?

A The bar counter.

Q Okay.

A And I was sitting in the middle between David and Ivan.

Those two were chit-chatting about business, and I was

eating my dinner and just kind of looking around. And I

just kind of noticed that he was trying to kiss on her. Ancpj

she was, like -- you know, tried to push him away and td everything. And they had bottles of beer in front of themD

Q At the bar counter? ~ A At the bar counter.

Q Where was the tall guy during this period of time?

A He wasn't inside. He was outside. The young kid --

Q He was outside?

A Correct.

Q He was what?

A I didn't -- I didn't see him inside.

Q You never saw the tall guy inside?

A Until a little while later.

Q Okay. So the first guy you see is the shorter guy?

A Correct.

Q And he's at the bar counter with Michelle?

A Uh-huh (affirmative).

Q "Yes"?

~

25 A Yes.

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1 Q Okay. And is Michelle drinking? 1

2 A I think she had a beer in front of her. I don't recall. I 2

3 know there were bottles of beer there. 3

4 Q But you don't know whose they were? 4

5 A They were sitting in front of them, so I assume they were 5

6 theirs. 6

7 Q All right. Did you see them drink anything; either Michelle 7

8 or the other -- the shorter guy? 8

9 A They had them in their hand, so if they drank them, I don't 9

10 recall seeing it. 10

11 Q So you didn't see them drink anything; correct? 11

12 A Correct. 12

13 Q Okay. All right. And than are you saying that the tall guy 13

14 then comes in and -- and -- 14

15 A He was-- 15

16 Q Let me finish my question. Does the tall guy then come in 16

17 and join Michelle and the shorter guy? 17

18 A No. He was in there -- he wanted to hear the jukebox music; 18

19 he wanted them to turn it up. And Deena; the bartender; had 19

20 told them, "You know, this is our dinner hour. People are 20

21 here to sit down and eat dinner. We can play it after 21

22 dinner is done, and then you can play all of the music and 22

23 turn it up as loud as you want, but right now" -- they 23

24 couldn't. 24

25 And I think that's kind of, like, where it kind of 25

Page 38

1 started to escalate, it seemed. 1

2 Q Did you hear the tall guy say this to Deena? 2

3 A Yeah. 3

4 Q So you're sitting -- okay. So you're sitting there having 4

5 ainner, and you're just kind of minding your own business, 5

6 but realizing what everyone else seems to be doing; is that 6

7 it? 7

8 A I was just sitting back watching. 8

9 Q Okay. Did you take any notes? 9

10 A (Shaking head negatively) 10

11 Q You have to answer out loud. 11

12 A 11No. 11 12

13 Q Did you take any pictures? 13

14 A No. 14

15 Q Did you have a cell phone? 15

16 A Yes. 16

17 Q Is the tall guy yelling at Deena, and is Deena yelling back, 17

18 or are they just having a conversation? 18

19 A They're, like -- he had a raised voice. He wasn't yelling, 19

20 he wasn't just talking normal like this. Kind of in 20

21 between. So you could hear it. 21

22 Q Okay. Were you concerned for your safety at that point? 22

23 A No. 23

24 Q Okay. Did you ever hear the shorter guy say anything? 24

25 A No. 25

Page 39

Q

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Okay. Is it your testimony, ma'am, that you're in

Chauncey's for about a half hour while the tall guy and the

shorter guy are in Chauncey's as well?

Uh-huh (affirmative).

"Yes"?

Yes.

Okay. Have you ever written -- given a statement to anyone

about this?

I believe I gave one to Matt; our lawyer.

Okay. Have you ever told David this information?

Told him what?

What you've told me about what you saw and what you know

with him and Michelle and --

He's asked what all I seen, and I explained to him what all

I saw, and what other people had seen that he's run into and

everything, but he doesn't remember.

Okay. But you've -- you've told him specifically what you

told me?

Yes.

How many times?

I don't recall.

Okay. Did you see the tall guy drink any alcohol?

Not to my knowledge.

When they left did you follow -- did you watch where they

went?

Page 40

They went down to The Highway. They were headed towards The

Highway. Michelle took them down there.

Did you see them go into The Highway?

No.

Did they leave with Michelle?

Yes.

Did Michelle seem to object to the guy trying to kiss on g; her; the smaller guy?

Yes. n She did object? trJ

r-i Yeah. < How? f§ She was just telling him "no", and kind of had her hand up,

like, you know -- er How often -- how long did he persist in trying to do it? '-< It was a couple times. ~ Over what period of time? n From the time I -- however long it took from the time it 0

started from them trying to get him out of the bar and go > down to the other place. r---'

Was that about a half hour? ------N

Probably. \0 Okay. Did Michelle ever get up and leave her seat and just i0

leave the shorter guy at the bar? 0 Not to my knowledge.

r---' 00

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1 Q Did you ever ask her why? 1 A

2 A No. 2 Q 3 Q Did Michelle ever tell you why she went down there with 3 A

4 them? 4 Q 5 A To take them -- they were told to leave. 5 A

6 Q All right. But did Michelle ever tell you why she went down 6 Q 7 there with them? Did she ever tell you why? 7 A

8 A No. 8 Q 9 Q Have you ever asked her? 9 A

10 A No. 10

11 Q Did she voluntarily leave with them? 11 Q 12 A Yes. 12

13 Q Who walked out first? 13 A

14 A That I don't know. 14 Q 15 Q Were you concerned for Michelle's safety at all when she 15 A

16 walked out with them? 16 Q 17 A No. 17 A

18 Q Were you concerned for your safety? 18 Q 19 A No. 19

20 Q How about David's? 20 A 21 A No. 21 Q 22 Q Did you ever see either of those two guys; the shorter guy 22

23 or the taller guy; back in Chauncey's that evening? 23 A 24 A They came back. 24

25 Q Did they both come in? 25

Page 42

1 A A short while later they -- both of them came in, and the 1

2 woman that the taller guy was with. 2

3 Q Did you ever see the woman in Chauncey's before they left to 3 Q

4 go down toward -- or at least leave and walk towards 4 A

5 Tumbleweed? 5 Q

6 A No. 6 A

7 Q Okay. 7 Q

8 A No. 8

9 Q So she -- 9

10 A This was after. 10 A 11 Q All right. How much time expires between them leaving 11

12 Chauncey's and them coming back into Tumbleweed (sic). 12

13 A I'd say less than a half hour. 13

14 Q Do you think it was less than 15 minutes? 14 Q

15 A Between 15 and a half hour, I would say. I'm not positive. 15 A 16 Q So when they come back this time do they -- the tall guy 16 Q

17 comes back, the shorter guy comes back, and the tall guy 17

18 comes back with a girl? 18 A 19 A Yeah; some woman. She -- 19 Q

20 Q Who was it? 20 A 21 A -- had long straight hair. I don't know who she was. 21 Q 22 Q Where was Michelle? 22

23 A She had already come back prior. She was trying to, like, 23

24 get away from them, I guess. So -- 24

25 Q Did she tell you that? 25 A

Page 43

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-- she hurried and came back in the bar. Yeah.

She did tell you that?

Afterwards, yeah.

Afterwards -- she told --

When she came --

-- you that after what?

When she came back to the bar.

Okay.

And then within seconds later they kind of followed -- they

followed her back.

Okay. So four people come back; Michelle, the two guys, and

another girl?

Yes.

Do they all come back inside?

They all came back inside.

Roughly--

And then they were -- they were told to leave.

Let me finish. They all come back inside at the same time

roughly?

Roughly about the same time.

Okay. And it's when Michelle comes back that she tells

you --what?

Well, she come back in and explained, you know, what he was

doing at the bar; trying to kind of get a kiss on her and

all that; so she took him out to take them down there;

Page 44

because they were asked to leave. And then they come back,

and then they were told they needed to leave.

Did she tell you about what they did at Tumbleweed, or --

No.

-- what they activities were?

No.

Okay. All right. Is the young guy wearing -- do you g; remember what either the young guy or the taller guy were

wearing? (') The taller guy had, like a -- they looked like they were tr!

1--, brand-new work boots; steel-toe work boots; like, a tan'ish < color; khaki, kind of. I think the younger one had, like, a tr! white shirt on. d Okay. r:::r What else, I don't know. '-< All right. Was he carrying anything else with him; the ~

younger guy? Did he have anything else? (') I didn't see anything on him when he was inside the bar. 0 Was he wearing a hat?

I don't know. I don't remember. > -During the 15 to 30 minutes that they're -- that they've -left Chauncey's do you kind of explain to David what you had N \,0

witnessed and what was going on? Like, "Hey, look at that. -N That's kind of strange"? 0 No. Because they were in the middle of a conversation, and~

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1 I just -- kind of was just sitting back observing.

2 Q Kept it to yourself?

3 A Yeah.

4 Q Didn't mention anything out loud, like, "Look at that,

5 David. Michelle is getting hit on", or "She's leaving with

6 these" -- nothing like -- you didn't mention any of that?

7 A No.

8 Q All right. Did you mention anything --

9 A If I did, I don't recall it.

10 Q Did you mention anything to David about the guys, what they

11

12

were doing while they were inside; the young guy and the

taller guy?

13 A After -- when they come back the second time?

14 Q Yes.

15 A When they came back in I think I kind of nudged him. It

16 was, like, you know, "Something's not right."

17 Q What did you --

1 a A You know, just by the way they're-· it seemed like by the

19 way they were acting when the bartender Deena was telling

20 them that they needed to leave.

21 Q All right. So you alerted David that something was wrong;

22 at least in your mind, something wasn't right with these two

23 guys?

24 A Yeah. Just·· I just basically gave him a nudge, and was,

25 like, "You know" ·-

Page 46

1 Q You've got to tell me what that was. I don't know what you

2 mean by that? What -- did David respond?

3 A Like, nudging him -- like, you see something ·- like, if you

4 see something out in public and, you know, you kind of nudge

5 someone. You don't want to say anything out loud to be rude

6 about it, but kind of, like, nudging your head, like, kind

7 of, "Look that way. Watch."

8 Q Did he do that?

9 A I have no idea. He was more busy talking to his boss.

1 o Q Okay. So you didn't -- okay. So you didn't say anything to

11 David, like, "Hey, look at that. That's kind of strange,"

12 or, "Look at those guys. They're kind of odd," and he took

13 note and said, "What are you talking about", and took a

14 look?

15 A No. It was pretty much, like, self-explanatory just by

16 watching them.

17 Q Did he watch them?

18 A I don't know if he did, or not. I don't know.

19 Q Why does he go outside; David?

20 A He went outside -- he heard a noise, didn't know exactly

21 what it was. Everybody was kind of, like, "You know, what's

22 that loud noise," and it sounded like somebody was hitting

23 something.

24 Q Did he go out the front?

25 A He went out the front door.

Page 47


1 Q Okay. Did Ivan go out with him?

2 A I think -- Ivan didn't go out, I think, until after.

3 Q How much time expired between David going out -- between the

guys coming back with the two girls; Michelle and the other

5 guy (sic); between that point in time and when David went

6 outside?

7 A I'd probably say all within maybe five minutes.

8 Q Okay. What noise; what was the noise?

9 A It just sounded like they were hitting something. What it 10 was, I don't know. But I guess it was the ·- the fence

11 that's connected to Chauncey's that was busted.

12 Q Did you see anybody hit the fence?

13 A I didn't see anything -- any of that.

14 Q You didn't?

15 A No. Other than when I walked out-· David walked outside,

16 and then one of the -- the guy that works there; he was

17 clearing tables; he went out behind him. And I walked out,

18 and I saw the younger kid. He was standing by the fence.

19 Butthat was it.

20 Q All right. Well, when you heard the noise did anything

21 prevent you from looking out the window to see what it was?

22 A No.

2 3 Q Did anything prevent David from looking out the window to

2 4 see what it was?

25 A No.

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Page 48

Q Okay. By the way you described the window, you and he

certainly could have done that -- right? -- just looked out

the window to see what --

A He wasn't sitting down. He ··

Q Who wasn't?

A •• was standing ·· David wasn't sitting down. He was

standing off to the corner, because he was talking to one of

his friends.

Q Right. But he could have come up to the window to look

outside?

A Probably.

Q And you could have; right?

A Probably.

Q But neither one of you did?

A No.

Q All right. He just goes outside; David?

A After he heard the noise.

Q Yeah. Does he go out with anyone?

A His friend was standing behind him, and he followed him

cr' '-<:

~ n 0 > outside; the gentleman that was working there. First name, ,.._,

offhand, I don't know. N Q Okay. \0 A They call him Frog. N Q Okay. 0 A He went outside behind him, wondered what the ruckus wa~

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1 The taller guy was across the road, and the younger kid was

2 somewhere off to the side in the road somewhere. After we

3 walked out he -- when I saw him standing at the fence he

4 kind of went that way (indicating) a little bit, and then we

5 didn't see him.

6 Q Okay. But did you --

7 A So the taller --

8 Q Did you walk out with David?

9 A Behind him; feet-feet behind him. I wasn't, like --

10 Q Okay. But at the same time?

11 A Within seconds.

12 Q How far was the tall guy -- he was across the street --

13 correct? -- when you went out?

14 A He was across the street standing at the drive -- in the

15 driveway at the bank right there.

16 Q Okay. And how -- okay. Across Main Street?

1 7 A Correct.

18 Q Okay. And where was he -- as you walk out where was the

19 younger guy; the shorter guy?

2 o A When I walked out David was already standing -- you know,

21 the curb, there's a vehicle here (indicating). He was half

22 way in the middle. And then I stepped out and was -- I saw

23 the younger kid standing by the fence.

2 4 Q What was he doing?

25 A I don't even know. He was just standing there.

Page 50

1 Q Okay. What happened next?

2 A Because we didn't hear anything at that time when I stood

3 outside. He had went back towards the vehicle behind.

4 Where he went -- what way, I don't know. 5 Q The younger -- the shorter guy?

6 A The shorter person, yes.

7 Q Okay.

8 A The husband stepped out, and he raised his arms up, was,

9 like -- you know, kind of, like, "What's going on? I'm 10 not11

--

11 Q Who stepped out?

12 A David. 13 Q Okay.

14 A He had his hands up, he's, like, "I am not the bar owner."

15 Because he told him he was·· this taller guy was going to

16 kick his ass. 17 Q Was the taller guy coming towards him, or was he --

18 A He was coming --19 Q -- still on the other side of the street?

20 A -- towards -- the taller guy was coming -· slowly coming

21 towards him and talking to him. And David had his hands up, 22 saying, you know, "I am not the bar owner."

23 And then that was when ·· as soon as he stepped

24 openly where that vehicle •· the corner of that vehicle was 25 that younger kid -- I mean, it was, like, the blink of an

Page 51


1 eye, and he took him out, --

2 Q The younger --

3 A -· right out of his blind spot.

4 Q The shorter guy did?

5 A Yes.

6 Q How?

7 A Like, he kicked -- like, he kicked him down.

8 Q The shorter guy?

9 A Yeah.

10 Q You're certain about that?

11 A Like, it was -- it was, like, so fast it was -- he took him

12 out.

13 Q Are you certain it was the shorter guy?

14 A The shorter one. The taller guy was across the street.

15 David was more focused on the taller guy because he was

16 bigger.

17 Q How did the guy -- the shorter guy, where did he kick him?

18 A In the side part, like, his chest area.

19 Q The left side?

20 A Yes.

21 Q So the left side of your body, not the left side of your

22 chest?

23 A This side of the body (indicating). Where exactly at that

24 they hit him, I don't know.

25 Q Okay. All right. Did David go down?

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A Yes.

Q What happened then?

A He grabbed him. The younger kid was -

Q Who grabbed him?

A David did. He grabbed the younger kid, because he didn't -

he didn't want to hurt him, so all he did was hang onto him.

And the younger kid was swinging at him, and all this other

stuff. And -·

Q How did -- so the kick comes. Does David fail to the

ground?

A David fell right to the ground.

Q How did he grab him, than?

A The kid went right on top of him.

Q Okay.

A So when he hit him, kicked him ·· however -- and went to

take him down, he went with him at the same time. So they

were both on the ground, David grabbed him, he was rolling

around with him. Because he didn't want to hit him, he

didn't want to hurt him.

Q Okay.

A Because he's only 21. He was just a kid.

