Opinion
360328
03-14-2024
MARSILDA DAKAJ, Personal Representative of the ESTATE OF LEK DAKAJ, and KATRINE DAKAJ, Plaintiff-Appellees, v. SEAN MICHAEL DETERS, DAVID DETERS, WONDERLAND LOUNGE, INC., doing business as WONDERLAND LANES, doing business as MAD HATTER PUB, INC., doing business MAD HATTER GRILL, INC., and RICHARDSON FOODS, INC., doing business as CJ'S BREWING CO., doing business as CJ'S BREWING COMPANY OF COMMERCE TOWNSHIP, doing business as CJ'S BREWING COMPANY, LLC, Defendants, and UPTOWN GRILLE, LLC, Defendant-Appellant.
UNPUBLISHED
Oakland Circuit Court LC No. 2018-170595-NI
Before: O'BRIEN, P.J., and BORRELLO and HOOD, JJ.
PER CURIAM.
Defendant, Uptown Grille, LLC (Uptown Grille or Uptown), appeals by leave granted the order of the trial court denying Uptown's motion for summary disposition related to the notice provision of the Dramshop Act, MCL 436.1801 et seq. Because the trial court's denial was based on factual findings unsupported by competent evidence, we vacate and remand for further proceedings consistent with this opinion.
Dakaj v Deters, unpublished order of the Court of Appeals, entered May 3, 2023 (Docket No. 360328).
I. BACKGROUND
This case originates from a night of excessive drinking at bars in Commerce Township that ended in a fatal drunk-driving incident. On the evening of September 8, 2017, defendant Sean Michael Deters went out drinking with friends. He also drove. The group started drinking at CJ's Brewing Company. Deters did not remember how much he drank there, but it was enough for one of his friends to feel buzzed, and receipts showed that Deters purchased at least three 16-ounce beers. Deters and his friends then went to Wonderland Lanes, which was next door. There, Deters and the group continued to drink. He could not remember how much he drank or how long they stayed there, but one of his friends recalled the group splitting four pitchers of beer, and Deters becoming progressively animated and talkative.
We refer to defendant Richardson Foods, Inc., as CJ's Brewing Company, because that is the business at issue.
We refer to defendant Wonderland Lounge, Inc., as Wonderland Lanes, as that is the business at issue here. Reference to Wonderland Lanes (a bowling alley) also includes reference to the Mad Hatter Pub, a bar inside of the bowling alley.
After leaving Wonderland Lanes, Deters and his friends continued drinking at defendant Uptown Grille. One friend had no memory of this. And throughout the case, Deters wavered on whether he (Deters) drank there. Receipts, however, documented Deters purchasing alcohol at Uptown in four transactions: one gin drink; one gin drink and two shots of flavored whiskey; a tequila shot (and fries); and finally, five shots of tequila. These purchases occurred over the course of one hour.
After Uptown, Deters drove to a friend's apartment planning to spend the night. Sadly, after only 30 minutes, around midnight, Deters decided to drive home. Shortly after midnight, Deters struck and killed Dek Dakaj, who was riding home from work on his moped.
West Bloomfield Police arrived on the scene at 12:42 a.m. on September 9, 2017, possibly 30 minutes after the crash. After several field sobriety tests, including a breath test resulting in .25% blood alcohol content, the responding officer arrested Deters for operating a vehicle while intoxicated. That morning, at 3:59 a.m., the police obtained a search warrant and took Deters's blood. This blood alcohol test resulted in an alcohol content reading of .226%. At 8:20 a.m., Deters took a breath test and still blew .143%. Deters was charged with operating a vehicle while intoxicated and causing death, MCL 257.625(4).
While Deters's criminal case progressed, plaintiffs began pursuing the civil action underlying this appeal. The parties do not dispute that on March 9, 2018, plaintiffs retained their attorneys for purposes of pursuing a dramshop action. Under MCL 436.1801(3) of the Dramshop Act, plaintiffs therefore had until July 9, 2018, to provide notice to Uptown that it might be liable in a dramshop action. There is no dispute plaintiffs did not meet that 120-day deadline with respect to Uptown.
