Brian Revitzer v. Seth Swanson ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BRIAN REVITZER, UNPUBLISHED
May 18, 2023
Plaintiff-Appellant,
v No. 360397
Wayne Circuit Court
SETH SWANSON, KEVIN LUCIDI, CHAD LC No. 21-001075-CZ
LINDSTROM, and SCOTT WEIGERS also known
as SCOTT WIEGERS,
Defendants-Appellees.
Before: RICK, P.J., and SHAPIRO and O’BRIEN, JJ.
PER CURIAM.
Plaintiff, Brian Revitzer, appeals as of right the order granting summary disposition in
favor of defendants, Seth Swanson, Kevin Lucidi, Chad Lindstrom, and Scott Weigers, also known
as Scott Wiegers, under MCR 2.116(C)(7), (8), and (10). We affirm.
I. BACKGROUND
This case arises out of a January 2013 fatal automobile accident and the subsequent police
investigation. Plaintiff was driving his blue freightliner tractor-trailer south on I-75 when whiteout
conditions rapidly set in, causing a pileup accident. One of the automobiles involved in the
accident was a black 2010 Mazda driven by Glen Greenwood, with his wife and three children as
passengers. Two of the children died from injuries they sustained in the accident. Swanson, who
at the time was a trooper with the Michigan State Police Department (MSP), was the first to arrive
at the scene, and became the officer in charge of investigating the accident. Swanson believed
plaintiff’s truck struck Greenwood’s vehicle based on blue paint he observed on the roof of
Greenwood’s vehicle.
Weigers, who at the time was a motor-carrier officer with the MSP, assisted Swanson in
securing the scene and looking for victims. Weigers gathered information on the commercial
vehicles involved in the accident, including plaintiff’s truck. Weigers inspected plaintiff’s truck
one day after the accident and found that the brakes were inoperable. About a week after the
accident, Lucidi, then a sergeant with the MSP, collected paint samples from the vehicles involved
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in the accident, including plaintiff’s truck. In April 2013, Lindstrom (then a police trooper with
the MSP), Lucidi, and Swanson collected more paint and glass samples from the vehicles involved
in the accident, including plaintiff’s vehicle. According to plaintiff, no results from any
examination or testing of paint samples were divulged in the investigation.
In June 2013, plaintiff appeared at a Secretary of State driver’s reexamination hearing to
have his commercial driver’s license reviewed. Swanson also appeared at the hearing and testified
that plaintiff was at fault for the deaths of the individuals in the January 2013 accident. The
Secretary of State revoked plaintiff’s commercial driver’s license at the end of the hearing.
In September 2013, Swanson submitted a warrant request to the Wayne County
Prosecutor’s Office seeking manslaughter charges against plaintiff based on a laboratory
examination revealing an “association” between glass found in the Greenwood vehicle and
plaintiff’s truck. The assistant prosecuting attorney declined to bring charges, however,
concluding that the accident was “simply a crash due to extremely poor weather conditions.”
In 2014, plaintiff was a named party in a civil lawsuit concerning his liability for the
accident. During the suit, defendants were all deposed. During their depositions, there was a
discrepancy as to who was in charge of sending the paint samples for testing. Swanson stated that
Lucidi was likely in charge of what evidence was tested, while Lucidi said that Swanson took
possession of the paint samples and that it was Swanson’s responsibility to send the samples to the
laboratory for testing. The civil lawsuit was eventually dismissed in 2016 after the parties reached
a settlement agreement.
In September 2017, plaintiff submitted two complaints to the Professional Standards
Section of the MSP, one against Swanson and Weigers, the other against Lucidi and Lindstrom.
The complaints alleged that defendants engaged in misconduct, tampered with witnesses,
concealed evidence, and committed perjury. The complaints also referenced the paint samples
taken from the accident and the lack of testing results. After reviewing plaintiff’s complaints, the
Professional Standards Section determined that no further inquiry would be conducted. Plaintiff’s
complaint was nevertheless forwarded to the Special Investigations Section of the MSP because
plaintiff made criminal allegations against defendants. The complaint was received by Larissa
LaMay, a detective sergeant with the Special Investigation Section. LaMay reviewed plaintiff’s
complaints and referred the matter to the Wayne County Prosecutor’s Office, but was informed
that there would be no charges brought against defendants.
On January 25, 2021, plaintiff filed the instant action against defendants. The complaint
alleged, in relevant part, claims of (1) defamation; (2) gross negligence and intentional infliction
of emotional distress; (3) civil conspiracy; and (4) fraudulent concealment.1 Regarding plaintiff’s
fraudulent concealment claim, plaintiff alleged, “Through deceit and obfuscation, including
untruthful and misleading deposition testimony, [d]efendants concealed their improper action and
1
Plaintiff also alleged claims of malicious prosecution and abuse of process, but agreed to
voluntarily dismiss those claims.