The guy that was standing across the street was

I-'

N '-0

coming up, and came around him while they were hanging on -i::} he was hanging onto the younger kid and the kid was 0 swinging, or however·· whatever else he was doing, and he

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1 proceeded to stomp him in the back of the neck and the head.

2 Q While David is on the ground? 3 A While David is on the ground.

4 Q He stomps him? 5 A Yes.

6 Q How many times?

7 A More than five or six. I mean, it was just a constant over

8 and over again.

9 Q Who is outside besides you and David?

10 A David was on the ground, and it was me, Michelle, Frog.

11 Q Was Ivan? 12 A Ivan came outside, Doug Morrison. There was an EMT there,

13 but she was inside. I don't recall her being outside. And

14 there was a bunch of other people.

15 Q So you were outside for this?

16 A Yeah.

17 Q You saw everything?

18 A Everything.

19 Q Did you ever see the tall guy come running at David and

20 never break stride and plant a kick on his chest while David 21 is standing up?

22 A No.

23 Q You --you --

24 A He came from across the street --

25 Q But wait a minute. You would have -- if you saw that,

Page 54

1 that's something you would remember?

2 A Yeah.

3 Q Are you aware David told us that? 4 A No.

5 Q Are you aware David's testimony, ma'am, is that he was 6 standing there and the guy came across the street yelling at 7 him and -- the tall guy -- and never broke stride, and

8 planted -- and with one foot kicked him in the middle of the

9 chest and knocked him down? 10 A No.

11 Q You have a different version? 12 A Yes.

13 Q Which one is true? 14 A The younger kid came up and knocked him down while the

15 taller guy -- he was across the road, and he walked straight

16 across --17 Q So your version --

18 A -- into the road.

19 Q -- is true? 20 A Yes.

21 Q Have you ever discussed your version with David about his

22 version? 23 A I've talked to him as to what happened, because he asked

24 what happened. Other people that have been around that

25 seen -- like, Michelle and -- he didn't talk to his boss,

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because he had -- he had left there.

Q Okay. Did anyone ever go in and ask for 9-1-1 to be called?

A I believe everybody had said to call 9-1-1. It took -

Q Did David?

A -- took her time -

Q Did David?

A -- to get to the phone. No, he did not call.

Q Did David ever ask for 9-1-1 to be called?

A They were already called prior to him -- after this was

done.

Q Did David ever go back into Chauncey's and ask for 9-1-1 to

be called?

A No.

Q Okay. Who assisted David in -- did anybody assist David in

getting these guys off him?

A There was one gentleman, and I can't -- I can't remember his

name.

Q It was the owner of the bar, wasn't it?

A BobShook.

Q Bob Shook?

A Bob Shook.

Q Did Mr. -- do you know Dan Painter?

A Dan Painter.

Q Did he come out and help?

A After -- like -- like, after initially seeing as to what was

Page 56

going on and everything he had come outside. He was kind

of, like, one of the last to be out, because he was cooking

behind the bar.

Q Did either one of these gentlemen give any explanation to -

to you, or did you hear them give an explanation to anyone,

why they did this?

A No.

Q And you have no reason why this happened?

A No.

Q Okay.

MR. EWING: I don't have any more questions.

MR. KING: I am Dan King. I represent Painter and

Chauncey's.

EXAMINATION

BYMR. KING:

Q I'm just trying to clarify: Somebody did call 9-1-1;

correct?

A Deena.

Q She's the waitress that was -- or bartender in Chauncey's?

A Yes. ..... Q When did she call 9-1-1? N A I would say once the fight was going on I had seen her on \0

the phone. It got to the point -- where at in the N conversation or when she called I don't know exactly what 0 time. It got to the point where she was almost down by ThE;;

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1 Highway, and she was on the phone, and she was telling them

2 what was going on.

3 And the younger kid, he had kind of come up from

4 the side and was, like -- like he was going to hit her, or

5 try something, and it scared her. And we all seen her back

6 away from it, and she was on the phone. But other than

7 that --8 Q Okay. So Deena went to call as soon as she saw something

9 was happening there?

10 A As far as I know. 11 Q Okay.

12 A I'm not sure -- I'm not positive as to when.

13 Q And she was still trying to get -- talk to the police when

14 the fight was going on; correct?

15 A Yes. 16 Q Okay. And do you recall that Dan Painter came out too?

17 A Dan Painter was outside. 18 Q And did he take on the big guy and pull him off your

19 husband?

20 A I don't recall it. 21 Q- Okay. Do you recall him getting in any type of

22 confrontation with either of those two?

23 A No. 24 Q Okay. Now, I'm trying to understand, because we've got

25 different stories in terms of when you got there and what

Page 58

1 was happening. But, basically, as I understand it, you 2 first noticed these guys when the shorter one was trying to 3 kiss Michelle?

4 A Yes. 5 Q And they left shortly thereafter; right?

6 A Yes. 7 Q You never saw them served with any alcohol; correct?

8 A No. 9 Q That's a correct statement; you had never saw them served

10 with any alcohol?

11 A No. 12 Q (indicating)

13 A No, I did not see them. 14 Q Okay. 15 A Sorry. 16 Q Yeah. It was an inartfully worded question. Now, were you

17 going with David when he filed the claim for Disability back

18 in 2012 or 20137

19 A Yes. We were living together. 20 Q What was the disability that he had then? What problems

21 were the problems he was having that caused him to file

22 that?

23 A I don't recall offhand. 24 Q Okay. Do you recall that he wasn't able to do work because

25 of that disability?

Page 59

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A I don't recall.

Q Okay. Did he ever go back to work at any time for the power

company?

A No. MR. KING: I think that's all of the questions I

have.

MR. BENSINGER: Hello.

THE WITNESS: Hello.

MR. BENSINGER: My name is Brad Bensinger, and I

represent Zach Pierce. I have a few follow-up questions for

you.

EXAMINATION

BY MR. BENSINGER:

Q

A Q

A Q

A Q

A Q

A Q

A

Q

A Q

A

Q

A

Q

A Q

A

Do you recall giving a statement to the police?

To Zach Morris?

It appears like -- yeah, to Zach Morris.

Correct.

Okay. And that would have been, obviously, closer to the

date of this incident than today?

Yes. And do you believe that when you gave that statement you

gave an accurate statement of what you saw?

Yes.

Is it fair to say your recollection obviously was better

then, being two or three days, I'm assuming, after the

Page 60

accident?

Possibly, yes.

Okay. Tell me if this is incorrect. In your statement

given to Deputy Zach Morris it says, "Heather stated that is

when Shawn kicked David in the chest."

Side -- chest -- how -- it happened so fastthat -- it's that area. gg

Correct. And I'm going to draw your attention to "Shawn",

as opposed to you just testifying that you believed it was n the little guy Zach. tr:J Okay.

~ Do you believe your statement to the police at the time was

accurate, or is your now recollection accurate as to who

actually kicked -- er To get his -- to find out what his name was? Yes. But tb<

sit here and talk about it, it's the shorter one, if that's ~ his name. n Okay. 0 I got a name at one time, and then I just -- > So when you gave --

l--' -- I wrote down my statement.

------So when you gave the statement to the police and indicated l'0 \0

that it was Shawn that kicked David in the chest, you now ------N

believe it was Zach? 0 The shorter kid. l--'

00

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1 Q Okay. Have you ever had a chance to review the police

2 report?

3 A No.

4 Q Do you have any reason to dispute that Mr. Painter was --

5 states that he was outside and able to watch this incident

6 as well?

7 A Yes, he was outside.

8 Q And do you disagree with the fact that he was outside and

9 able to see what was going on?

10 A Why would I disagree?

11 Q Well, I guess my question is -- you testified a little

12 earlier say that Mr. Painter didn't get out until it was all

13 over, and now I'm reading his statement, and it appears as

14 though he was out in time to see the fight.

15 A He wasn't outside when it was all over. I didn't state

16 that.

17 Q Okay. So you believe he could have been out there when the

18 fight was taking place?

19 A He was outside when it was taking place, because when I

20 turned around and had stated to Frog, "Somebody needs to do

21 something, or call 9-1-1-, I had noticed Painter standing

22 there watching.

23 Q Okay. If he says --

2 4 "Daniel stated that as he was going to the front

25 door to see what was going on, which he seen David Raymond

Page 62

1 Sanders take a punch to the head by Shawn. Daniel stated he

2 then saw Zach tackle David to the ground."

3 Is that accurate with your recollection?

4 A The taller -- the taller guy?

5 Q The taller guy hitting him in the head and then Zach

6 tackling him, not kicking him.

7 A No. That isn't right.

B Q Okay. David Sanders gave a statement immediately following

9 to the police; correct?

10 A I believe he did.

11 Q Okay. And he was obviously present; correct?

12 A Yes.

13 Q And David states -- "David stated that Shawn was walking

14 towards him" -- Shawn, the taller guy -- okay? --

15 A Okay.

16 Q "Shawn was walking towards him, and that is when

1 7 David put his hands up and shrugged his shoulders

1 B wondering why Zach was hitting the vehicle. David

19 stated that is when Shawn screamed, 'Are you the

2 O fucking owner?' David stated he was not able to reply

21 to Shawn because Shawn kicked David in the chest."

22 Do you believe that's inaccurate?

23 A I don't know.

24 Q Fair to say it's not accurate with --

25 A From him --

Page 63


1 Q -- your recollection?

2 A -- standing out there and speaking what words were back and

3 forth to each other as to that, and what was said, and at

4 that moment, no, I do not recall.

5 Q How about him saying that Shawn kicked him in the chest?

6 Shawn being the taller guy.

7 A The taller one.

8 Q You're saying David is wrong in his statement?

9 A I didn't -- I didn't see that. I didn't see that part.

10 What I saw is the shorter kid coming from the side of the

11 vehicle that took him out, David was hanging onto him so

12 that he wouldn't get hurt, and then the other guy came

13 around. That's was when I seen him coming around.

14 So I saw him take him out, then I saw the guy come

15 from across the road, walking behind, and stomping him in

16 the back of the head, and another gentleman coming in to

17 help with that so that he would try to -- trying to stop it.

18 Q So as it pertains to David getting kicked in the chest, if

19 all the other statements indicate that it was Shawn that

20 kicked him, you would say that those statements are

21 incorrect; fair?

22 A The young -- the --

23 Q The taller guy.

24 A The taller guy?

25 Q Everybody else has given statements saying the taller guy --

1

2

3

4

5

6

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9

Page 64

including David says the taller guy kicked In him the chest.

If -- Is it your testimony that all of those statements are

not correct, --

A If he kicked --

Q -- according to you?

A -- him in the chest, I don't recall it. I did not see that.

That's probably one thing I did not see.

Q And, again, you don't recall Ivan being outside when you and

David -- or when David first walked and you followed David

out?

A I don't know who all came behind me.

Q But Ivan was not out before you? He was not out in the road

or across the street when you guys walked out; fair?

A Not that I recall.

Q Okay.

MR. BENSINGER: That's all I have.

EXAMINATION

cr' '-< ~ (')

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BY MS. HODEK: Q Q Heather, when you saw the short guy inside of Chauncey's did >,-

he appear intoxicated to you? 1--'

A Red, flushed in the face, his eyes were a little bloodshotN

so I'm sure he's had a lot. \0 Q Was he able to walk on his own; walk straight? N A He was walking on his own. 0 Q Was he -- what there -- what else would have indicated to ;;;

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1 you that he was intoxicated?

2 A When he was over by the pool table he wanted to play, and

3 they told him no. And he just -- by the way he was talking

4 and -- he seemed nice, and then all of a sudden he was just

5 really agitated; like that. Kind of slurring his words a

6 little bit.

7 Q Okay. Now, the tall guy, did he appear intoxicated to you?

8 A I don't know if he was, so I don't --

9 Q How did he appear to you? What --

1 o A Most of the time his back was to me in the bar. And then

11 outside seeing him for a few seconds as to what -- you know,

12 what had went on. Other than that, I don't know.

13 Q Did either of them at any time seem aggressive?

14 A During the fight?

15 Q (Nodding head in affirmative)

16 A The taller guy was -- seemed more aggressive when Deena had

17 told the younger one, "You know, you guys need to leave.

18 You're not being served here anymore." The taller guy,

19 he -- he had called Deena a bitch in front of the whole bar,

20 out loud. He was pretty aggressive about that. He could

21 have been.

22 Q Okay. Now, you talked earlier about Dave having memory

23 problems since this incident; is that correct?

24 A Yes.

25 Q Did he have memory problems before the incident?

Page 66

1 A No.

2 Q Would you call him a liar?

3 A No.

4 Q In your history of knowing David would you say that he

5 commonly lies?

6 A No.

7 Q Would you say that he's commonly confused?

8 A No.

9 Q Since the incident have his memory problems --

10 A Since the incident, yes.

11 Q Okay. How so?

12 A Doing certain jobs or tasks at home, or going to, like,

13 appointments, I have to remind him when the appointments

14 are. If I'm not -- if I'm not there, you know, I try to

15 send him a message, "What are you doing today", so he can

16 message me back and let me know what he's doing; like, when

17 he was working for Ivan; because he had to write down

18 everything that he did and his hours. By the end of the day

19 he couldn't remember.

20 So every day, yes, he thought I was a pain by

21 asking him what was going on, "What are you doing", "How

22 long did it take you," but that was his way of writing

23 things down.

24 Prior to all this I didn't have to do all that.

25 Q So would it be fair to say that, if he was describing a

Page 67


1 sequence of events, he could easily get confused in 2 describing that it happened --3 A Yes. 4 Q -- with that? 5 A Yes. 6 Q So earlier when we were talking about the fact that you and 7 David remember things differently, is it fair to say that s you would attribute that to his memory problems, or do you

9 think he's lying? 10 A Yes; his memory. 11 Q Okay. 12 MS. HODEK: Thank you. 13 EXAMINATION 14 BY MR. EWING:

15 Q Are you a Plaintiff in this case, ma'am? 16 A Yes. 1 7 Q What are you suing for? 18 A I'm the one that hired the lawyer for him; --19 Q You weren't injured. 20 A -- for David. 21 Q You weren't injured, were you? 22 A No. 23 MS. HODEK: I'd object to use of the word 24 "injured." 25 Q Were you physically injured?

Page 68

1 A No.

2 Q What's the nature of your Complaint? Why are you a 3 Plaintiff?

4 A With him not working, being stressed out, I am working over

5 40 hours a week, taking time off, making sure he gets to his

6 appointments.

7 Q Well, do you relate your medical condition that's prevented

8 you from working that you told us about earlier --

9 A Me being off --

1 o Q -- to this incident?

11 A Me being off on my medical right now?

12 Q Yes.

13 A No,

14 MR. EWING: I don't have any more questions.

15 EXAMINATION

16 BY MR. KING:

17 Q You were asked, regarding your observations of the younger

18 guy -- counsel asked you if he appeared intoxicated -- you

19 observed him when you first -- when you saw him this was

20 minutes before they lelt; correct?

21 A Yes.

22 Q Okay. And you didn't -- this was well-alter they had

23 been -- ordered whatever they did order at Chauncey's;

24 correct?

25 A Yes.

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Q All right.

MR. KING: I have no other questions.

MR. BENSINGER: A couple quick follow-ups.

EXAMINATION

BY MR. BENSINGER:

Q Your recollection is the younger shorter guy -- who I'm

goyig to tell you is Zach Pierce -

A Okay.

Q -- initially kicked David; correct?

A Yes.

Q David went to the ground, obviously -- or with Zach, and

then ended up on top of Zach, holding him down; correct?

A Yes.

Q At that point it doesn't sound like David was injured; fair?

A He was injured hanging on -- when he was hanging onto him

the taller gentleman came up behind both of them while they

were on the ground and he was stomping him on the back of

the neck and the head. So, yes, he was injured.

Q As a result of the big guy coming and stomping him In the

back of the head; correct?

A The taller guy, yes.

Q Yes. And you didn't see -- the younger guy, after he was

held down, he didn't kick David in the back of the head,

obviously?

A No.

Page 70

Q And didn't hit David in the back of the head? It was the taller guy that kicked and hit David; correct?

A Yes. MR. BENSINGER: Okay. That's all I have. Thank

you. MR. EWING: Thank you, ma'am. (Deposition concluded at 4:13 p.m.)