In mid-December 2018, plaintiffs sued Deters, David Deters (Sean's father), Progressive Marathon Insurance Company, Wonderland Lanes, and CJ's Brewing Company. As of the filing of plaintiffs' December 2018 complaint, Uptown Grille's involvement was unknown. Among other claims, plaintiffs raised a claim under the Dramshop Act, alleging that Wonderland Lanes and CJ's Brewing served Deters alcohol when he was visibly intoxicated in violation of the Dramshop Act. They also alleged that as a direct and proximate result of them serving him alcohol, Deters drove his vehicle and struck and killed Dakaj, so those entities were jointly and severally liable.
On May 16, 2018, Deters pleaded no contest to operating a vehicle while intoxicated and causing death in his criminal case. The judge over the criminal case sentenced Deters on August 16, 2018. As of the August 16, 2018 amended judgment of sentence, restitution was still to be determined. On April 12, 2019, the prosecution filed a motion requesting restitution. After a response from Deters's criminal attorneys, the trial court held a hearing on the motion on July 18, 2019. It then entered an amended judgment of sentence on July 19, 2019. Deters had 21 days to appeal the July 19, 2019 amended judgment of sentence, so he had to file his appeal by August 9, 2019. See MCR 7.104. Deters never appealed.
The parties in this case deposed Deters on August 13, 2019, four days after the appeal window closed in his criminal case. At his deposition, Deters revealed for the first time that he drank at Uptown on September 8, 2017. The following exchange took place during Deters's deposition between plaintiffs' attorney and Deters regarding the disclosure of Uptown's involvement:
Plaintiffs' Attorney: Is today the first time you told anybody that you were at Uptown Grill on Friday the 8th?
Defense Counsel: Objection. He may have spoken with counsel. He's got more than one.
Plaintiffs' Attorney: I did say lawyers.
Deters: Yeah. Right. With lawyers. Yes.
Plaintiffs' Attorney: Who else other than your lawyers did you tell before today that you were at Uptown Grill the night of the incident?
Deters: Did I tell?
Plaintiffs' Attorney: Yeah.
Deters: I think I told my parents after the accident happened. They just wanted to know.
* * *
Plaintiffs' Attorney: So other than your parents, and let's be clear, was that both your mom and your dad you told that you were at Uptown Grill?
Deters: I told my mom.
In late August 2019, CJ's Brewing obtained leave of court to file a notice of nonparty at fault, identifying Uptown Grille as potentially "wholly or partially at fault" for plaintiffs' damages. In early September 2019, plaintiffs filed an amended complaint adding Uptown Grille as a defendant. Plaintiffs added allegations to their dramshop claim related to Uptown, including that it served Deters alcohol despite him being a visibly intoxicated person. In early October 2019, Uptown answered plaintiffs' amended complaint. Relevant here, it denied that Deters was visibly intoxicated, that it served him alcohol when he was visibly intoxicated, and that it was liable for plaintiffs' damages. It also expressed its intent to "rely upon the 120 day notice provision of [the] Michigan Dramshop Act."
In early November 2021, Uptown Grille moved for summary disposition under MCR 2.116(C)(10), arguing (1) that plaintiffs could not establish a prima facie dramshop case because they had no evidence showing that Uptown served Deters after he displayed visible signs of intoxication, and (2) that plaintiffs failed to comply with the 120-day notice requirement under MCL 436.1801(3). The first argument is not at issue in this appeal. Regarding the notice requirement, Uptown noted plaintiffs' failure to provide notice to Uptown within 120 days of entering an attorney-client relationship to pursue a dramshop action. Uptown anticipated that plaintiffs would argue they did not know of Uptown's involvement and could not have easily known it within 120 days after entering an attorney-client relationship because Deters did not reveal Uptown's involvement until his August 2019 deposition. It argued, however, that plaintiffs had "ample" time to identify Uptown had they taken "reasonable measures" like immediately filing suit and conducting discovery to determine where Deters drank, or contacting his friends. Anticipating plaintiffs' argument that Deters "may have taken the Fifth Amendment" before resolution of his criminal case, Uptown argued there was no evidence plaintiffs served discovery and were met with Deters asserting his Fifth Amendment right in response, or of any other efforts to obtain discovery from Deters in the 120-day period.