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inaction in investigating the [a]ccident,” and as a result, “[p]laintiff was unable to learn of the
existence of his claims.”
In lieu of filing an answer, Lucidi, Lindstrom, and Weigers moved for summary disposition
under MCR 2.116(C)(7), (C)(8), and (C)(10). They argued that plaintiff’s claims for defamation,
gross negligence, intentional infliction of emotional distress, and civil conspiracy were barred by
the applicable statutes of limitations, and that the fraudulent concealment rule did not toll
plaintiff’s claims because (1) defendants’ purported bad acts could have been discovered from
public records; (2) plaintiff was aware of a possible cause of action as early as 2013, and as late as
2015; and (3) plaintiff failed to plead specific actions taken by defendants designed to prevent
discovery of his causes of action. Lucidi, Lindstrom, and Weigers alternatively argued that, if the
fraudulent concealment rule applied, plaintiff’s claims would only have been tolled until
September 2019. Additionally, Lucidi, Lindstrom, and Weigers argued they were entitled to
summary disposition on the basis of individual governmental immunity.
Plaintiff opposed the motion, arguing that it should be denied because (1) the fraudulent
concealment rule applied; (2) plaintiff was entitled to discovery on the issue of whether the paint
sample testing or examination results had been fraudulently concealed; (3) defendants failed to
present evidence that they acted in good faith; and (4) plaintiff stated a claim for defamation against
Swanson.
The trial court held a hearing on the motion at which it concluded that the fraudulent
concealment rule did not apply. It explained:
Unfortunately this Court finds nothing that extends the statute of limitation
for this case, that it was long ago given up with the statute and the paint samples
taken in 2013, the significant defense in the case and the underlying case . . . that
was ultimately settled. Plaintiff was aware of these claims. He filed his own action
against the police officers in 2018 [sic] involving these paint samples.
The trial court also concluded that Lucidi, Lindstrom, and Weigers were entitled to governmental
immunity, stating:
I think the governmental immunity defense would apply to the officers, except for
Swanson who may have been engaged in purposeful, intentful [sic] action that
would not allow governmental immunity to apply to him only. Nothing was
presented in this case that would extend any of that purposeful or intentful [sic]
action to these other officers and governmental immunity would also apply.
The trial court accordingly granted summary disposition in favor of Lucidi, Lindstrom, and
Weigers, and indicated “that the applicable statutes of limitations have also lapsed on the claims
against Defendant Swanson.” This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to grant a motion for summary
disposition. Broz v Plante & Moran, PLLC, 331 Mich App 39, 45; 951 NW2d 64 (2020).
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Defendants moved for summary disposition, in relevant part, on grounds that plaintiff’s claims
were barred by the statute of limitations. Such a motion is properly brought under MCR
2.116(C)(7). See Bronson Methodist Hosp v Allstate Ins Co, 286 Mich App 219, 222; 779 NW2d
304 (2009). This Court has explained the review of a motion brought under MCR 2.116(C)(7) as
follows:
The moving party may submit affidavits, depositions, admissions, or other
documentary evidence in support of the motion if substantively admissible. The
contents of the complaint must be accepted as true unless contradicted by the
documentary evidence. We must consider the documentary evidence in a light most
favorable to the nonmoving party for purposes of MCR 2.116(C)(7). If there is no
factual dispute, whether a plaintiff’s claim is barred under a principle set forth in
MCR 2.116(C)(7) is a question of law for the court to decide. But when a relevant
factual dispute does exist, summary disposition is not appropriate. [Moraccini v
City of Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012) (quotation
marks and citations omitted).]
This Court reviews de novo whether a claim is barred a statute of limitations, as well as the proper
interpretation and application of the limitations period. Stephens v Worden Ins Agency, LLC, 307
Mich App 220, 227; 859 NW2d 723 (2014). Whether a limitations period was tolled is likewise
reviewed de novo. Prentis Family Found v Barbara Ann Karmanos Cancer Inst, 266 Mich App
39, 46; 698 NW2d 900 (2005).
III. DISCUSSION
Plaintiff argues that the trial court erred in granting summary disposition in favor of
defendants because the fraudulent concealment rule tolled the applicable statutes of limitations for
plaintiff’s claims. We disagree.
The parties do not dispute that the longest statute of limitations applicable to any of
plaintiff’s claims was three years. See MCL 600.5805(2) and (11). The parties also do not dispute
that all of the applicable statutes of limitations expired before plaintiff filed his complaint on
January 25, 2021. Plaintiff argues that his claims can nevertheless proceed because the applicable
statutes of limitations were tolled because defendants fraudulently concealed plaintiff’s claims,
contrary to MCL 600.5855. That statue states:
If a person who is or may be liable for any claim fraudulently conceals the existence
of the claim or the identity of any person who is liable for the claim from the
knowledge of the person entitled to sue on the claim, the action may be commenced
at any time within 2 years after the person who is entitled to bring the action
discovers, or should have discovered, the existence of the claim or the identity of
the person who is liable for the claim, although the action would otherwise be
barred by the period of limitations.