-0-0-0-

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DAVID R. SANDERS

October 10, 2016

Prepared by

t r Reporting - STATEWIDE COURT REPORTERS_...,

[email protected] Phone: 800.632.2720

Fax: 800.968.8653 www.networkreporting.com

Let us assist you GLOBALLY for all of your deposition needs.

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SANDERS v. SPOHN, IT AL DEPOSITION OF DAVID R. SANDERS

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MONTMORENCY

DAVID R. SANDERS, an individual, and HEATHER H. SANDERS, an individual,

Plaintiffs,

V

SHAWN SPOHN, an individual, ZACHARY PIERCE, an individual, TUMBLEWEED SALOON, INC., a domestic profit corporation, and PAINTER INVESTMENTS, INC., d/b/a Chauncey's Pub, a domestic profit corporation,

Defendants,

and

TUMBLEWEED SALOON, INC.,

Cross-Plaintiff,

V


Cross-Defendants.

I

File No. 16-003949-NO

HON. MICHAEL G. MACK

DEPOSITION OF DAVID R. SANDERS

~ Taken by the Defendant Tumbleweed Saloon on the 10th day of~

0 October, 2016, at 308 West Main Street, Gaylord, Michigan, ()

> at 11:00 a.m.

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1 APPEARANCES: 2 For the Plaintiffs: MS. HEIDI M. HODEK (P73966)

Ranieri Hanley & Hcxlek, PLC 3 4020 Copper View, Suite 225

Traverse City, Michigan 49684 4 (231) 486-6556 5 For the Defendant/ MR. MICHAEL C. EWING (P49797)

Cross-Plaintiff Ewing Carron & Fiato 6 Tumbleweed Saloon: 550 West Merrill Street, Suite 110

Birmingham, Michigan 48009 7 (248-262-5403 8 For the Defendant/ MR. BRADLEY S. BENSINGER (P60592)

Cross-Defendant Bensinger, Cotant & Menkes, PC 9 Pierce: 308 West Main Street

PO Box 1000 10 Gaylord, Michigan 49734

(989) 732-7536 11

For the Defendant MR. DANIEL P. KING (P31170) 12 Painter Investments: Pedersen Keenan King

Wachsberg & Andrzejak, PC 13 4057 Pioneer Drive, Suite 300

Commerce Township, Michigan 48390 14 (248) 363-6400 15 16 RECORDED BY: Suzan M. Stiles, CER 7137

Certified Electronic Recorder 17 Network Reporting Corporation

Firm Registration Number 8151 18 1-800-632-2720 19 20 21 22 23 24 25

1 2 3

Page 2

TABLE OF CONTENTS PAGE

Examination by Mr. Ewing ............... 4, 93 4

5 6 7

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Examination by Mr. King . . . . . . . . . . . . . . . . 79 Examination by Mr. Bensinger . . . . . . . . . . . . 84, 94 Examination by Mr. Hodek . . . . . . . . . . . . . . . . 92

EXHIBIT INDEX PAGE

Deposition Exhibit 1 marked . . . . . . . . . . . . . . 42 (Meklir Letter, 2-3-15)

Page 3


1 Gaylord, Michigan

2 Monday, October 10, 2016 - 12:51 p.m.

3 REPORTER: Do you solemnly swear or affirm that

4 the testimony you're about to give will be the whole truth?

5 MR. SANDERS: I do.

6 DAVID R. SANDERS

7 having been called by the Defendant/Cross-Plaintiff

8 Tumbleweed Saloon and sworn:

9 EXAMINATION

10 BY MR. EWING:

11 Q Sir, would you state your full name for the record?

12 A David Raymond Sanders.

13 Q Okay. Mr. Sanders, my name is Mike Ewing. I introduced

14 myself earlier. I'm an attorney, and I represent The

15 Highway Bar in this case. Some identify it as the

16 Tumbleweed.

17 A Okay.

18 Q This is my opportunity to ask you some questions regarding

19 the facts and circumstances of the evening in question, what

20 your activities were, what medical treatment you went

21 through, those kinds of things. Okay?

22 A Okay.

23 Q Other attorneys in the room can ask you questions as well.

24 A couple of ground rules we go by just to make the process

25 run more smoothly, sir. Any question that's asked of you

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you have to answer out loud with words that we can

understand. Okay?

A Understandable.

Q Because later on we're going to read what everyone says, -

A Okay.

Q -- and you can imagine how hard it is if someone is trying

to understand if you shook your head or even nodded your ~ head. Okay? t:d n

~ A I understand.

Q If you don't understand a question, tell me that. I'll rephrase it, I'll reask it, whatever it is. But the flip-

side of that, sir, is, if you answer a question, we're all t.d going to assume you understood it as asked. So I don't wand

to get down the road in this case and have you tell me, "Oh, CT" gee, I didn't understand that question," so make sure you '---< understand before you answer. Okay? ~

A I understand. (J Q Okay. If you don't know an answer, that's the answer you Q

give, and we'll just move forward. Okay? >,-A I understand. ~

Q Wait until the question is completely asked before you begit}

answering, and that way we have a clear record as well. \0 Okay, sir? N

A All right. 0 Q Okay. If you need to take a break, perfectly acceptable. ~

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1 Just let us know that you want to take a break and we can

2 take a break, with one very important caveat: I don't want

3 to take a break with a question pending. 4 A All right.

5 Q So if I ask a question, please answer it, and then take the

6 break.

7 A Okay.

8 Q Fair?

9 A Fair.

10 Q All right. What's your date of birth, sir? 11 A 5-27-69. 12 Q Current residential address?

13 A 17826 Francis Avenue, Hillman, Michigan.

14 Q How long have you lived there, sir?

15 A Three years.

16 Q Who do you live there with?

1 7 A My wife Heather.

18 Q Anybody else? 19 A Three kids.

20 Q What are they names?

21 A Riley, Haley, and Caleb.

22 Q All right What is Riley's age? 23 A 15. 24 Q How about Haley? 25 A 14.

Page 6

1 Q And Caleb? 2 A 15. 3 Q Is Riley a female? 4 A Yes. 5 Q Okay. How long have you been married to Heather? 6 A A little over a year. 7 Q Do you recall the date of this incident, sir? 8 A I believe it was December 4th, 2014. 9 Q Okay. The police report seems -- says -- indicates December

10 2nd. Would you dispute that? 11 A No. 12 Q Okay. So on December 2nd, 2014, did you live on Francis 13 Avenue in Hillman? 14 A I did, 15 Q Okay. Was Heather your fiancee at that time? 16 A No. What -- what -- answer the question -- ask the question 17 again, please. 18 Q Okay. I thought you said that you -- you married -- you've 19 been married to Heather for a year? 20 A Yeah. Just about a year now. Will be -- October 25th will 21 be a year. Sorry. 22 Q Okay. 23 A Yes. 24 Q So this is 2016. 25 A Yes.

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So you married her in October of '15?

Correct.

At the time of the incident were you married?

No.

Was Heather your fiancee at the time of the incident?

Yes.

Okay. You have been married before?

Correct.

And that was to Michelle?

Correct.

When did you marry Michelle? '93. Did that end in divorce?

It did.

What year? Oh, boy. 2004, I believe.

Okay. Are Riley --

My memory is not that great, so --

Sorry? My memory is not that great anymore, so I can't --

I don't know what you mean.

-- recall dates.

Are Riley, Haley and Caleb children of Michelle?

Just Caleb.

Just Caleb?

Page 8

Riley and Haley are Heather's from her first marriage.

I see. Okay. Have you adopted Riley and Haley?

No, I have not.

Are you currently employed?

No, I'm not.

Before we get into the employment let me ask you about your

education, sir. High school graduate?

Yes,I am.

What high school?

Alpena High.

What year?

g; n ~

'88. trJ And do you have any education beyond Alpena High School? U No. CT" Do you hold any certificates; any trade certificates, or '-<

memberships; anything like that? ~ None. ('.)

Okay. Never been in the military? Q No. ~ When were you last employed? ,.... Well, I just went to Colorado and tried to work for -- forN

awhile. It lasted about 20 days and I just came home. I..O Q

A Q

What did you try to do in Colorado? N Running heavy equipment again. 0 Like -- _....

00

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1 A 2 Q

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I was driving a tractor.

Okay. Were you able to drive the tractor and do it?

Yeah; for awhile. But then my -- my back and my neck, I

just couldn't -- I couldn't. I'm back in the same boat I

was in before, so --

All right. When did you go out to Colorado?

About 22 days ago -- or about 30 days ago it was.

Okay. Were you employed? Did you have a job?

When I went out there?

Yeah.

Yes.

Who did you work for?

Jonathan Weidman.

How do you spell that?

W-e-i-d-m-a-n.

Is Mr. Weidman from this area?

No.

Is he from Colorado?

Correct.

Okay. What was the name of the business he had?

Weidman's Ranch -- Weidman's Ranch -- I'm not sure.

All right. Did you --

I'm not really sure.

How did you know about the job?

I've known Jonathan for awhile, so --

Page 10

All right. Did he call you up, or did you call him?

I called him.

And said what?

"I'm looking for work, because I'm broke."

And what did he say?

He wanted to put me to work.

All right. So you felt like physically you could do the

work?

Well, I tried, yes. And then I just -- I couldn't do it, so

I ended up coming back home.

All right. Now, what about the work prevented you from

being able to do it?

The work?

Yeah.

The work itself?

Yeah.

Just driving tractor and everything, my back couldn't take

it anymore. My back is --

What -- how so?

The bouncing around, the constant sitting all day. I just

couldn't -- I couldn't do it.

Any particular region In your back?

My lower back and my neck.

Okay. Any other parts of your body, sir, that were causing

you trouble to work for Weidman?

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A No. Just my back and my neck. I couldn't -- driving

tractor I'm constantly having to turn; turn around and, you

know--

Q The seat swivels around?

A No.

Q It does not?

A No.

Q Okay. What do you currently do for income?

A Right now I'm not doing nothing. Living off of what little

bit of money I made in the 21 days. And then after that I

don't know.

Q Is Heather employed?

A No, not at this time.

Q Before you went out to Colorado -- I think you said 22 days

ago?

A Yeah, about -- yeah, it was September -- I can't even

remember now.

Q Okay. Before you went out there, sir, what was your last

employment?

A With Ivan Hanson, Hanson Enterprises.

Q Where is Hanson Enterprises?

A He's located on M-32 in Alpena.

Q What kind of work -- what kind of job did you have?

A I was doing apartment maintenance.

Q Okay. How long did you have that job?

Page 12

A Two years. I believe I worked for him for two years prior

there.

Q From when to when?

A I couldn't tell you from when to when. I'm -- I ended --

October of last year is when I quit working for him.

Q Okay.

A About October 1st is when things started slowing down for m¢rj

after-- t.d Q All right. So you quit working for Hanson's October of

2015?

A I believe so, yes.

Q Okay. And did you start, than, in October of '13?

A Somewhere -- no. It more of, I think, in June of '13.

Q June of '13?

A Somewhere in there, yeah.

Q Okay. So you worked for Hanson's between June of '13 and

October of 2015?

A I believe so; correct, yes.

Q Okay. Why did you leave in October?

A I couldn't -- the maintenance, I couldn't do the work

anymore. My back was -- I couldn't walk around all the

time, I couldn't do all the bending, and getting under the

cabinets and whatnot anymore, and -- I just couldn't do it

anymore.

The headaches, I was getting terrible headaches

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1 from the stress and everything, so I just -- I ended up

2 leaving.

3 Q Okay. But you did it -- this incident happened December of

4 '14?

5 A Correct.

6 Q So you did the work for ten months after that?

7 A As much as I could, yes. If you seen my records, I didn't

8 work very often. When I --

9 Q How often did you work?

10 A Maybe 30 hours a week, if that.

11 Q Doing this kind of maintenance work?

12 A Correct.

13 Q What did ail the maintenance work entail?

14 A Painting, fixing toilets, crawling under sinks, faucets,

15 cleaned carpets, cutting grass.

16 Q Did you have a crew?

17 A No.

18 Q Just yourself?

19 A Justme.

20 Q Okay. And you did that for 30 hours for ten or eleven

21 months; 30 hours per week?

22 A Yeah; an average of maybe 30 hours a week, yeah.

23 Q Okay. Did you have any other form of Income during that

24 two-year period?

25 A No.

Page 14

1 Q Did you have any form of Income, sir, in any way from doing

2 any sort of work; odd jobs, any sort of work at ail; between

3 leaving Hanson's in October of 2015 and going out to

4 Colorado 22 days ago?

5 A None.

6 Q So during the time frame that I just told you about, sir,

7 your answer is that you had no income from any source during

8 that time frame?

9 A No.

10 Q Okay.

11 A Just -- well, my wife. She worked at that point in time,

12 yeah.

13 Q Ail right.

14 A But I didn't have nothing myself.

15 Q But I'm talking about you, yourself.

16 A Yeah. No; no, I had none.

17 Q None. Okay. What would you spend your time doing?

18 A Working around the yard, trying to do things around the

19 house; what I could.

20 Q Would you engage in hobbies and things?

21 A Not really. Just fixing things around the house, what I

22 could.

23 Q What kinds of --

24 A Going to doctors. I had lots of doctors' appointments; I 25 had lots and lots of doctors' appointments in that time.

Page 15


1 Q What kinds of things would you fix?

2 A I don't know. The broken door, or window, or whatever --

3 whatever needs to be fixed. Do you know what I mean? Just

4 little things. Mow the grass, keep the grass cut, take care

5 of the dogs.

6 Q Okay. Would you fix, like, machinery?

7 A No.

8 Q Okay. What - my question is how were you able to do those

9 kinds of things but you couldn't do -- mow the grass or do

10 the other kind of maintenance for Hanson's?

11 A Because I only worked when I needed to work, and I could do

12 what I had to do, and then I would take my break when I

13 needed to take a break. I couldn't do that for Hanson. I

14 couldn't just go and stop and take a two-hour break whenever

15 I needed to -- do you know what I mean? -- to rest my back.

16 Q But if you were able to do that, you could have done the

17 work? If you were able to take a break, you could. have

18 continued with the work?

19 A Well, sure, yes, if somebody is going to let me take a two·

20 hour break every so often whenever I needed to.

21 Q Okay. So what I need to ask -- so mowing the grass for

22 Hanson -- what's the difference between mowing the grass for

23 Hanson and mowing the grass for Dave Sanders at his house?

24 A At Hanson I've got a 48-apartment-unit building that I've

25 got to take care of, and it's a big old lawn, and my grass

Page 16

1 isn't that big.

2 Q Okay; okay. So how much could you do, sir -- how much

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A Maybe a half hour on a riding lawnmower.

Q And, like, fixing things around the house; the door that

you've mentioned you fixed, and -- maybe something else; a

sink, or some such thing; how was fixing the sink at

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A I didn't fix any sinks at my house or anything, so -- l:IJ Q Or fixing the door? ~ A What's the -- a door knob? Fix a door knob, no big deal. 11:IJ

mean, yeah, I could have done that at Hanson's too, but, U like I said, he ain't going to give me a two-hour break whe'o-'

I need a two-hour break. '-< Q Did you ever ask him? ~ A Well, no, I didn't ask him. But who is going to give you a (J

two-hour break?

Q I'm just asking you if you asked him.

A No.

Q Did you leave Hanson's on your own?

A Yes, I did.

Q He didn't fire you?

A No.

25 Q Did you leave Hanson's for another job?

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1 A No. I left Hanson's for medical reasons.

2 Q Did any doctor tell you that you should leave Hanson's and

3 that you shouldn't do that kind of work?

4 A Actually, my one doctor did tell me that I should find a

5 different job due to the fact that it was giving me too many 6 headaches. I thought maybe that was causing all of my

7 headaches from -- from this incident that I started getting

8 headaches; bad headaches.

9 Q That doing maintenance work caused you headaches?

10 A Well, the stress of everything. I had 48 apartment units

11 that I dealt with by myself, so I had a lot of people I

12 dealt with, a lot of angry people.

13 Q But since leaving Hanson's have the headaches improved,

14 than, because the stress went down?

15 A Not really, I still get them -- I'm still on medication for

16 the headaches.

17 Q So did you ever talk to your doctor and say, "Hey, I left

18 Hanson's, so I'm not responsible for 48 units, but I still

19 have the headaches. What's the story here? Because the

20 stress is going down, but I still have the headaches"?