Plaintiffs responded to Uptown Grille's motion for summary disposition, arguing that summary disposition was inappropriate because they could not have reasonably known of Uptown's involvement within the 120-day notice period as there was no indication before Deters's deposition that he drank there the night of the accident. Plaintiffs noted that Deters faced criminal charges and was represented by a criminal defense attorney, and was not available for questioning by plaintiffs' attorneys as a result. And they argued that although Deters pleaded no contest to the criminal charges, he never identified Uptown during the criminal case. Finally, Plaintiffs asserted it was Uptown Grille's burden to establish that plaintiffs knew or could have reasonably found out about Uptown's role in the accident.
Uptown Grille replied, and relying on interpretations of another provision of the Dramshop Act, MCL 436.1801(4) (requiring dramshop plaintiffs to exercise due diligence in identifying and serving the alleged intoxicated person), urged the trial court to find that plaintiffs had to exercise due diligence in determining where Deters drank the night of the fatal accident, and failed to do so. Plaintiffs did not describe their efforts in their response, Uptown argued, and it was insufficient to rely on Deters's failure to mention Uptown Grille in his deposition. Because plaintiffs' attorneys did not do anything in this case for approximately 1% years after being retained, Uptown asserted, this demonstrated that they did not exercise due diligence in determining Uptown's involvement.
In December 2021, the trial court held a hearing on various pending summary-disposition motions, including Uptown's. Uptown reiterated its position that plaintiffs failed to exercise due diligence in identifying Uptown's potential liability. Further, it argued that even if Deters would have asserted his Fifth Amendment rights in this case during the pendency of his criminal case, his ability to do so ended after he was sentenced, but plaintiffs "still waited long beyond 120 days to provide the Uptown Grille with written notice."
At the hearing, plaintiffs emphasized that Deters "never told anyone, not the police, not anyone" other than his mother that he went to Uptown Grille. Plaintiffs' attorney, Timothy Lessing, also asserted that another of plaintiffs' attorneys, Mark Menczer, would "state as an officer of the court" that "he spoke with the defense attorney in the criminal case who said you're not talking to him ever until this case is over." (Menczer never made such a statement on the record.) They also pointed to a fact overlooked by Uptown: though sentencing took place in August 2018, Deters's restitution hearing did not occur until mid-July 2019. Plaintiffs noted that it was not until after the restitution hearing that "the criminal case finally closed." Until that point, plaintiffs argued, Deters was "still subject to a potentially very heavy restitution fine and what he said or didn't say could play into that." According to plaintiffs, the appeal period ended in early August 2019, and plaintiffs deposed Deters shortly after in mid-August 2019. Plaintiffs argued that Uptown failed to identify evidence that Deters revealed Uptown's involvement prior to his deposition.
The trial court denied Uptown's motion as it related to the 120-day notice issue. The court found it "reasonable" for plaintiffs' lawyers "to wait 'til the criminal case was done, especially when [Deters's] criminal attorney is saying you're not gonna have access to our client until [the criminal] case is done." It also found it reasonable to depose Deters "just shortly after the 21-day appeal period after the restitution hearing," and that plaintiffs "did their due diligence in terms of finding out all the information they could from [Deters]." Finding that plaintiffs "didn't learn of Uptown until the deposition was taken," the trial court found that plaintiffs did not "violate[] the 120-day rule." It reiterated that plaintiffs "did their due diligence and filed against [Uptown] as soon as they could after they learned of the drinking" there. The trial court therefore denied the motion "on that basis with respect to the 120-day rule violation." The trial court confirmed that it decided the notice issue as a matter of law. It later entered an order to that effect.
It also denied Uptown's motion as it related to whether there was a prima facie dramshop case specific to whether Uptown served Deters after displaying visible signs of intoxication.
Uptown Grille applied for leave to appeal in this Court, challenging the trial court's ruling on the prima facie dramshop case issue and the notice issue. We denied the application. Dakaj v Deters, unpublished order of the Court of Appeals, entered July 7, 2022 (Docket No. 360328). After Uptown Grille applied for leave to appeal with the Michigan Supreme Court, that Court, in lieu of granting leave to appeal, remanded to this Court to consider only "whether the plaintiffs complied with MCL 436.1801(3)." Dakaj v Deters, 511 Mich. 907 (2023). "Upon reconsideration," we granted Uptown's application for leave to appeal, "limited to whether plaintiffs complied with MCL 436.1801(3) ...." Dakaj v Deters, unpublished order of the Court of Appeals, entered May 3, 2023 (Docket No. 360328).