MCL 600.5855 “permits the tolling of a statutory limitations period for two years if the defendant
has fraudulently concealed the existence of a claim.” Mays v Snyder, 323 Mich App 1, 39; 916
NW2d 227 (2018), aff’d 506 Mich 157 (2020). Under MCL 600.5855, a plaintiff has two years to
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bring a claim from the time he discovers, or reasonably should have discovered, the claim if the
plaintiff demonstrates that the defendant fraudulently concealed the claim. Frank v Linkner, 500
Mich 133, 148; 894 NW2d 574 (2017).
“Fraudulent concealment means employment of artifice, planned to prevent inquiry or
escape investigation, and mislead or hinder acquirement of information disclosing a right of
action.” Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632,
642; 692 NW2d 398 (2004) (quotation marks and citation omitted). To establish fraudulent
concealment, a plaintiff must show that the defendant engaged in some affirmative act or
misrepresentation designed to conceal the existence of a cause of action or the identity of a
potential defendant. Id. at 642-643. “[T]he plaintiff must plead in the complaint the acts or
misrepresentations that comprised the fraudulent concealment.” Id. at 643 (quotation marks and
citation omitted).
MCL 600.5855 will not toll the applicable period of limitations if liability was
“discoverable from the outset.” Prentis Family Foundation, 266 Mich App at 48. Stated
differently, fraudulent concealment does not toll the limitations period if a plaintiff could have
discovered the fraud. See id. at 45 n 2. Accordingly, if a cause of action is or should be known,
“there can be no fraudulent concealment which will interfere with the operation of the statute” of
limitations. Doe, 264 Mich App at 643.
Plaintiff’s complaint alleged that “[d]efendants concealed their improper action and
inaction in investigating the [a]ccident and seeking to criminally charge plaintiff” as shown by
defendants’ mishandling of the first set of paint samples collected from the accident (either
defendants failed to have these samples tested or they suppressed the results), and the fact that
defendants directed the second set of paint samples not be tested. Fatal to plaintiff’s argument,
however, is the evidence in the record demonstrating that, as early as 2015 or as late as 2017,
plaintiff knew or should have known of defendants’ mishandling of both sets of paint samples.
During Swanson’s deposition in the 2015 civil litigation involving plaintiff, plaintiff’s
counsel at the time questioned Swanson about both sets of paint samples collected from the
vehicles involved in the January 2013 accident. Swanson testified that he did not know whether
the first set of paint samples were sent to the lab for testing, but his report noted that the second
set of samples were. Swanson said that he was unsure why his report did not state whether the
first set of paint samples were sent to the lab. Similarly, Lucidi was asked about the paint samples,
and he said that he was unsure whether the samples taken from vehicles involved in the accident,
including plaintiff’s vehicle, were ever tested.
In September 2017, after the civil litigation concluded, plaintiff initiated a complaint
against defendants with the Professional Standards Section of the MSP. In his complaint against
Swanson and Weigers, plaintiff referenced the lack of results from the paint samples taken for
examination, and alleged that Swanson committed perjury during his deposition in the civil
litigation because Swanson testified the paint samples were never tested when, in fact, the samples
were sent to a laboratory for testing and the results revealed no match. In his complaint against
Lucidi and Lindstrom, plaintiff alleged that “Lucidi collected Paint samples # 1-6 on 02/07/2013
[but] there is not [a] record of these samples being tested[,] and this page from the police report is
the only proof items # 1-6 even exist[ed] because they disappeared.” He also alleged that Lucidi,
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along with Lindstrom, were “concealing evidence” because “they made lab reports and samples
disappear with no explanation as to their whereabouts.” He surmised that all four defendants
named in this action were “conspiring to put an innocent man [plaintiff] in jail” through “evidence
fabrication.”
Based on the foregoing, and accepting as true for purposes of this opinion that defendants
fraudulently concealed plaintiff’s claims initially, the record demonstrates that plaintiff
nevertheless knew or should have known about his causes of action against defendants by
September 2017 at the latest, meaning that plaintiff would have needed to file a complaint by
September 2019. Accordingly, plaintiff’s complaint filed in 2021 was barred by the applicable
statutes of limitations, and the trial court did not err by granting summary disposition in favor of
defendants.
Plaintiff also argues the trial court erred by granting summary disposition in favor of
Lucidi, Lindstrom, and Weigers on the basis of governmental immunity. It is unnecessary for us
to address this argument, however, in light of our conclusion that plaintiff’s claims are barred by
the statutes of limitations.
Affirmed.
/s/ Michelle M. Rick
/s/ Douglas B. Shapiro
/s/ Colleen A. O’Brien
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