21 A We're still working on all that.

22 Q Did he -- who is this doctor?

23 A Dr. Hillman.

24 Q Did Dr. Hillman ever give you an explanation to that?

25 A No.

Page 18

1 Q So he -- Dr. Hillman said, "Leave the maintenance work

2 because it's causing you stress and giving you headaches."

3 You left the maintenance work, but you still have the stress

4 and the headaches?

5 A I still have the headaches, yes. I don't have the stress, 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

but I have the headaches, yes.

Q You had headaches before this, didn't you, sir?

A Not the way I have, no; not the way I have now.

Q You had medical problems with your neck and back before this

incident, didn't you?

A No.

Q Not at ail?

A Well, I had -- yeah, but not the way I -- not the problems

that I have now.

Q Have you ever -- did you ever try to commit suicide, sir?

A No.

Q And your testimony is that prior to this incident you never

suffered from any sort of extended headaches that you needed

medical treatment for? Is that your testimony?

A Well, I've had migraines. Everybody has had migraines.

I've had shots for them before, yes.

Q All right.

A But not like I'm getting them now. I have migraines quite

often now. Before it was far and few between. Now I get

them once a month, every two weeks.

Page 19


1 Q Let me ask you: When did you -- what year in your life did

2 you start suffering from migraine headaches?

3 A I've had migraines when I was a younger kid.

4 Q Okay. Teenager?

5 A Yeah.

6 Q Okay. And isn't it true, Mr. Sanders, that you suffered

7 from migraine headaches on a fairly regular basis from the

8 time you were a teenager through your adult life? That's a

9 true statement, isn't it?

1 O A Well, I guess, yeah. But not the way I have them now is

11 what I'm trying to say. You're putting words in my mouth.

12 Yeah, I've had headaches, and I had migraines before, but 13

14

15

not like I have migraines now. Now I have migraines every

two weeks to once a month. Before it would be maybe once,

twice a year I'd have to go in for a shot. Now I'm going in

16 quite often for shots.

1 7 Q Is this deposition stressing you out?

18 A Yes, it is.

19 Q Is it giving you a headache?

20 A No.

21 Q Okay. So your testimony is that before this incident you

22 suffered from migraine headaches as a teenager up until your

23 adult life, but after this incident you would have a greater

24 number of migraines than you did prior; is that true?

25 A Yes.

Page 20

1 Q What greater number?

2 A Now I'm getting them every two weeks to maybe once a month.

3 Q Okay. And have you gotten them every two weeks to maybe

4 once a month since this incident?

5 A Yes.

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10

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12

13

14

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Q Okay. And prior to this incident, sir, you also suffered

from neck -- which is identified as cervical in medical

records -- and back injuries and problems before this

incident too; is that true?

A Not neck injuries, no.

Q How about back?

A My back was -- I had a sore back before, yes.

Q Sore enough where you were getting medical treatment;

correct?

A Yes.

Q What was the nature of the -- first of all, back up to the

headaches. What caused the migraine headaches as a

teenager?

A I have no idea.

Q Okay. Were you treated for those?

A No. They just give me a shot and then they sent you on your

way.

Q All right. And who gave you the shot and sent you on your

way?

A Usually the ER.

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1 Q That's where you went? 1 A

2 A Yup. 2

3 Q What ER; what hospital? 3 Q 4 A Alpena. 4 A

5 Q Is it a General Hospital? 5

6 A Alpena General Hospital. 6

7 Q Okay. 7

8 A I don't know what it's called now. It's changed, so -- 8 Q 9 Q Okay. And then what was the nature of your back problems 9

10 that you sought treatment for before this incident? 10 A 11 A Just a sore back. 11 Q 12 Q From what? 12

13 A I -- who knows from what. 13 A 14 Q You don't know? 14 Q 15 A Well, I don't know. 15 A 16 Q Well, did the doctors ever explain to you, "Hey, David, this 16 Q 17 is what's causing your back injury"? 17

18 A No. 18 A 19 Q Were you ever involved in a car accident before this 19 Q 20 incident? 20 A 21 A No. 21 Q 22 Q Motorcycle accident? 22 A 23 A No. 23 Q

24 Q You still ride motorcycles, don't you? 24

25 A Correct. 25 A

Page 22

1 Q How often do you ride motorcycles? 1 Q 2 A Whenever I can. 2 A 3 Q What does that mean? 3 Q 4 A Whenever the weather is permitting, I guess. 4 A 5 Q So if the weather is nice, you're riding? 5 Q 6 A If I can, yeah. 6 A 7 Q Okay. What do you ride, sir? 7 Q 8 A I ride a Harley. 8 A 9 Q What size Harley do you ride? 9 Q

10 A 1750. 10 A 11 Q Okay. You're able to ride the Harley, and obey all of the 11 Q 12 laws and such when you ride your Harley? 12 A 13 A lam. 13

14 Q Okay. You can turn your head and look? 14 Q 15 A As much as I need to, yeah. I use my mirrors. 15

16 Q Okay. Have you been in an accident in any way, sir, since 16 A 17 this incident? 17

18 A No. 18

19 Q Have you been injured in any way since this incident? 19 Q

20 A No. 20 A 21 Q Okay. When you're on your Harley, sir, that's the type of 21 Q

22 motorcycle that can vibrate; correct? 22 A 23 A I guess, yeah. 23 Q 24 Q When you're sitting on it it vibrates like crazy as for your 24 A 25 standing position, doesn't it? 25 Q

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Not mine. Mine has got a rubber-mounted motor so it doesn't

vibrate.

Okay. So that doesn't affect you whatsoever?

No. I can only ride for so long, and then I put it away,

so it's not like I'm out riding all day long. I maybe -- if

I'm lucky, I ride for a hour, and then I put it back. And

as far as I ride is in to town, which is seven miles away.

Have you done any roofing work since this incident for

anybody?

No.

Have you done any roofing work before this incident for

anybody?

No, not that I'm --

Not that what?

Not that I'm aware of, no.

All right. But you're certain that you haven't done any

roofing work for anybody since this incident?

Since this incident, no.

You're certain you have not; correct?

Not that I'm aware of, no.

Well, you would remember if you were on a roof doing work --

I would imagine, yeah.

Yeah. All right; all right. What did you do before

Hanson's? What was your --

I worked at the power plant in Hillman.

Page 24

How long were you there? Eight years.

From when to when?

2005 to 2013.

Okay. And that's when you went to Hanson's? Yeah, pretty much.

Why did you leave the power plant? ~ Personal reasons.

What were they? n Personal reasons. t:d You need to tell me what they are. ~ They had to deal with the boss, and so on and so forth t:d

between him and I, and -- 0 What do you mean? Did it have something to do with your c:r

work history? '-< Not my work history. I had a -- well, he had a thing for~

me, and I had a thing for him, and it just didn't work out()

so I ended up leaving.

Did he fire you?

No.

Who was your boss.

Keith Molka.

Spell the last name. I have no idea.

say It again.

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1 A Molka (pronouncing). 1 Q

2 Q Malka (pronouncing)? 2 A 3 A Yeah. 3 Q

4 Q Do you know if Mr. Molka is still at the power plant? 4

5 A No; he got fired soon after I left. 5

6 Q Okay. Have you applied for Social Security Disability? 6

7 A I have. 7 A 8 Q When did you apply for that? 8 Q

9 A About a year ago. 9 A 10 Q Did you apply for that after this incident? 10

11 A I did. 11 Q 12 Q Did you apply for it at any time before this incident? 12 A 13 A I did. 13

14 Q Okay. When did you apply for it before this incident? 14 Q 15 A Back in 2013. 15 A 16 Q Okay. And what was the nature of the disability, sir, that 16 Q 17 caused you to apply for Social Security Disability benefits 17 A 18 back in 2013? 18 Q 19 A My lower back. 19 A 20 Q Okay. 20 Q 21 A And my knees. 21

22 Q Your knees? 22

23 A My knees are really -- my knees are shot. 23 A 24 Q What's that from? 24

25 A Doing the plumbing that I used to do. 25 Q

Page 26

1 Q What was the outcome of your application for Social Security 1 A 2 benefits? 2 Q

3 A It was denied. 3 A 4 Q I'm talking about the first one. 4 Q

5 A Denied. 5

6 Q How about the second one? 6

7 A Denied. 7 A 8 Q Did you retain a lawyer to do that? 8

9 A No, I did not. 9 Q

10 Q And did you retain a lawyer to do either one of your 10 A 11 applications? 11

12 A No. 12 Q

13 Q When you filled out your first application for Social 13 A 14 Security Disability benefits, sir, did you have to attach 14 Q

15 medical records that would authenticate the disability that 15

16 you wanted to be paid for? 16

17 A I did not. I went to see their doctor is all I did. 17

18 Q But, at least in your mind, back in 2013 you had been 18

19 suffering from such low back pain that you thought you were 19 A 20 entitled to Social Security benefits? 20

21 A That and my knees. 21

22 Q Okay. What about this incident, sir, that prevented you 22 Q

23 from doing the work in Colorado that was any different from 23 A 24 the low back problems you were suffering in 2013? 24 Q

25 A I've gotten -- it's all gotten worse since then, so -- 25 A

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I'm talking specifically just about your low back now.

Yeah. You're just saying it was bad enough in 2013 where you

thought you could get Social Security benefits; Disability

benefits; but, because of this incident that we're here

about, it increased?

It did.

Okay.

The pain has increased, I've been to a lot more doctors. I've seen a lot more doctors, did a lot more things.

When is the last doctor appointment you had?

Probably about a month ago. Well, it was prior to me going

Out West I went and seen my doctor. Who did you see?

Dr. Cody. Is that a family doctor?

Yes. Okay. What did you see him for?

Just a typical physical.

Okay. As you sit here today, sir; October 10th, 2016; do

you know of a date certain where you have a doctor

appointment in the future?

No, I don't. I know I have one coming up, but I don't know when itis.

What's it for?

Page 28

Checking just -- a follow-up from the last appointment. From Cody?

Yes.

Okay. But you saw Dr. Cody for a physical before you left

for Colorado for just a normal physical that had nothing --

that was outside of anything to do with this case?

No. He just wanted to see me for -- to check my weight anc~ my every-day --

(') Okay.

You know, my meds; my med-fit checkup is basically what i~ was and everything. So that's --Okay. So that's -- t.d -- what I've got to go back for. u Okay. When is the last medical appointment you had, sir -- c:r

and I'm not looking for a specific date; unless you know it; '<; but a month and year would be fine -- when is the last ~ medical appointment you had for injuries resulting from this (') incident that we're here about? 0 Pain clinic. I've been to the pain clinic. It was -- I > want to say, back in August of this year was the last time I

"""'"' was there. N Pain clinic? What pain clinic? \,0 Here in Gaylord. N What did they do for you? 0 They give me shots. They give me three injections in my """'"' 00

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1 neck so far, and two in my back. 1 A 2 Q Okay. Have you undergone any sort of physical therapy since 2 Q 3 this incident? 3

4 A I started physical therapy right after, and then the 4

5 therapist told me not to come back because it was -- I was 5 A 6 in more pain than what it was doing good, so -- 6 Q 7 Q How much physical therapy did you go through? 7 A 8 A I was there for about -- four sessions I think I went to. 8 Q 9 That was in Hillman. 9 A

10 Q Four times? 10 Q 11 A Four times, yes. 11

12 Q Okay. And what did the physical therapist focus on? 12 A 13 A My shoulder and my neck area. 13 Q 14 Q Which shoulder? 14

15 A My right shoulder. 15 A 16 Q Okay. And the three shots you had back in August, was that 16

17 in your neck? 17

18 A Three in my neck, yes. They weren't all at one time. They 18 Q 19 were three different appointments. 19

20 Q Had you had shots before this? 20 A 21 A No. 21 Q 22 Q I mean -- 22 A 23 A Not kind of -- not any kind of pain injection shots, no. 23 Q 24 Q Okay. So this was the first pain injection you had, in 24

25 August? 25

Page 30

1 A Correct. 1

2 Q Okay. Did you undergo surgery as a result of this incident? 2

3 A No, not yet. 3 A

4 Q Did you receive any sort of stitches as a result of this 4 Q 5 incident? 5

6 A No. 6 A

7 Q Any bandages as a result of this incident? 7

8 A No, I don't think I did. Just a lot of ice packs. 8

9 Q Were you at the hospital immediately following the incident? 9 Q 10 A Yes, I was. 10 A

11 Q Which hospital, sir? 11

12 A Alpena. 12 Q

13 Q How did you get there? 13

14 A My wife drove me. 14 A

15 Q All right. Was anyone else with your wife when she drove 15 Q

16 you? 16

17 A No; just the two of us. 17

18 Q Okay. Did you go directly to the hospital? 18 A

19 A Yes, we did. 19 Q

20 Q Were you admitted into the hospital where you stayed 20 A

21 overnight? 21

22 A No. 22

23 Q When you left the hospital where did you go? 23 Q

24 A Home. 24 A

25 Q Did Heather drive you home? 25

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She did.

When you left the hospital did you leave with any sort of

walking devices; a cane, a four-leg walker, a four-legged

cane; anything like that?

No.

How about any slings, casts, any devices like that?

None.

Did you leave with a prescription for medication?

Gosh, I don't even remember now.

Do you recall speaking to the triage nurse and the ER doc at

the hospita I?

Very little, yes.

Did you tell them -- either one of those people what your

complaints were?

Yes. My neck, my back, my head. They did all kinds of

CAT -- they did a -- okay, I do believe they did a CAT scan

that day.

When you were telling these people this was Heather in the

room?

She was.

Okay.

I think she spoke more than I spoke, so --

Well, let me ask you -- that's what I wanted to ask you

about. Did you specifically tell the medical personnel at

the hospital the complaints you were having; not Heather

Page 32

says, ''This is what's going on", but David Sanders saying,

"This is what's going on"?

Well, I couldn't -- I can't recall at this point in time.

Okay. When you left did you -- what diagnosis did you leave

with?

I don't even remember. A concussion, I believe. I'm not

sure if that was a concussion. And waiting on results from ~ the other--

The diagnostic -- 0 -- the other tests that they had done; we were waiting on tn ,....,

those to come back for my doctor. < All right. I'm sure you've heard the results by this time tn

of what those tests were. 0 Yeah. cr' Okay. Did any of those tests that you had at the ER the '-<

night of this incident come back positive, to your ~ knowledge? 0 My neck was damaged. 0 How so? > Vertebrae -- oh, you're going to have to ask my wife more o~

this than me, because she knows more -- way more of it thart::3

I do, so -- \..0 What was the result of the CAT scan?

-----t0 I -- that you would have to ask her. Like I said, I don't 0

remember much of anything of that, so --,..... 00

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1 Q All right.

2 A She's got all that. She's --

3 Q Did you complain -- well, it sounds like you didn't

4 complain -- or you don't remember if you complained of

5 anything, but it was Heather apparently filling in the docs?

6 Is that it?

7 A Could be. I don't -- you know, I don't remember much of

8 that night, so --

9 Q Okay. Did you -- okay. When is the next doctor appointment

1 o you had following the ER visit?

11 A I want to say it was the next day.

12 Q Who did you see?

13 A I don't know if it was Cody or if it was Dr. Hillman; I'm

14 not sure.

15 Q Is Dr. Hillman your family doctor as well?

16 A What was that?

1 7 Q Is Dr. Hillman your family doctor as well?

18 A Yes. He was, and then I moved to Dr. Cody.

19 Q Okay. And then when -- who else have you seen, sir, other

20 than the ER doc -- or the ER-- you know, at the hospital,

21 Dr. Cody, and Dr. Hillman, and the pain clinic? What other 22 doctors have you seen as a result of this incident?

23 A I saw Dr. Pintara (sic).

2 4 Q For what?

25 A He did a test on my -- I guess my brain, to test everything;

Page 34

1 my memory and all that. 2 Q Did you take a test? 3 A A 12-hour test. 4 Q Yeah, okay. When did you have that done? 5 A It's been back in -- I want to say June, July maybe. 6 Q Did any doctor ever restrict you from driving either a 7 motorcycle or a motor vehicle? 8 A Nobody has said anything yet, no. 9 Q How did you learn of Dr. Pintaro's (sic) name?