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). The trial court granted summary disposition under MCR 2.116(C)(10), the subsection under which Uptown filed its motion but the incorrect subrule for purposes of this issue. Confusion seems to stem, at least in part, from courts at times applying MCR 2.116(C)(10) to cases under this statute. See Langrill v Stingers Lounge, 261 Mich.App. 698; 683 N.W.2d 225 (2004), vacated by 471 Mich. 926 (2004). Instead, MCR 2.116(C)(7) is the correct subrule. See Chambers v Midland Country Club, 215 Mich.App. 573, 575; 546 N.W.2d 706 (1996) (affirming summary disposition under MCR 2.116(C)(7) based on the plaintiff's failure to provide timely notice as required under the Dramshop Act). See also Bronson Methodist Hosp v Allstate Ins Co, 286 Mich.App. 219, 222; 779 N.W.2d 304 (2009) (affirming summary disposition under MCR 2.116(C)(7) where the plaintiff failed to comply with the time requirements for bringing a claim). "In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence presented by the parties and accepts the plaintiff's well-pleaded allegations as true, except those contradicted by documentary evidence." McLean v Dearborn, 302 Mich.App. 68, 72-73; 836 N.W.2d 916 (2013). The evidence submitted must be considered in the light most favorable to the nonmoving party. Id. at 73. "If there is no factual dispute, whether a plaintiff's claim is barred under the applicable statute of limitations is a matter of law for the court to determine." Kincaid v Cardwell, 300 Mich.App. 513, 523; 834 N.W.2d 122 (2013).
MCR 2.116(C)(10) was the proper subrule for addressing the argument regarding whether there was a factual dispute that the defendant dramshop entities served Deters when he was visibly intoxicated.
We review questions of statutory interpretation de novo. Wells Fargo Rail Corp v State of Michigan, 344 Mich.App. 351, 358; 1 N.W.2d 373 (2022).
The goal of statutory interpretation is to determine and apply the intent of the Legislature. The first step in determining legislative intent is to examine the specific language of the statute. If the language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. The provisions of a statute must be read in the context of the entire statute to produce a harmonious whole. This Court must consider the object of the statute and the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose. [Yopek v Brighton Airport Ass'n, Inc, 343 Mich.App. 415, 424; 997 N.W.2d 481 (2022) (quotation marks and citations omitted).]
Specific to the notice provision in the Dramshop Act, whether information about a retail licensee's potential liability "was known or reasonably should have been known is a question of fact that we review for clear error." Turnley v Rocky's Teakwood Lounge, Inc, 215 Mich.App. 371, 375-376; 547 N.W.2d 33 (1996). Clear error exists when there is no evidentiary support for the factual findings of the trial court or this Court is left with a definite and firm conviction that the trial court made a mistake. Hill v City of Warren, 276 Mich.App. 299, 308; 740 N.W.2d 706 (2007).
III. 120-DAY NOTICE REQUIREMENT IN THE DRAMSHOP ACT
Uptown Grille argues that plaintiffs could have known about Uptown's involvement in this case within 120 days of retaining their attorney to pursue their claim under the Dramshop Act, MCL 436.1801 et seq. It also asserts that plaintiffs had to present competent evidence of their efforts for determining Uptown's involvement. We agree that there was not competent evidence supporting plaintiffs' claim or underpinning the trial court's fact findings.
Relevant here is the 120-day notice provision in the Dramshop Act, MCL 436.1801(3). That provision provides:
(3) An action under this section must 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 is 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.
There is no dispute that plaintiffs did not give written notice to Uptown Grille within 120 days after entering an attorney-client relationship to pursue their dramshop claim. Plaintiffs entered an attorney-client relationship for that purpose on March 9, 2018. They did not receive notice until September 3, 2019 (though that notice was sent by CJ's Brewing and concurred in by Wonderland). And plaintiffs did not file their amended complaint naming Uptown as a defendant until September 5, 2019. So, there is no dispute that plaintiffs failed to comply with the 120-day notice requirement with respect to Uptown.