10 A Through my attorney. 11 Q Where is Dr. Pintaro? 12 A In Traverse City. 13 Q And you said this test was done this past summer? 14 A Yes. 15 Q Okay. Who have you seen other than Dr. Pintaro and the 16 other docs you mentioned for me? 17 A I believe that's it. 18 Q Have you seen the written resu It from Dr. Pintaro of what 19 the tests showed? 20 A I do have her -- I do -- I don't have the copy with me, but 21 I do have results, yes. 22 Q What are the results of this test, if you know? 23 A They were -- they were ·- my reading was down, my memory was 24 down, all my·· everything was·· points were low, so·· 25 Q Well, prior to this incident, sir, your memory wasn't the

Page 35


1 best either, was it?

2 A Better than what it is now.

3 Q Okay. And your reading wasn't the best before this

4 incident, was it?

5 A No; my reading has always been bad, yeah.

6 Q Right. I mean, didn't you complain, sir, in prior medical

7 histories that you had problems with your memory?

8 A No, not that I recall. 9 Q You've never done that?

10 A Not that I recall.

11 Q If there's medical records that show that you've complained

12 of a memory issue, do you dispute that?

13 A No. But I don't recall -- recall it, no. I never ever

14 recall going to the doctor about my memory.

15 Q Well, not specifically about your memory, but maybe going

16 for some kind of treatment and you mentioning that you have

1 7 memory issues?

18 A No, not that I recall.

19 Q Okay. Do you have a follow-up appointment with Dr. Pintaro?

20 A I believe I do, but I'm not sure when.

21 Q And this Dr. Pintaro came to you as a -- you had learned 22 this -- is this a woman?

23 A No. It's a man.

24 Q It's a man. You learned of Dr. Pintaro not from any medical 25 professional, but rather from your attorney; correct?

Page 36

1 A I believe it was from him, yes. I'm not -- I believe so, 2 yes. 3 Q Okay. Prior to this incident, sir, what else was going on 4 in your life that caused you stress; stress and anxiety? 5 A Nothing, really. 6 Q Did the divorce from Michelle cause that? 7

3·

A At first. That was in ·· that's been six years ago. G; Q But there was quite a bit of stress involved with that, 9

10

11

12

wasn't there, sir, in your view? n A At first, six years ago. Now we're best friends again, tn

so-· ~ Q And would you describe that -- your relationship with 13 Michelle as being your best friend? d 14 A We're pretty good friends right now, yeah, we're ·· I meano-' 15

16

17

18

19

20

21

22

23

24

25

we get along with our-· with each other. I mean, we don't<

fight and argue like we used to or anything, so --

Q Okay. How about your work -- your employment; was that a

cause of stress before this incident?

A Working·· unemployment?

Q Unemployment, employment.

A No. Q Okay. How about the denial of your Social Security

application in 2013; was that a cause of stress?

A It was one of those things. I mean, I wasn't really

expecting to get it.

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1 Q All right. How about daily living and complications with,

2 you know, making bill payments, and, you know, taking care

3 of kids, and being -- was that a stressful time for you?

4 A Not really. I mean, everything we've got is paid for, so I 5 don't really have too many·· too much stress over it, so ·· 6 all I have to do is take care of myself, my family, and 7 that's it. 8 Q Well, what was causing the migraine headaches that you

9 suffered from as a teenager all the way up through your

10 adult life, ifthere was no stress?

11 A Who knows. 12 Q And that's a mystery to you?

13 A I'm not a doctor, so I couldn't tell you. 14 Q But you've been to doctors and complained of this.

15 A And they couldn't tell me either, so ·· 16 Q Did you ask?

17 A I've asked. I've asked for CAT -- they've done CAT scans, 18 I've done all kinds of things. Nothing. 19 Q Did they ever tell you that you were a malingerer and you

20 were faking it?

21 A No.

22 Q You retained Ranieri Hanley & Hodek as your lawyers on

23 November 17, 2015; correct?

24 A What's that?

25 Q I said you retained your current lawyer; Ranieri Hanley &

Page 38

1 Hodek; on November 17, 2015; correct?

2 A Sounds about right.

3 Q Do you want to see the retainer agreement to look at it?

4 A No. That's fine. 5 Q Okay. And in Answers to Interrogatories -- do you recall

6 answering Interrogatories, sir?

7 A No. 8 Q There was a big stack of questions that were sent to you by

9 my client, I think; Chauncey's; --

10 A Okay.

11 Q -- and I think Mr. Pierce's lawyer sent you some, and they

12 were a stack of questions -- the formal term is

13 "Interrogatories", but really they're written questions.

14 A Okay. 15 Q Do you recall receiving those?

16 A Yes.

17 Q Do you recall answering those?

18 A Yes.

19 Q Okay. Who helped you with the Answers, if anybody?

20 A Nobody answered ·· I answered what I could, and that was it. 21 Q Okay. One of the things that you produced is that you --

22 was a Retainer Agreement where you retained the current law

23 firm on November 17, 2015, and that you sent written notice

24 of your action against Tumbleweed on November 30, 2015.

25 Do you recall that?

Page 39

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Q A


I don't recall any of that, no. I don't know.

Okay. Well, when did you learn the names -- we already know

the date of the incident. We said it was December 2, 2014;

correct?

Okay.

Well, that's what we -

Yes. -- we said; right?

(Nodding head in affirmative) When did you learn the names Zachary Pierce and George -

or, sorry -- and Shawn Spohn are the people that allegedly

did this to you? When did you learn those names?

God, I don't even remember now.

Do you think you learned them within a week?

Oh, yeah; I'm sure, yeah. Okay. So within a week of the incident you knew those

names?

Sure. Okay. But this firm that is representing you now is not the

first firm you hired, is it?

I'm not sure. Didn't you hire a firm down in Southfield?

Yeah. They're the ones that recommended these guys.

Okay. Who is the firm you hired down In Southfield?

That I couldn't tell you at this point in time. I don't

Page 40

recall.

Q Maybe I can.

A Oh, it was --

Q Sommers Schwartz, wasn't it?

A Yes. Q And you hired Samuel Meklir, didn't you?

A Samuel Meklir is the one that referred us to that -- to him,~

yes. tr1 Q But you retained Samuel Meklir initially? (')

~ A I didn't retain -- I didn't retain him. I didn't sign no

papers with him, I didn't retain nothing with him.

Q You never retained him?

A No. I talked to him, but that was it. Q Well, he wrote a letter to Tumbleweed saying that you had

retained him to pursue a case against Tumbleweed. Are you

aware of that?

A I didn't·· no; I'm not aware of that, no. Q Do you dispute that -- do you dispute Mr. Meklir -- Attorney

Meklir, that you did not retain him?

er '-< ~ (') 0 > A I did not -- not that I'm aware of we did not retain him. I 1--'

don't recall signing any papers with him. I remember goin!f::3 down and seeing him, and he said not to sign any papers al\c)

~ti~ ~ Q Okay. Just give me a minute. 0

I have a letter, sir, dated February 3, 2015,

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written by Attorney Samuel Meklir;

2 M-e-k-l+r; an attorney at S0mmers Schwartz. And I'll let

3 you look at it, and I'll ask you if you've ever seen this

4 letter before, sir?

5 (Witness reviews document)

6 A No, I haven't.

7 Q Okay.

8 A Not that I'm aware of, I know I have never seen that letter.

9 Q Okay. 10

11 Suzan.

MR. EWING: I want to mark this as an Exhibit,

12 (Deposition Exhibit 1 marked)

13 MR. EWING: Thank you.

14 Q I'm referring to the February 3, 2015, letter. Did you --

15 you read that -- correct? --


17 Q -- moments ago? You have to answer out loud.

18 A "Yes."

19 Q Okay. And now it's been marked as Exhibit 1; D. Sanders

2 o Exhibit 1. Mr. Meklir writes, "Please be advised" -- and

21 this is to the Highway Bar -- "that I represent Mr. David

22 Sanders as a result of injuries he sustained while at The

23 Highway Bar which occurred on December 2, 2014."

2 4 Do you dispute that he represented you?

25 A I didn't -- yeah. I didn't -- I didn't hire him. I didn't

1

2 Q

3

4 A 5 Q

6 A 7

8 Q

9 A 10

11 Q

12 A 13

14 Q

15 A 16 Q

17 A 18 Q

19 A 20 Q

21 A 22 Q

23 A 24 Q

25 A

Page 42

sign no papers with Mr. Meklir.

Okay. But you were not injured at the Tumbleweed Bar, were

you?

No.

How did he learn that; do you know?

I told you I went down and seen Mr. Meklir. I talked to

Mr. Meklir, but I did not sign any papers with him.

What did you tell him?

I explained what happened to him; what -- the whole

situation happened there.

What did you tell him specifically?

I don't remember what I told him specifically, to be honest

with you.

You don't?

No, I don't.

How did you learn his name?

He was my wife's lawyer.

Heather?

Heather.

For what?

Some thing that she had with her daughter back in the day.

Was she injured?

Her daughter was, yeah, during birth.

Okay. Is that Riley, or who is that?

I think it was Haley.

Page 43


1 Q Okay. I guess Mr. Meklir will have to testify, because

2 you're not daiming -- you're -- I want to make sure this is

3 true, sir. You're claiming, despite what's written here,

4 that you did not retain him; correct?

5 A Correct.

6 Q So that, than, there would not be any attorney/client

7 privilege between him and you, because you did not retain

8 him?

9 A I didn't -- not that I'm aware of. I didn't sign no papers

10 with him, no, so --

11 Q Is It something you could have signed, but forgot about?

12 A Could have been, but I don't recall. I don't remember,

13 so --

14 Q All right. You don't remember now?

15 A I don't remember talking -- signing any papers with

16 Mr. Meklir, no.

17 Q Okay. But this notice that he sent to Highway Bar on

18 February 3, 2015, sir, does not identify the names of

19 Zachary Pierce and Shawn Spohn; correct?

2 o A Correct.

21 Q But you knew those names at the time of this letter;

22 correct?

23 A I could have. I'm not sure.

24 Q Well, you testified moments ago that you learned them within

25 a week of the incident.

Page 44

1 A I could have learned them in a week of the incident. I

2 don't -- I don't remember. I'm telling you my memory is

3 shot.

4 Q Okay. So do you remember anything about the incident?

5 A Barely -- very little.

6 Q Okay. Very -- very --

7 A I remember coming out of the bar --

8 Q Well, wait a minute. We'll get into that. I'm just -- your

9 answer is that you remember very little about the incident?

10 A Yes.

11 Q Okay. So that when we get into the details of the incident

12 can we expect to hear that you don't know the details, or

13 are you going to remember the details with specificity? 14 A I don't remember much of the -- the details. You're goinQO"' 15

16

17

18

19

20

21

22

23

24

25

to have to ask my wife on all that. She watched it all,

50 --

Q I intend to. But I want to ask you now too.

A Well you -- well --

Q So you just do the best you can. Okay?

Let me get myself organized here.

MR. EWING: I guess, Brad, we might need copies of

this if this is an exhibit, at some point.

MR. BENSINGER: Do you want copies before you

leave, or is she just going to attach it?

MR. EWING: She can attach it now, but I assume

Page 45

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1

2

3

4

5 Q 6

7 A 8 Q 9 A

10 Q 11

12

13 A 14 Q 15

16 A 17 Q 18

19 A 20 Q 21 A 22 Q 23 A 24 Q 25 A

1 Q 2 A 3 Q 4 A 5 Q 6 A 7 Q 8

9 A 10 Q 11 A 12 Q 13

14 A 15

16 Q 17 A 18 Q 19 A 20 Q 21 A 22 Q 23 A 24 Q 25 A

that we all want copies of it. Dan, you might be interested

in that.

MR. KING: I can make -MR. EWING: Okay.

Before this incident, sir, had you ever heard the name

Zachary Pierce?

No.

Had you ever heard the name Shawn Spohn?

No.

Okay. Prior to this incident, but on the night of the

incident -- okay? -- on the night of the incident, but prior

to it, were you in Tumbleweed Saloon?

No.

Are you aware of anyone that was in Tumbleweed Saloon the

night of the incident, but prior to it?

No.

Were you at Chauncey's Pub on the night of the incident, but

prior to the incident?

I was on the night of the incident.

Have you been to Tumbleweed since the incident?

For breakfast.

How many times?

Maybe twice.

When's the last time? Oh, god. It's been a few months.

Page 46

Do you remember what you ordered?

No.

Were you with anyone?

My wife.

Who drove here to this office today?

I did.

Did you know how to get here without any kind of devices

like MapQuest, or Google, or anything like that?

No.

So you needed that?

Yeah.

Okay. When did you arrive at Chauncey's the night of the

incident? I want to say about -- god, I don't even -- it was

dinnertime, so around 7:00 o'clock maybe.

Do you remember the day of the week?

No.

Did you work that day?

I did.

And was that -- that was at Hanson's? Correct.

Okay. Who did you arrive with?

Heather.

Anybody else? No.

Page 47

1 Q 2

3

4 A 5

6 Q 7 A 8 Q 9 A

10 Q 11 A 12 Q 13 A 14 Q 15 A 16 Q 17 A 18 Q 19 A 20 Q 21 A 22 Q 23

24 A 25 Q

1 A

2 Q 3 A

4 Q 5 A

6 Q 7 A

8

9 Q 10 A

11 Q 12 A

13 Q 14 A

15 Q 16 A

17 Q 18 A

19

20

21 Q 22 A

23 Q 24 A

25 Q


Did you see -- did you and Heather have plans to go there

that evening, or was it just, like, spur-of-the-moment kind

of thing? Spur-of-the-moment stop in and have a steak dinner. It was

a Tuesday night; it was Tuesday night, in fact.

Okay. Is that their steak night? Steak night, yup. That's how I know.

Okay. When had you and Heather made those plans?

When we were driving by.

Okay. Were you in the same car?

Yeah.

Was it a car, not a motorcycle?

It was in a car.

Okay. Where did you park?

In the back.

Okay. Is Chauncey's on Main Street?

Itis.

Just faces Main Street, I presume?

Correct.

And there's parking behind?

Parking behind or out front; yes.

If you park behind, do you have to go around Main Street to

get in a door, or can you enter -- come --

There's a back door; a side door.

There's a side door?

Correct.

What doer did you use?

Side door.

Page 48

Okay. Had you consumed any alcohol before you arrived?

None.

Okay. Were you on any sort of medication?

Just my normal Cymbalta; whatever I take; my normal Cymbalt.j;;d

and my -- that was it at the time, is my Cymbalta, so -- tr1 ~~~~~~ n

t::d Depression and anxiety.

What's the dosage?

60 milligrams a day.

Do you take it in the morning? In the evening.

~ And you had taken it before you arrived; correct?

cr' '-<

Correct.

Okay. Who prescribed it?

Oh, no, I hadn't taken it yet. I don't take it until I go

~ n 0

to bed, so --Dr. Cody-

And you take --- Lawnichak.

Sorry?

Dr. Cody Lawnichak.

What's "Lawnichak"?