The question on appeal is whether Uptown Grille's potential liability was not known and could not reasonably have been known within the 120-day period. See MCL 436.1801(3). It is undisputed that it was not known that Uptown had any involvement in this case until Deters's deposition on August 13, 2019. The critical issue therefore is whether Uptown's involvement could not reasonably have been known within the 120-day period. This necessarily requires establishing by competent evidence the efforts exerted in attempting to determine a dramshop entity's involvement. Plaintiffs failed to present any such evidence below.
In their response to Uptown's dispositive motion, plaintiffs did not attach any evidence demonstrating the efforts they undertook to identify whether Uptown might be liable under the Dramshop Act. They cited the statement of Deter's friend at the accident scene, in which he mentioned only CJ's Brewing Company, as supporting its position that this information was unknown before Deters's August 2019 deposition. But this was essentially the only evidence plaintiffs relied on (other than the "General Factual Background" of their answer to CJ's motion for summary disposition) in their entire response. They also asserted that, "[n]ot surprisingly, Sean Deters was not available for questioning from the lawyers representing the estate of the man he killed" during the pendency of his criminal proceeding. At the hearing on Uptown's motion, plaintiffs' attorney, Lessing, indicated that another of plaintiffs' attorneys, Menczer, was willing to state on the record "as an officer of the court" that "he spoke with the defense attorney in the criminal case who said you're not talking to [Deters] ever until this [criminal] case is over." And on appeal, they reference "countless" requests under the Freedom of Information Act and calls to the police and prosecutor, calls with Deters's criminal defense attorney, and an apparent private investigator they hired. But all of these are either statements or arguments made by plaintiffs' attorneys, which do not constitute evidence. Zantop Int'l Airlines, Inc v Eastern Airlines, 200 Mich.App. 344, 364; 503 N.W.2d 915 (1993). See also Hazle v Ford Motor Co, 464 Mich. 456, 474; 628 N.W.2d 515 (2001) (explaining in case involving motion under MCR 2.116(C)(10) that statements made by the plaintiff's attorney were not an appropriate way to oppose summary disposition). A party may not merely announce a position and leave to this Court to discover and rationalize the basis for his claims or to elaborate the party's arguments for them. Wilson v Taylor, 457 Mich. 232, 243; 577 N.W.2d 100 (1998). This Court will not search the record for factual support for a party's claims. Derderian v Genesys Health Care Sys, 263 Mich.App. 364, 388; 689 N.W.2d 145 (2004). So, these unsupported statements in plaintiffs' response and at the hearing on the summary-disposition motion are not evidence and cannot support plaintiffs' position.Plaintiffs had an opportunity to submit an affidavit from Menczer (their attorney) attesting to any conversations he had with Deters's criminal attorney. And as Uptown points out, plaintiffs also could have submitted discovery requests to Deters; if his criminal attorneys did not want him to answer them or he wanted to assert his Fifth Amendment rights in response, at least plaintiffs could have competent, record evidence demonstrating their efforts at trying to identify all relevant dramshop entities.
They also rely on an email from Deters's civil attorney that was not presented to the trial court below. This is an improper expansion of the appellate record, so we did not consider it when evaluating this issue. See Sherman v Sea Ray Boats, Inc, 251 Mich.App. 41, 56; 649 N.W.2d 783 (2002). Regardless, the email is from April 2019 so it sheds no light on plaintiffs' efforts at attempting to determine Uptown's potential liability before expiration of the 120-day notice deadline in July 2018.
Much of the evidence plaintiffs relied on related to the first aspect of the 120-day notice requirement, whether they knew that Uptown might be liable. It is clear they did not know this. But the ultimate issue is what they reasonably could have known within the 120-day period, and they did not submit any competent evidence supporting their position under this aspect of the notice requirement.
Here, however, plaintiffs failed to present any competent evidence demonstrating what efforts they undertook to identify Uptown. It may be the case that Menczer had these conversations with Deters's criminal attorney, or that Deters would have asserted his Fifth Amendment rights in response to any discovery requests. But for the trial court and this Court to evaluate whether plaintiffs could reasonably have known that Uptown might be a liable dramshop entity within the 120-day period, there must be evidence of plaintiffs' efforts in finding out that information. Statements of plaintiffs' attorney at a motion hearing and unsupported assertions in their response to Uptown's motion for summary disposition do not constitute competent evidence. Zantop Int'l Airlines, Inc, 200 Mich.App. at 364. Because there was no competent evidence demonstrating whether plaintiffs could reasonably have known that Uptown might be liable, the trial court clearly erred by relying solely on counsel's assertions to find otherwise. Turnley, 215 Mich.App. at 375376; Hill, 276 Mich.App. at 308.