>

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1 A That's his last name. 1

2 Q Oh. 2

3 A Cody Lawnichak. 3

4 Q Lawnichak? 4 Q 5 A Yeah. 5

6 Q Okay. But you had taken it the evening before? 6 A

7 A Correct. 7 Q s Q Okay. How long had you been taking Cymbalta? 8 A

9 A I've been taking them for quite a few years. 9

10 Q More than ten? 10 Q 11 A No; probably less than ten. 11

12 Q More than five? 12

13 A Probably about five. 13 A 14 Q Okay. Were you on any other type of prescription medication 14

15 at the time of this incident? 15 Q 16 A No. 16 A 17 Q Okay. What was going on in your life five years ago through 17 Q 18 the date of the incident that caused you to take Cymbalta, 18 A 19 60 milligrams, every evening? 19 Q 20 A Got divorced. 20 A 21 Q But the divorce was final, wasn't it? 21 Q 22 A Yeah. That was a long time -- that was five years ago, 22

23 Q But you were still having problems with the divorce that you 23 A 24 were on Cymbalta? 24 Q 25 A Yeah. 25 A

Page 50

1 Q See, remember earlier I asked you, Mr. Sanders -- I said -- 1 Q 2 I started asking you about those kinds of questions, and 2 A

3 your answer was, "Well, that was all taken care of. I 3 Q 4 wasn't having stress over the divorce, or anxiety." And now 4 A

5 I'm -- 5 Q 6 A I take Cymbalta. 6 A

7 Q -- let me finish -- now I'm hearing about Cymbalta. So 7 Q 8 what -- what's the truth? 8 A

9 A The Cymbalta helps with my back, and my -- my legs, and 9

10 everything else as well, is what -- as far as my pain goes. 10 Q 11 It helps with everything. 11

12 Q But it's a drug for depression and anxiety. 12

13 A And it helps -- it also helps with pain and -- body pains, 13 A

14 and your -- and so on and so forth. So that's why I've been 14

15 taking it. 15 Q 16 Q Okay. But -- but -- but your original answer was "for 16 A

17 depression and anxiety"; right? 17 Q 18 A Well, that's -- yeah, that's -- 18 A

19 Q And that's what I wanted to ask you about. Why did you not 19 Q 20 tell me about that when I was talking to you about your 20 A

21 wife -- the divorce that you were having with your wife and 21 Q 22 you said it was cleared up? Now I'm understanding it's not. 22

23 A How is it not? I've been taking Cymbalta. I take Cymbalta 23

2 4 for -- I started out with that, and now I take it for -- for 24 A

25 the pain from my knees and stuff; for my arthritis and 25

Page 51

~:~~~!!~~!!:¥ 800-632-2720


everything. That's what I -- because I quit taking it, and

then the pain comes back, so I -- that's what I use it for

now, so --So you don't use the Cymbalta for anxiety and depression; is

that what I'm hearing now?

Correct.

And that's your statement under oath?

That's what I'm using it for, is for my pain for my legs and

my -- for my lower back and my knees.

Are you using any other medication for your lower back,

knees, shoulder, neck; any other part of your body, sir;

other than Cymbalta?

Now they've got me on all kinds of -- they've got me on

Lyrica --

What are you taking that for?

Nerve damage.

Where?

In my neck.

Do you know what level; what level in your neck?

What do you mean, "what level"?

Well, there's different levels. There's Cervical 1,

Cervical 2, there's --

I -- I couldn't --If you don't know, just say you don't know.

I don't know.

Page 52

What other medications?

I am on Topamax for --

What's that for?

For the headaches. High blood pressure pills.

Okay. What else?

What is that? Lyrica, or --

You said that. ~ For cholesterol; that one for cholesterol. I've got high

cholesterol. I think that's about it. (') Okay. The high blood pressure and the cholesterol trJ

medications that you're on, you were on those before this ~ Incident, weren't you? trJ No. I just started those -- my doctor just put me on thosC

not too long ago. CT" That was your last physical? '< That's what he was checking on; yes, correct. ~ What's your height, sir? (') 51 sn. 0 How about your weight? > I couldn't -- about 200 pounds.

l--' Have any of your medical people ever told you that you

-----N should lose weight, and that would improve your low back or \.0 your knees? -----N I've been losing -- yeah, that's what -- I was at 217, and 0

I'm down -- I don't even know what I'm at right now, but~

Page 53

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1 was at 217, and at my next appointment I was supposed to

2 lose up to 25 pounds, so --

3 Q Okay. Have you found with the weight that you lose that

4 your knees and your low back improve?

5 A No, not really. I was hoping.

6 Q Topamax, you were -- were you on Topamax before this 7 incident?

8 A No.

9 Q How about Lyrica?

10 A No.

11 Q Okay. The one you can tell me about is Cymbalta?

12 A Cymbalta.

13 Q Okay. Do you consume alcohol?

14 A Not very often.

15 Q How olten do you do it?

16 A Maybe once or twice a month.

1 7 Q Were your parents divorced?

18 A Yes.

19 Q Did you suffer from any kind of depression and anxiety over

20 that?

21 A I'm sure I did when I was a kid, because it happened when I

22 was s. 23 Q Were you treated for that?

24 A No.

25 Q Have you ever complained to any medical professional that

Page 54

1 you experienced depression and anxiety over that, and a

2 sense of abandonment from your parents?

3 A No.

4 Q Have you ever told any medical professional that you felt

5 responsible for your parents' divorce?

6 A No.

7 Q Okay. When you do consume alcohol, sir, what do you drink?

8 A Just beer.

9 Q What kind?

10 A Busch.

11 Q Do you know the owner of Chauncey's Pub? 12 A I do.

13 Q Who is it?

14 A Dan Painter.

15 Q Dan Painter? 16 A Yes.

17 Q Are you and Mr. Painter friends?

18 A We're acquaintances.

19 Q How was your relationship before this incident?

20 A About the same. We never -- it's not like we hung out and

21 we were buddies or anything.

22 Q Okay. When you and Heather arrived at Chauncey's at the

23 time of this incident where did you sit?

2 4 A By the front door.

25 Q Was it just a table for two?

Page 55


1 A Actually, it was a table for three. We sat with my boss,

2 Ivan Hanson.

3 Q He was there?

4 A He was there.

5 Q Was he sitting by himself, and then you joined?

6 A Idid.

7 Q Okay. Heather as well?

8 A Correct.

9 Q Okay. And did you say -- what time did you arrive? Did you

10 say it was 6:00'ish?

11 A Oh, 6:30, 7:00'ish; somewhere in there. It was around

12 dinnertime, so --

13 Q All right. Did you have dinner there?

14 A Wedid.

15 Q Did you consume alcohol there?

16 A No, I did not.

1 7 Q Did Heather consume alcohol?

18 A No.

19 Q Was Michelle there?

20 A Shewas.

21 Q Was Michelle working?

22 A I don't believe she was at the time.

23 Q Where did she work at the time?

24 A I don't know if she worked there, or she was working at

25 the -- the noodle factory there.

Page 56

1 Q Okay. Meaning you don't know if she was working at

2 Chauncey's, or the noodle factory?

3 A I don't remember at the time, no.

4 Q All right.

5 A I don't recall.

6 Q Was Michelle there when you arrived?

7 A Shewas.

8 Q Did she come up to the table?

9 A I don't remember. I don't recall. I don't recall.

10 Q All right. You have seen -- have you seen pictures or

11 photographs of Mr. Pierce and Mr. Spohn?

12 A No, I have not.

13 Q To this day?

A Q

No.

Can you describe them?

14

15

16

17

18

19

20

21

22

23

24

25

A Q

No. ~ So they could walk in and you would have no idea it was ()

th~ 0 A I wouldn't have a clue. >,-Q Okay. So towards the -- at some point in the evening yolJ_.

A Q

A

were involved in an altercation with at least one of these N people; correct? \,0

~IT~ N Did you get a look at this person? 0 Not at all. ~

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1 Q Not at all?

2 A Not at all.

3 Q All right. So you can't tell me, sir, during your patronage

4 of Chauncey's whether Mr. Spohn or Mr. Pierce were in

5 Chauncey's, or whatever they were doing, or their

6 activities; correct?

7 A They--

a Q From your own personal knowledge.

9 A No. They were there. I remember them being there, but I

10 couldn't pick them out of a crowd. I mean, it's been so

11 long, and their faces -- I mean, I couldn't pick them out --

12 I couldn't pick them out if they were here. They were

13 there --

14 Q How did you know --

15 A They were there for a split-second. When we walked -- when

16 we got there they were being -- they were being asked to

17 leave.

18 Q Well, let me ask you this now: So how did you make the

19 connection that the people that-- or at least one of the

20 people you were involved with outside were people that were

21 previously at Chauncey's?

22 A When I went outside to smoke a cigarette -- at the time I

23 used to smoke -- I went outside to smoke a cigarette, and

24 the -- the bigger guy -- I don't know which one is who --

25 but he kicked me in the chest.

Page 58

1

2

3

4

5

6

And then I went back into the bar and came back

out, because he was headed towards -- Mr. Hanson was on the

other side of the street with his back towards -- turned

towards tl)e bar, on his phone, and he was headed towards

him.

And I went back out to yell at Ivan, and I stepped

7 out in front of a car that was parked there, and as soon as

B I stepped out that kid -- whoever the other kid was, took me

9 off my feet from the side, and I don't remember anything

10 after that, so --

11 Q Well, the tall guy that you saw --

12 A Correct.

13 Q -- okay -- did you see -- when you first saw him -- and he's

14 the guy that kicked you in the chest; correct?

15 A Correct.

16 Q When you saw him did you make the connection of seeing him

17 earlier in the bar?

18 A Okay. Yes; yes.

19 Q That's what I'm asking.

20 A Yes. Okay.

21 Q Okay. You didn't pay any particular attention to him in the

22 bar, did you?

23 A No. Because they were leaving at the time that we arrived.

24 Q Okay. So as you're walking in the side door is the taller

25 guy and the shorter guy leaving Chauncey's?

Page 59


1 A We were sitting down at the time, and they were at the bar,

2 and they were giving Deena; the bartender; a hard time, and

3 she asked them to leave.

4 Q Okay. And did they leave?

5 A After a minutes, yes, they left.

6 Q A few minutes?

7 A Yeah.

B Q Okay. But prior to that -- prior to you seeing them at the

9 bar; at the drink bar; --


11 Q -- you had no idea who they were; correct?

12 A No.

13 Q And you didn't see them eat; correct?

14 A No.

15 Q And you didn't see them consume any alcohol; correct?

16 A Correct.

1 7 Q Am I right?

18 A Correct.

19 Q Okay. All you saw of them was in some kind of discussion

2 o with -- is her name Deena?

21 A Deena.

22 Q Okay. Deena what?

23 A Deena Walsh.

24 Q Walsh?

25 A Yes.

Page 60

1 Q Describe Deena.

2 A Oh, I don't know. She's about 5 foot -- 5 foot, 5.

3 Q Dark hair?

4 A Dark hair, yeah.

5 Q All right. So they leave?

6 A Correct.

7 Q Do they walk out the front, or the side?

B A I believe they walked out the front.

9 Q Okay. Do you know which -- the name of the tall guy?

10 A No, I don't.

11 Q Do you know the name of the shorter guy?

12 A I don't know the name of either of them, so --

13 Q Okay.

14

15

16

17

18

19

20

21

22

23

24

25

A I know one is Zachary, and one's -- I don't know what the:::Y'

other one is. All I know is one is Zachary, so -- '< Q Okay; okay. ~ A -- that's all I know. And I know that one of them lives in ('.)

the town that I live in, and I -- I -- to this day I could Q walk by him in the store and I couldn't tell you who he is, > so --

Q All right. But you remember --

A But it doesn't really matter to me, so --

Q Well, you know you're suing these individuals?

A I understand that, but I don't, you know -

Q But you understand you're suing them?

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1 A Yes. 1

2 Q Okay. Did you hear what the conversation was between Deena 2 A

3 and the two people; two guys? Did you hear the 3 Q

4 conversation? 4

5 A She was just asking them to leave. They were -- they were 5 A

6 very -- they were very belligerent, speaking with -- you 6 Q 7 know, swearing quite often, calling her -- 7

8 Q Both of them? 8 A

9 A -- both of them -- caller her, you know -- 9

1 o Q What were they saying? Just say it, if you know. It's 10

11 okay. 11 Q 12 A I don't even remember what they calling her. A bitch, 12 A

13 and -- you know, and all that shit, and telling her that 13 Q 14 she -- they weren't leaving. And -- and finally they just 14 A

15 ended up leaving, so -- 15 Q 16 Q Okay. 16 A

17 A They were pretty rude. I mean -- 17 Q

18 Q Did you assist Deena at all? 18 A

19 A No, I did not. 19 Q 2 o Q Did you stay seated? 20 A

21 A I stayed seated, yeah. 21 Q 2 2 Q Did anyone assist Deena at all? 22 A

23 A I don't know if Dan came out of the back, or not, so -- 23 Q

24 Q Okay. And when they left did they go out the front? 24 A

25 A They went out the front. 25 Q

Page 62

1 Q Did you see either one of those people again until the time 1 A

2 the big guy kicked you in the chest? 2 Q

3 A No, I did not. 3 A

4 Q So whatever their activities were after they left you can't 4 Q 5 help me with? 5 A

6 A No. 6 Q 7 Q Have you spoken to anybody, sir, who can fill in for you 7 A

8 what their activities were after they left Chauncey's? 8 Q

9 A Well, I know the bartender from the Tumbleweed was -- 9 A

10 Q Who was that? 10 Q 11 A Mike Solonika. 11

12 Q Okay. 12 A

13 A Otherwise known as "Boots." And I know that he said that 13 Q

14 they were there, so -- that's all I know, so -- 14 A

15 Q Did anyone else talk to you? 15

16 A No. 16 Q

17 Q Okay. Did you ever ask Michelle what it is she knew about 17 A

18 the incident? 18 Q

19 A Not really. She -- her and my wife talk, but I don't -- you 19 A

20 know what I mean? They know -- they talk amongst themselves 20

21 about all this stuff, so I don't -- 21 Q

22 Q But did you? 22

23 A No. 23 A

24 Q Okay. Have you ever heard Michelle talk about the incident, 24 Q

25 or see anything that Michelle may have written in Facebook 25 A

Page 63

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or handwriting about the incident and what she knew?

No.

How much time expired, sir, before you go out to smoke your

cigarette?

(No verbal response)

Let me ask you this, than: From the time they left how much

time expires before you go out to smoke your cigarette?

God, I think we -- we had gotten dinner, so it had -- we had

eaten dinner, so it had to have been at least a half hour or

so, 45 minutes maybe.

Did you go out the front?

I went out the front, yes.

Did you go by yourself?

I went out with Frog, which is Jeff Solonika.

Jeff Solonika?

Yes.

Is that related -- a relation to Mike?

Yeah. It's his brother.

Okay. Was Jeff a patron?

He was -- I believe Jeff was working that night at the bar.

Which bar?

At Chauncey's.

Was he on break, than, or -

Yeah.

Okay. Did you go out with anyone else other than Jeff?

Page 64

No.

Okay. Are you standing on the sidewalk?

Correct.

Okay. That's public property?

Yes. Out in front of Chauncey's.

Was It pretty slow in Chauncey's on this day?

Yeah, it seemed to be pretty slow.

Okay. It was a Tuesday night in December.

Yeah.

Okay. How long are you outside before this taller gentleman

punches -- or kicks you in the chest?

God, we weren't even out there maybe three minutes.

Okay.

And he come walking down the sidewalk, and he -- he thoughtr

that I was Dan Painter, the bar owner.

Do you and Dan resemble one another?

A little bit, yeah.

How?

I guess the bald head, and the -- the glasses, and the -- I

don't know -- same build.

Okay. All right. But you're just standing there smoking a

cigarette?

Right; yeah.

Okay. Does he -- are you facing Main Street?

Yes,Iam.

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1

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21

22

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Q What direction does he come -- if you're facing Main Street,

does he come from your right, or left?

A He was coming from the left, from The Tumbleweed; -

Q Okay. Did you see --

A -- from that direction.

Q From that direction?

A Correct.

Q Okay. You never actually saw him in The Tumbleweed?

A No.

Q Okay. And describe his demeanor as he's walking towards

you.

A He was very angry.

Q How do you know that?

A He was -- he was just very -- talking very angry, and he was

asking if I was Dan Painter, and if I was the bar owner, and

blah, blah, blah, and he was going to kick my butt, and so

on and so forth. And the next thing I know he kicked me

right in the chest.

Q Did he ever break stride?

A No. That's the sad thing about it. That's how big he was.

I don't -- I don't know if you guys have met this guy, or

not.

Q I have no idea who he is.

A He's -- he's a big guy.

Q So he never broke stride, he just continued -- he talks --

Page 66

1 you can tell he's angry by what he's saying --

2 A I'm walking backwards with Jeff; we're walking backwards

3 towards the door, and he just walks towards me and just

4 straight up --

5 Q Well, here's what I want to know; here's what I want to

6 know, sir: Does the tall guy ever stop walking before he

7 kicks you?

8 A Not that I recall, no.

9 Q So he's just right -- right in motion?

10 A Yeah. He kicked me and sent me back sailing backwards, and

11 then he went around and headed towards -- you know, walked

12 around the back side of the vehicle that was parked there.

13 Q Okay. What kind of vehicle was it?

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A I believe it was a Jeep.

Q Okay.

A Because it got beat up pretty bad.

Q What foot did he kick you with?

A I don't remember.

Q Describe the kick as best you can.

A Just a straight kick right to my chest.

Q With the bottom of his foot?

A Yes.

Q Okay. Did he jump in the air?

A No.

Q Did it knock you down?

Page 67

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A It knocked me back a few feet.

Q But did it knock you down?

A No.

Q Okay. Who was outside with you at the time?

A Jeff.

Q Now, where was Ivan?

A Ivan was still inside at the time, and he was just coming

outside.

Q Did Ivan see it, to your knowledge?

A I don't believe so. I don't know.

Q Okay. What did you do after this guy did that to you?

A I went back inside and told my wife to call 9-1-1 because I

had just been assaulted. And then I turned around and he

was headed -- beef-feeting it towards Ivan, which had his

back -- by then Ivan had crossed the road and he was on the

other side of the road.

Q You said -- was he running towards Ivan?

A He was at a fast-pace walk, yeah.

Q Okay. How long were you inside?

A A split-second.

Q Okay. And told Heather to call 9-1-1?

A Yup.

Q Okay. What physical -- how did the kick physically affect

you? What did it do?

A It knocked the wind out of me.

Page 68

Q Okay. Did it do anything else?

A No.

Q You didn't fall down?

A No.

Q Did you bang into anything?

A No.

Q Why didn't you just stay in Chauncey's once you went back

in?

A Because, I told you, he was headed towards Ivan, and I

didn't want to see Ivan get -- the guy was huge.

Q But you weren't aware of any kind of animosity between he

and Ivan, were you?

§ 0

~ A No. But he was headed towards Ivan. He was -- the guy waO

angry.

Q Does Ivan resemble Dan Painter?

A No.

Q Okay.

A Notatall.

Q Well, do you have any understanding of why this guy did that

to you?

A No.

Q You thought because you looked like Dan?

A Just because I thought -- well, he's the one that told me I

looked like Dan. He thought I was Dan. He was -- you

know --

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1 Q Okay. All right. But, other than that, you don't have any

2 explanation for why he did it?

3 A No.

4 Q You had never seen him before, and --

5 A Never.

6 Q Have you ever seen him since?

7 A No.

8 Q Okay. How long are you outside before the other gentleman

9 comes to you?

10 A Probably -- maybe a minute. Because I just stepped outside

11 and stepped in front of the vehicle, and -- and then I was

12 taken off my feet.

13 Q Are you just standing there?

14 A Yeah, I was just --yeah.

15 Q Were there other people outside with you?

16 A I don't know if -- no, I don't think so. I think Frog was

17 the only one there -- that would have been Jeff -- would

18 have been the only one standing out there with me.

19 Q Were there five or six other guys out there?

20 A Afterwards.

21 Q No. Before this?

22 A No, not that I'm aware of.

23 Q Okay. All right. Well, you would know that, wouldn't you,

24 sir?

25 A I would think so, yeah. There wasn't nobody out there.

Page 70

1 Q So at the time -- I want to understand this, sir. At the

2 time the shorter gentleman comes to you and takes you off

3 your feet you're outside, Jeff is outside, Ivan, and this

4 other tall guy?


6 Q Four people?

7 A Yup.

8 Q Is there anyone else?

9 A Not that I recall.

10 Q Where is Ivan and this tall guy in relationship to you;

11 where are they?

12 A Ivan is on the other side of the road on the curb. The

13 taller gentleman is in between Ivan and me.

14 Q How far would the taller gentleman be from you?

15 A Probably from me to you away.

16 Q Eight feet?

17 A Yeah, eight feet.

18 Q Do you have any other physical contact with the taller

19 gentleman that night?

20 A Not -- just from what I hear, that his boot's in my head.

21 Then the other --

22 Q Not -- I want to know what you know.

23 A Not that I recall, no.

2 4 Q Nothing that you know?

25 A I don't know. Because once I was taken off my feet I don't

Page 71


1 remember nothing.

2 Q Okay. So what you've heard Is something else. Do you have

3 any specific recollection, sir, of any other physical

4 contact with the tall gentleman?

5 A No.

6 Q Okay. Now, you say you were taken off your feet?

7 A Correct.

B Q Okay. Were you on the sidewalk in front of Chauncey's when

9 that happened?

10 A No. I was in the road.

11 Q Middle of the street?

12 A Yup. I was on the edge of the road, yup.

13 Q Was it the edge, or middle? Where were you?

14 A On the edge.

15 Q Okay. What direction does Main Street run?

16 A North and south.

1 7 Q Were you on the east side, or were you on the west side, of

18 the main street?

19 A East side.

20 Q Okay. Is the east side the side that Chauncey's is on?

21 A No; the west side. Chauncey's would be on the west side.

22 Q Chauncey's is on the west side?

23 A Yeah. I was on the west side. Sorry.

24 Q So you crossed over -- okay.

25 A I just stepped out into the road and yelled at Ivan is all I

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Page 72

did.

Q Were you on the -- here's what I want to ask you, sir? Were

you on the same side -

A As Chauncey's.

Q -- of the street as Chauncey's?

A Correct.

Q Okay. And you stepped out in the road and yelled what?

A I yelled at Ivan to turn around.

Q And what happened then?

A I don't remember.

~ n ~

Q Did you see Ivan turn around? < A Nope. I don't remember if Ivan turned around, or what h~

did, so --

Q Did you see the tall guy involved in any physical

altercations with anyone else?

A Not that I'm aware of, no.

Q Did you ever talk to Ivan about this incident?

A No. I haven't talked to him, no.

Q Why not?

A I don't know.

Q Is there any reason why?

A No. I just never have talked to him about it, I guess.

Q Have you ever talked to Jeff about the incident?

A Just what had happened, and that's about it.

tJ

25 Q Did you ever ask Jeff-- so how do you say his last name?

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1 A Solonika.

2 Q Solonika. Did you ever ask Jeff to fill you in on things

3 you didn't remember or didn't know?

4 A Oh, I tried to get everybody -- I even tried to get the

5 video to see what happened, and nobody will give me the

6 video or nothing, so I don't -- you know, I --

7 Q All right. But let me ask about -- I want to know

8 specifically who you spoke to. Did you talk to Jeff about

9 it?

10 A Yes, I've spoken to Jeff about --

11 Q What did he tell you?

12 A Just what had happened, just what he had seen, that, you

13 know, I was taken off my feet and the other kid was punching

14 me in the head and I was trying my best to get him off me, I

15 guess. I don't recall, but --

16 And that the big guy was kicking me in the head,

17 and in the back, and in my back of my neck, and stomping on

18 my back, and --

19 Q Were you on the ground at this time?

20 A I believe, yes.

21 Q You heard this from Jeff, and who else?

22 A Mywife.

23 Q Heather?


2 5 Q Anybody else?

Page 74

1 A Michelle, people that were standing inside the bar, I guess.

2 That was about --

3 Q What other people?

4 A That's about all I really talked to about it. I haven't

5 talked to nobody else about it.

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Q So you've spoken to Jeff, Heather, and Michelle?

A Yeah.

Q Anybody else?

A Not really, no.

Q All right. Did you see the guy coming towards you when he

took you off your feet?

A The one that -- no. I didn't -- no, I didn't see him at

all. That's the thing. I didn't even --

Q You don't know where he came from?

A Didn't even -- no. I had no clue that he was anywhere near

us.

Q How did he do it?

A I have no idea.

Q So you don't even know how -- what side he came from?

A He came from the Tumbleweed.

Q From that direction?

A From that direction; correct.

Q Would that be -- did he come from behind you, than, or to

your side?

A From my side. I was standing sideways.

Page 75


1 Q Which side did he --

2 A I was standing facing -- I was facing Ivan, which would have

3 been facing the -- facing the bank. Straight across the

4 road I was facing.

5 Q Did the guy come to you from your left side, or your right

6 side?

7 A My left side.

8 Q Did he tackle you?

9 A I don't know if he tackled me, or punched me in mid-air and

10 took me down, or how he went. But I -- all I know is I went

11 down and I had one hell of a black eye and --

12 Q Which eye?

13 A This eye; my left eye.

14 Q Do you know if that occurred from being taken down, or from

15 being kicked or stomped while you were already down?

16 A I don't have no idea.

17 Q Okay.

18 A I have no idea.

19 Q So the last thing you remember, sir, is being knocked to the

20 ground; correct?

21 A Correct.

22 Q Do you recall if you hit your head on the ground when you

23 were knocked to the ground, or not?

24 A I couldn't recall if I -- I couldn't tell you if I did, or

25 didn't.

Page 76

1 Q Okay. And what's the next thing you recall after that?

2 A People all over the place picking me up off the ground, and

3 then I'm going into the bar and they're putting ice on my

4 face.

5 Q Okay. Who helped you off the ground? 6

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A I couldn't even tell you at this point in time who it was.

Q Okay. And you've never talked -- you've never really spoken

to Michelle about what it is she knows about this incident,

or who these guys are, or what they were doing; is that

correct?

A Not really, no.

Q Okay. Have you ever spoken to Mike Solonika about it?

A I tried to, but he didn't -- he didn't really want to talk

about it, so --

Q Okay. Do you know who owns Tumbleweed?

A Jim; Jimmer.

Q Have you talked to Jim about it?

A No, I haven't talked to Jim about it at all.

Q Okay. How long were you in the bar before you went to the

hospital?

A Maybe 20 minutes.

Q Did you consume any alcohol before you left for the

hospital?

A No, I did not.

Q So you didn't have any alcohol that entire evening; correct?

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1 A No.

2 Q I mean, that's correct; you did not?

3 A None; none; no.

4 Q Okay. When did you -- did you talk to the police that

5 evening?

6 A No. Actually, I spoke to them the next day.

7 Q Did they contact you?

8 A I contacted them. Oh, I just happened to see one of the

9 sheriff's deputies and I stopped and talked to him.

10 Q Okay.

11 A And he took pictures and took my statement at that time.

12 Q Okay.

13 A He was going -- coming to see me, but I caught him before he

14 got to my house, so --

15 Q All right. To your knowledge, were there any arrests made

16 for this specific incident, sir, where you were assaulted?

17 A Not to my knowledge that I know of, no.

18 Q Were you ever subpoenaed to go to any court hearings over

19 this incident?

20 A Not so far, no.

21 Q Okay.

22 MR. EWING: All right, sir -- I'll pass the

23 witness -- I appreciate your time.

24 THE WITNESS: No problem.

25 MR. KING: Hi. I'm Dan King. Again, I represent

Page 78

1 Dan Painter and Chauncey's.

2 THE WITNESS: Uh-huh (affirmative).

3 EXAMINATION

4 BY MR. KING:

5 Q As I understand it, you were coming in as they were being

6 kicked out; correct?

7 A Correct.

8 Q You never saw them served any alcohol; correct?

9 A I didn't see nothing, no.

10 Q All right. And then you had dinner?

11 A Wedid.

12 Q Okay. So you sat down and you ordered -- what did you have;

13 the steak dinner whlle you were there?

14 A Correct.

15 Q Okay. And after you finished dinner you were going to go

16 out for a smoke with Jeff?

17 A Correct.

18 Q And that's when the first contact came with these two

19 individuals?

20 A Exactly, yes.

21 Q All right. And, now, when you were there do you recall Dan

22 Painter coming out at all to help you?

23 A No; not until later on. I remember him being out there

24 after all the incident went down. After everything went

25 down and everything I remember Dan being outside after that.

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But I didn't see Dan in the bar prior to that, no.

You understand Dan went out and went after this big guy -

I do.

-- and pulled him off?

I do, yes. Yes, I heard that afterwards, yes.

Is there anything you think Dan Painter should have done in

terms of preventing this?

I don't -- I don't know. You know, I -

Well, he went out to help you; right?

Correct, he came out.

And you filed this lawsuit against him?

Yeah.

Okay. Do you know what your claim Is against Dan Painter?

No, I don't.

Now, you have one child with Michelle?

Three.

Oh, you have one with Michelle -- one of them is with

Michelle, or all three are with Michelle?

Two of them are grown up, but, no, I've got one at home

still between the two of us.

Okay.

Yeah.

And the two that are grown up, those were with Michelle as

well? You had --

Yes.

Page 80

-- three children with Michelle?

Yes; all together, yes. Three all together with Michelle,

yes.

And how old are they?

22, 21, and 15.

Okay. And the 15-year-old lives with Michelle?

And me. We have 50/50 custody.

Okay. Do you pay any type of child support?

Yes,Ido.

How much do you pay in child support?

$23 a month.

All right. Now, in terms of the physical therapy you had;

the four sessions; who was that with?

The therapist was right there at Alpena -- or In Hillman, a" the new -- I'm not sure of the name of the new therapy pla~

~oon ~ Okay. (J It's used to be the Knights of Columbus Hall there. Q But the name of the physical therapist? > I don't remember her name, no.

Do you have any record of that at home?

I don't know if I do, or not.

Has anyone suggested that at this time physical therapy

might help you?

I have not -- the doctors haven't said anything, no.

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1 Q Okay. Now, when you worked at the power company and you

2 claimed the Disability back in 2012 what was -- what was it

3 that caused the disability to you? Was it just every-day

4 work, or did you have any type of injury?

5 A Just every-day work, I guess.

6 Q Okay. And what sort of work did you do that put stress on

7 your back and knees?

8 A I used to be a plumber for 15 years. I did that, and then I

9 drove heavy equipment for eight.

10 Q And at the power plant what sort of plumbing did you do?

11 A I didn't do any plumbing in the power plant. I just ran

12 heavy equipment.

13 Q Okay. And what was it about running heavy equipment that

14 caused you to have an injury to your back and knees?

15 A Just jarring around and sitting all day.

16 Q Okay. And as a plumber -- do you have a plumbing license?

1 7 A No, I do not.

18 Q Do you do any plumbing now, other than your house?

19 A No.

20 Q Have you -- outside of going out to Colorado to work

21 there -- what city was that in in Colorado?

22 A Greeley.

23 Q Okay. And Greeley is outside of Denver?

24 A Yes.

25 Q Outside of that have you done, or applied, for any other

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type of work?

No, I haven't.

Page 82

Okay. Now, you last worked before that for Ivan?

Correct.

And did you tell Ivan why you were leaving; why you couldn't

work for him anymore?

Pretty much, yeah. I just let him know that I couldn't --

you know, I wasn't •• I couldn't do the work anymore, so -

And did you indicate to Ivan at ail that you had any other

type of work that you were going to do?

No.

Okay. Have you talked to Ivan at all about maybe doing any

type of work around his apartments now?

No.

You don't feel you can do any of that maintenance work now?

No.

Have you talked to anybody who claims that they saw these

two individuals prior to the time you got there, at

Chauncey's Bar?

Have I talked to anybody prior to •·

Yeah.

No.

All right. You don't have any knowledge as to what they had

to eat or drink at Chauncey's Bar?

Not to my knowledge, no.

Page 83


1 Q All right.

2 MR. KING: I don't have any other questions.

3 MR. BENSINGER: Mr. Sanders, my name is Brad

4 Bensinger. I represent Zach Pierce. Just a few follow-up 5

6

questions.

EXAMINATION

7 BY MR. BENSINGER:

8 Q First, have you ever been involved in any litigation prior

9 to this?

10 A No.

11 Q So this is the first lawsuit you've ever filed?

12 A Yes.

13 Q Okay. Again, you were married to Heather Sanders just under

14 a year ago today?

15 A Yes.

16 Q So at the time of this incident on December 2, 2014, you

17 were not married; correct?

18 A Correct.

19 Q Okay. You indicated that you went out to have a smoke, you

20 were kicked, went back in. And did you say Ivan was

21 outside?

22 A Correct.

23 Q When did Ivan go outside?

24 A He passed me when I was going in.

25 Q Would Ivan have been in a position to see you being tackled

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2 A 3

4

5 Q 6

7 A 8 Q 9

10 A 11 Q 12

13 A 14 Q 15 A 16

17

18 Q 19 A 20 Q 21 A 22 Q 23

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Page 84

and whatever ensued after that?

He had his back to me, that I know of, so I don't know if he

had turned around and seen it all at that time, or not, so I

couldn't tell you.

From where he was standing, if he turned around, would he

have been able to see you and what was taking place?

Correct.

Okay. If -- Mr. Hanson was interviewed by the police

department following this incident. Were you aware of that?

No.

And If he indicated that you and he exited the bar because

there was word that somebody was hitting a Jeep --

Correct. Yes, there was.