Uptown also argues that this Court should apply a due diligence standard to MCL 436.1801(3), similar to the standard applied in cases involving the "name and retain" provision in MCL 436.1801(4). We disagree.
We need not look beyond the plain language of MCL 436.1801(3) for the standard that applies: reasonableness. MCL 436.1801(3) indicates that dismissal is required if a plaintiff fails to provide the proper notice within 120 days of retaining an attorney, 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." This language demonstrates that a party must take reasonable measures to determine whether a dramshop entity might be liable under the Dramshop Act, and we apply the statute as written. McQueer v Perfect Fence Co, 502 Mich. 276, 286; 917 N.W.2d 584 (2018) (instructing that when a statute is clear and unambiguous, courts must apply the statute as written). See also Nickola v MIC Gen Ins Co, 500 Mich. 115, 125; 894 N.W.2d 552 (2017) (explaining that courts should "not read requirements into a statute where none appear in the plain language and the statute is unambiguous.") (quotation marks and citation omitted). Further, the primary cases applying this provision do not read in a due diligence requirement. See Chambers, 215 Mich.App. at 575-577; Lautzenheiser v Jolly Bar &Grille, Inc, 206 Mich.App. 67, 70; 520 N.W.2d 348 (1994). Admittedly, in both of those cases the name or obvious identifiers of the licensee were reasonably available to the plaintiffs and their attorneys, so something less than due diligence was required. See Chambers, 215 Mich.App. at 575-577 (holding that the accident report, "which was available to plaintiff shortly after the accident" and indicated that the driver had been drinking at the defendant country club, was sufficient to indicate that the defendant country club "might be liable"); Lautzenheiser, 206 Mich.App. at 70 (holding that the exception to the 120-day notice requirement did not apply where an investigator for the plaintiffs' counsel interviewed a passenger of the other vehicle involved in the subject car wreck and learned that the occupants including the driver had been drinking at the defendant's establishment just before the accident). But neither case imposed the heightened standard that Uptown urges this Court to adopt. See Chambers, 215 Mich.App. at 575-577; Lautzenheiser, 206 Mich.App. at 70.
Briefly, plaintiffs argue that summary disposition would deprive them of their right to a jury trial. They assert that the jury bears responsibility for determining factual questions like when plaintiffs could have known of Uptown as a possible defendant. But MCL 436.1801(3) is a notice provision, not an element of plaintiffs' claim. Whether plaintiffs complied with the notice requirement, or are subject to its exception, are legal conclusions that are rooted in a series of factual determinations. See Turnley, 215 Mich.App. at 375-376. As indicated above, "[w]hether such information was known or reasonably should have been known is a question of fact that we review for clear error." See id. But it is for the trial court, not the jury, to determine this issue. See id. See also Langrill v Stingers Lounge, 471 Mich. 926 (2004) (remanding for the trial court to make factual findings and legal conclusions). This makes sense in the context of MCL 436.1801(3); the point of the notice provision is to dismiss an action before it even makes it to a jury if the plaintiff does not provide proper notice and the exception does not apply.
Because plaintiffs failed to submit competent evidence demonstrating that they could not reasonably have known that Uptown might be liable in this case, the trial court clearly erred in denying summary disposition. This, however, is not to say that granting summary disposition was appropriate. See Langrill v Stingers Lounge, 471 Mich. 926 (2004). It was simply an error for the trial court to rely on counsel's statements and arguments to deny summary disposition. We therefore vacate the trial court's January 27, 2022 order and remand for the trial court to reconsider whether sufficient information for determining that Uptown might be liable under MCL 436.1801 was not known and could not reasonably have been known within 120 days of the beginning of the attorney-client relationship. See id. On remand, the trial court could hold an evidentiary hearing to determine plaintiffs' efforts with respect to finding out Uptown's involvement, ask the parties to supplement their filings, or decide the issue based on the competent evidence previously submitted.
We vacate the trial court's order denying summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.