Does that make sense? 0-There was somebody hitting a Jeep. I don't know why he'-<

exited the bar, but I didn't exit -- well, I was out having

a smoke, so --

Okay. Is it possible that he exited the bar with you?

At that time?

(Nodding head in affirmative)

It could have been, yes. It -- it could have been, yes.

Okay. And I'm looking at his statement, and he stated -

Ivan stated that,

"After someone came from the back entrance and

told the bartender that someone was out front possibly

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1 hitting the fence, Ivan and David exited the front door

2 to see what was happening."

3 A I -- I -- I went out with Jeffrey. I don't remember going

4 out with Ivan, so I don't know why Ivan would --

5 Q Okay. Do you have any reason to dispute that if -- well,

6 let me read this to you. "Ivan stated that he then saw

7 Shawn kick David right in the chest."

8 Would he have been out there to see that?

9 A He could have seen it from the window that he was sitting

10 at. Because he was sitting at -- we were sitting right in

11 the front. Do you know what I mean? The big window is

12 right there. Because that's where it happened, right there

13 in front, so --

14 Q Okay. He then states that Zach tackled you to the ground.

15 A Which one is Zach? Would be the one you're representing?

16 Q Correct.

17 A Yes.

18 Q I want you to assume Shawn is the 6 -- the big guy.

19 A Okay.

2 o Q Mine would be the shorter.

21 A Okay.

22 Q That's accurate with your recollection; correct?

23 A Correct.

2 4 Q Following that you have no independent recollection as to

25 whether or not my client; Zach; ever punched or kicked you;

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Page 86

correct?

A Correct.

Q And you would have no reason to dispute Ivan's statement or

what he states as to what happened after you were tackled by

Zach?

A Correct.

Q And you would have no reason to dispute if he stated that

Shawn was doing the kicking and the punching, and not Zach?

A I -- I guess, yeah, than --

Q You have no reason to dispute that?

A No, I don't have no reason, I guess.

Q Okay. It sounds like your wife Heather has some

information, but she was not outside when this took place,

14 was she?

15 A I don't believe so. I think she was right inside the

16 window.

17 Q Okay. So outside, that you recall while the incident was

18 taking place, was Ivan; who was across the street; and

19 this -- and -- did you call him "Frog"?

20 A Yeah. Steve -- or Jeff. Yeah, his name is --

21 Q And his last name again?

22 A Solonika.

23 Q Those were the only two that you recall being out there?

24 A Correct.

25 Q And, again, you've never talked with my client; Zach Pierce;

Page 87


1 since the date of this incident?

2 A No, I have not; not to my knowledge anyway.

3 Q Okay. Prior to this incident had you ever had an MRI, CAT

4 scan, or any other testing relative to your low back?

5 A No.

6 Q So you had had prior low back complaints, but no -- no

7 testing which compared prior to or subsequent to this

8 accident?

9 A None.

10 Q And, again, who treated you for your low back complaints

11 prior to this accident?

12 A Would be Dr. Hillman prior to this.

13 Q Did you seek treatment with anyone else prior to this

14 accident other than Dr. Hillman for your low back?

15 A No.

16 Q And, again, you stated as a result of this you've had low

1 7 back as well as neck complaints; correct?

18 A Correct.

19 Q Any other complaints that you are relating to this incident?

20 A Just my headache, and now I wear these glasses. I have

21 glasses now, so --

22 Q And who --

23 A I never had glasses before, so --

24 Q Who prescribed the glasses?

25 A Skiba.

Page 88

Q And when did you begin seeing Dr. Skiba?

A Right after this my vision went very blurry. I couldn't -

couldn't read up close anymore. Everything went blurry.

Q Had you had any eye exams on any regular basis prior to

this?

A Notreally.

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Q Who would you have seen for eye exams prior to this? ~ A The last person I seen would have been at Walmart Eye Exanfd

Center. 10

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Q And you may have already answered this, and I apologize:

Prior to December 2, 2014, when was the last time that you

had treated for a headache?

A Prior to this?

14 Q Correct.

15 A Gosh, I don't even remember.

16 Q Would it be within a couple of months, or would it have been

17 years?

18 A Probably within a -- probably about a year.

19 Q And who would you have treated with for that?

20 A I probably went to the Alpena General Hospital.

21 Q Okay. Relative to neck issues or complaints, when was the

22 last -- or strike that. Had you ever had any neck

23 complaints or treated for neck problems prior to December 2,

24 2014?

25 A None.

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1 Q None?

2 A None.

3 Q Okay. Low back prior to December 2, 2014, who was the last

4 person you had treated with for that, and when was that

5 treatment?

6 A Would have been Dr. Hillman, and I couldn't tell you how 7 long ago it was.

8 Q You've indicated that your back has gotten worse. What were

9 your complaints relative to low back pain prior to December

10 2, 2014?

11 A Just -- well, my back would just get sore. Do you know what

12 I mean? It would just be sore. I mean, but now, since

13 then, my left leg goes numb; I mean, all the time. My back

14 is just constantly throbbing now. You know, my neck is

15 throbbing all the time. I've been -- like I said, I've been

16 to the doctors, and they -- I'm still waiting on to see what

1 7 they can do for me, so --

18 Q And prior to this, relative to low back pain, you've never

19 had any tingling, numbness, or anything like that, going

20 down any extremity?

21 A No. It was just sore; always before it was just a sore

22 back. Do you know what I mean? So --

23 Q Relative to your -- I guess your head injury or your

24 complaints, you indicated that you were seen by Dr. Pintaro?

25 A Pintara; yeah.

Page 90

1 Q Pintara. And Dr. Pintara was a result of a referral from

2 counsel; correct?

3 A Correct.

4 Q Has any of your medical doctors ever referred you to anyone

5 relative to your --

6 A Actually, Dr. Hillman has referred me to -- referred me too.

7 Now that I think about it, he was the one that referred me 8 also to Dr. Pintara.

9 Q So were you --

10 A Because he's the one that got the report back; Dr. Hillman. 11 So --

12 Q Do you know if you were referred there through Hillman

13 through counsel, or was it a direct referral from Hillman?

14 A Through -- I'm not really-- just through the doctors --

15 through going to see the doctor there, so --

16 Q You said your wife is not currently employed?

17 A No.

18 Q When was the last time she was employed?

19 A About a month ago.

20 Q Okay. And, again, I don't mean to beat a dead horse, but

21 just to be clear: Again, you have no independent knowledge

22 as to my client ever punching you or kicking you in the

23 head; correct?

24 A I don't remember any of it, no.

25 MR. BENSINGER: That's all I have. Thank you.

Page 91


1 MS. HODEK: Dave, just a couple questions, and

2 we'll get you out of here.

3 EXAMINATION

4 BY MS. HODEK:

5 Q Can you just describe for us what -- I guess, what's

6 different since this incident for you physically? Just kind

7 of give us a brief summary, anything that you haven't

8 already covered.

9 A Just my -- just my -- my back pain, and my neck pain, and --

10 and so on. My memory is gone. I --you know, I can hardly

11 remember anything anymore. Like I say, my glasses. I've

12 got these glasses now, and I've got to go back and get my

13 eyes -- in fact, I was just in to have an exam. I've got to

14 go get an exam again.

15 Other than that, you know, just a Jot of pain.

16 And I wish I could get rid of it. If I could go back to

1 7 that day and not go into that bar, I would; I mean, to be

18 honest with you all. I mean, so -- I mean --

19 Q What would you say in your life has changed; not for you

2 o physically, but what about, like, your activities of daily

21 living; what's changed?

22 A Well, I don't -- you know, I don't go to work anymore. I --

23 you know, and !just kind of hang out at home anymore. I

24 don't really go nowhere, do nothing. I don't know.

2 5 Q What specifically could you do before this incident that you

Page 92

1 can't do now?

2 A I could still do all kinds of crawling into crawl spaces and 3

4

do work, and do all kinds of other things. And now I can't

stand on my feet for very long, and -- just like sitting

5 here, my back is just throbbing right now, but, you know --

6 Q Okay.

7 MS. HODEK: I think we're all set.

8 MR. KING: Do you have anything?

9 MR. EWING: Yeah, I do.

10 EXAMINATION

11 BY MR. EWING:

12 Q Mr. Sanders, you know, you told counsel that you can hardly

13 remember anything anymore; right?

14 A (No verbal response)

15 Q That's what you just told your lawyer?

16 A Yes.

17 Q How is it that you can remember the details of that incident

18 that night?

19 A I don't know.

2 o Q Isn't that amazing?

21 A Yeah.

22 MR. EWING: No more questions.

23 MR. KING: I don't have any questions.

2 4 MR. BENSINGER: Quick follow-up on Plaintiffs

2 s counsel's questions.

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1 EXAMINATION

2 BY MR. BENSINGER:

3 Q Relative to hobbies, I'm assuming you rode a motorcycle and

4 had a Harley prior to this?

5 A Right.

6 Q And you've been able to ride it since?


8 Q Correct?

9 A 10 Q 11 A 12 Q 13

14 A 15

16

17 Q 18 A 19

20 Q 21

22 A 23 Q 24 A 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Yes.

Thank you.

"Yes."

Did you have any other hobbies prior to this? Did you hunt,

did you fish, did you bowl, did you golf?

I always hunted and fished. I haven't been -- I haven't

even fished at all this year or nothing. I haven't been out

to do nothing, so --

What do you mean --

I just don't have the -- I don't know. I just haven't had

the ambition to go out and do anything anymore, so --

And that was going to be my question: Physically you could

go fish if you wanted to?

I imagine, yeah, I could,

But you just haven't gone?

Just haven't -- just don't go around people anymore. I just

don't -- I stay at home most of the time anymore, so --

Page 94

Q Okay. MR. BENSINGER: Thank you. MR. EWING: Thank you, sir. (Deposition concluded at 2:35 p.m.)

-0-0-0-

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SANDERS v. SPOHN, ET AL DEPOSITION OF DAVID R. SANDERS

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APPENDIX I

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Notice Letter from Plaintiff's Current Counsel

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VIA CERTIFIED MAIL Tumbleweed Saloon, Inc POBox536 Hillman, MI 497 46

J:t1 · ~'.f .~i '. ;,··.:.~,l.. •. ·~: ··._ \:~;; _.";:!;~: .. ~·:.":·

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RANIERI I HANLEY I HODEK,PLC

November 30, 2015

Re: 'Dram Shop Notice

Dear Mr. Stoddard:

\

·nus office has been retained to pursue a potential action against the Tumbleweei.i Saloon, Inc, arising out of an assault that occurred on December 2, 2014, injuring our client DavidSandefo outside Chauncey's Bar. ·

Mr. Sanders was hi.jured as a result of being assaulted by two men, Shawn Spolm and Zachar.y Pierce. Our client, Heather Sanders, David's wife, has also suffered a loss of consortium as a result of the assault. ·

Our investigation reveals that Mr. Spohn and Mr. Pierce were served alcohol while visibly intoxicated in your pl.ace of business, the Tumbleweed Saloon & Highway Jim, before the assault. Please let this letter serve as ~ request to pi·eserve any audio, visual or other surveillance footage for the day of the incident.

This notice is provided pursuan~ to MCL 436,1801(4) . . ;;

Sincerely; Ranieri Hartley & Hodek, PLC

Matthew T. Hartley

CC: Conifer Insurance Company

.PHONE: (231) 486-6556 'I FAX: (231) 486-6560 I WWW.RHHLAWTC.COM

4020 COPPER VIEW I SUITE 225 I TRAVERSE CITY, Ml 49684

--~------~-~--

APPENDIX J

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Davis v Brite Site, Inc.

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STATE OF MICHIGAN

COURT OF APPEALS

MARGARET DA VIS,

Plaintiff-Appellee,

V

BRITE SITE, INC., a foreign corporation, q/b/a BRITE SITE RETAIL CLEANING SPECIALISTS,

Defendant-Appellant.

Before: Michael J, Kelly, P.J., and Hoekstra and E.A. Quinnell,* JJ

PERCURIAM.

UNPUBLISHED September 20, 1996

No. 187412 LC No. 92-217916NO

Defendant, Brite Site Inc, appeals by right from the judgment upon the arbitration award entered in favor of plaintiff. We affirm.

In July, 1992, plaintiff, Margaret Davis, ftled a complaint in this personal h~my cause of action seeking damages from defendant for injmies she sustained in a slip and fall accident, Scottish Guarantee Insmance Company (Scottish Guarantee) with whom defendant was insured, retained attomey Dennis E. Zacharski to represent defendant in this matter. Eventually, an arbitration agreement was negotiated and executed by plaintiff, Zacharsld, and Scottish Guarantee. The matter was, subsequently, arbitrated in accordance the arbitration agreement, and an arbitration award was rendered in favor of plaintiff. A judgment upon the arbitration award was then entered by the trial comt

Defendant argues that the trial court ened in entering the judgment upon the arbitration award against it because Brite Site was not bound by the arbitration agreement h1 this cause of action. We disagree.

* Circuit judge, sittmg on the Comt of Appeals by assigrunent.

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Because a decision to arbitrate is consensual, a party can not be made to submit a claim to arbitration unless he has agreed to do so. Arrow Overall v Peloquin, 414 Mich 95, 98; 323 NW2d 1 (1982). An arbitration agreement in this matter was executed by plaintiff: her counsel, Zacharsld, and Scottish Guarantee.

Defendant, however, argues that it is not bo1U1d by the agreement, because Zacharski lacked express authority to bind it to the terms of the arbitration agreement with his signatlU'e.1 Defendant's argument lacks merit. Zacharski was hired by Scottish Guarantee to defend its inslU'ed, defendant Brite Site. As a result, an attorneywclient relationship existed bet\veen Zacharski and defendant only. See Atlanta International v Bell, 181 Mich App 272, 274; 448 NW2d 804 (1989), modified 438 Mich 512; 475 NW2d 294 (1992); Michigan Millers v Bronson Plating, 197 Mich App 482, 492; 496 NW2d 864 (1992). Attorneys are recognized as agents acting on behalf of their clients and are govemed in part by the rnles of agency. Fletcher v Schaad Dist Bd of Ed, 323 Mich 343, 358; 35 NW2d 177 (1948); Slocum v Littlefield Bd of Ed, 127 Mich App 183, 194; 383 NW2d 907 (1983). Pursuant to Michigan law, when a client holds his attorney out as cmmsel representing him in a matter, "the client clothes the attorney with apparent authority to settle claims connected with the matter." Nelson v Consumer's Power Co, 198 Mich App 82, 89; 497 NW2d 205 (1993) (Quoting Capital Dredge & Dock Co,p v Detroit, 800 F2d 525 (CA 6, 1986). Thus, although Zacharsld did not have defendant's express authority to bind defendant, he did have the apparent authority to do so. Therefore, defendant was bound by the arbitration agreement which Zacharsld executed.

In the altemative, defendant also argues that the trial comt erred in binding defendant to the arbitration agreement pmsuant to the principle of apparent authority because there was insufficient evidence to determine whether plaintiffs cmmsel knew that Zacharski lacked the actual authority to bind defendant. We disagree. The only evidence which defendant presents to support its contention that plaintiff's counsel knew that Zacharsld lacked the authority to bind defendant are Zacharsld's unsworn statements to defendant> s subsequent cmmsel that Zacharsld did not believe that he was binding defendant and that he believed that plaintiff's cmmsel also understood that to be the case.2 Zacharsld's asse1tions, however, are incredulous in light of the language contained in the arbitration agreement which expressly states that the decision of the arbitrators would "represent a foll and final award as to any liability between Plaintiff and Brite Site Inc."

A:ffinned. Isl Michael J. Kelly Isl Joel P. Hoekstra Isl Edward A. Quinnell

1 Defense cotmsel argued orally before this court that Zacharski represented to Plaintiff's counsel that, in essence, only the inslU'ance company's liability was at stake. Counsel asserted that both plaintiff and Scottish Guarantee contemplated that defendant/appellant Brite Site would not be liable for payment of any arbitration award.. That argument was abandon when the appeal of the courts order of September 16, 1994 was dismissed by stipulation of the pmties October 31, 1994; see Docket# 179287.

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2 To the extent that these statements imply claims of legal malpractice, we disregard them. What counsel for either party knew or should have known was not confronted below.

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