Apostolos Paul Margaris v. Genesee County

STATE OF MICHIGAN

COURT OF APPEALS

APOSTOLOS PAUL MARGARIS, FOR PUBLICATION

May 3, 2018

Plaintiff-Appellant, 9:00 a.m.

v No. 337771

Genesee Circuit Court

GENESEE COUNTY, CHRISTOPHER LC No. 15-105802-CZ

SWANSON, and SHERIFF ROBERT PICKELL,

Defendants-Appellees,

and

STARLITE DINER, INC., and KOSTA POPOFF,

Defendants.

Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

PER CURIAM.

Plaintiff appeals by right the trial court’s grant of summary disposition in favor of

defendants, Genesee County, Sheriff Robert Pickell, and Undersheriff Christopher Swanson,

pursuant to MCR 2.116(C)(7) (claim barred by immunity), MCR 2.116(C)(8) (failure to state a

claim), and MCR 2.116(C)(10) (no genuine issue of material fact). The trial court ruled that

governmental immunity applied because Pickell was acting in his capacity as the sheriff at all

times, and Swanson was acting within the bounds of his authority. The trial court further

concluded that defendant Kosta Popoff, owner of the Starlite Diner, Inc., was a victim under the

circumstances and acted with good character in trying to resolve a conflict.1 We affirm.

1

Although the trial court granted summary disposition to defendants Starlite and Popoff pursuant

to MCR 2.116(C)(8) (failure to state a claim), and MCR 2.116(C)(10) (no genuine issue of

material fact), the parties had stipulated to dismiss the claims against Popoff and Starlite after the

motion hearing and before the trial court’s opinion and order was entered.

-1-

Plaintiff was the owner of another restaurant. An employee at Starlite informed Popoff

that one of plaintiff’s intermittent employees, Mike Jacques, who used to work for Starlite, was

stealing meat from Starlite and selling it to plaintiff. Popoff informed Pickell. Pickell’s

department investigated and performed a sting operation in which plaintiff purchased three boxes

of meat that were supplied to Jacques by Popoff. After plaintiff’s arrest, Swanson facilitated an

agreement for plaintiff to pay $1,800 in restitution, and the case would not be prosecuted.

Plaintiff filed claims alleging that defendants committed fraud by misrepresenting facts in order

to extort money from plaintiff and for intentional infliction of emotional distress, conversion,

discrimination, harassment, and civil conspiracy.

Plaintiff argues on appeal that the trial court erred by granting summary disposition

pursuant to MCR 2.116(C)(7) because Pickell’s actions were not within the scope of his

executive authority, and Swanson acted in bad faith. We disagree.

This Court reviews de novo the applicability of governmental immunity as a question of

law. Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004). In reviewing a motion

for summary disposition based on immunity, MCR 2.116(C)(7), this Court considers the

affidavits, depositions, admissions, and other documentary evidence to determine whether

movant is entitled to immunity as a matter of law. Tarlea v Crabtree, 263 Mich App 80, 87; 687

NW2d 333 (2004). The evidence is viewed in a “light most favorable to the nonmoving party,”

and “all legitimate inferences in favor of the nonmoving party” are drawn. Jackson v Saginaw

Co, 458 Mich 141, 142; 580 NW2d 870 (1998).

Governmental immunity from tort liability is governed by the operation of MCL

691.1407. Under § 7, immunity is broadly interpreted, and exceptions to it are narrowly

construed. Frohriep v Flanagan, 275 Mich App 456, 468; 739 NW2d 645 (2007), rev’d in part

on other grounds 480 Mich 962 (2007). Governmental immunity is a characteristic of

government, and plaintiffs bringing suit against the government must plead to avoid the

government’s immunity. Odom v Wayne Co, 482 Mich 459, 478-479; 760 NW2d 217 (2008).

I. SHERIFF PICKELL

When a defendant invokes individual governmental immunity, the court must first

determine whether the individual is entitled to absolute immunity as a high level executive

official under MCL 691.1407(5). High level executive officials “may qualify for absolute

immunity because they have broad-based jurisdiction or extensive authority similar to that of a

judge or legislator.” Harrison v Director of Dep’t of Corrections, 194 Mich App 446, 451; 487

NW2d 799 (1992). To benefit from the immunity granted to highly ranked officials, an

individual must be a judge, a legislator, or the highest executive official in the level of

government in which he is employed. See Eichhorn v Lamphere School Dist, 166 Mich App

527, 538; 421 NW2d 230 (1988). Here, Pickell was the sheriff of Genesee County. A county

sheriff is entitled to high-level governmental immunity. See Bennett v Detroit Police Chief, 274

Mich App 307, 313-314; 732 NW2d 164 (2006) (concluding that the chief of police was entitled

to governmental immunity). The sheriff is the highest elected official and executive officer of

the county’s law enforcement. See Const 1963, art 7, § 4. Because the allegations against

Pickell involved his acting in his capacity as sheriff, he is entitled to absolute immunity if he was

acting within the scope of his executive authority.

-2-

Whether the highest executive official of local government was acting within his

authority depends on a number of factors, including the “nature of the specific acts,” the

“position held by the official,” the “local law defining the official’s authority,” and the “structure

and allocation of powers in the particular level of government.” Bennett, 274 Mich App at 312

(citation omitted). Here, plaintiff argues that Pickell was not acting within his authority because

he was acting as a debt collector for a private citizen and his political supporter, Popoff, rather

than serving a law enforcement function. But there was no evidence of an intentional transaction

between Popoff and plaintiff for which plaintiff incurred a debt to be collected.

MCL 51.76(2)(b) provides that the sheriff is responsible in part for “[e]nforcing the

criminal laws of this state, violations of which are observed by or brought to the attention of the

sheriff's department while providing the patrolling and monitoring required by this subsection.”

Here, Pickell was dining at the restaurant belonging to his friend and political supporter, Popoff,

when Popoff informed him that he learned that an ex-employee had been selling plaintiff meat

stolen from his restaurant. Pickell directed Swanson to investigate. He did so by interviewing

those involved and by the sheriff’s department initiating an undercover operation where Jacques

sold meat from Popoff to plaintiff.2 Plaintiff was arrested after buying the meat from Jacques.

The investigating officer, William Lanning, spoke to the assistant prosecutor, Timothy Bograkos,

to request an arrest warrant, and Bograkos spoke to the county prosecutor, David Leyton. Pickell

and Swanson met with Leyton to request resolution of the case through restitution instead of

prosecution, as Popoff favored restitution. Swanson met with plaintiff, and they reached an

agreement in which plaintiff paid $1,800 to Popoff, and Popoff would not seek prosecution.

Thus, Pickell’s activities of receiving information about a theft crime, conducting an

investigation, suggesting restitution rather than prosecution, and authorizing Swanson to speak

with plaintiff about restitution were in the framework of investigating crimes and enforcing the

law in Genesee County, all of which were his responsibilities as sheriff. Because Pickell was

acting in the scope of his executive authority as sheriff, he was entitled to immunity.

Plaintiff argues that the sheriff’s department was collecting a debt from plaintiff, and debt

collection was not within the executive authority of Pickell. Pickell characterized the resolution

of the matter as plaintiff’s paying restitution for a wrongdoing, not satisfying a debt for money

owed. The sheriff’s department had experience at resolving complaints through restitution

whether through its consumer’s protection bureau for consumer issues or after investigating

criminal matters. Pickell believed that it was the right of the sheriff to attempt to settle a dispute

and perhaps avoid prosecution. Leyton believed that it was proper for the victim of a crime to

settle the case through restitution and that Swanson had assisted with resolving other cases

similarly. Bograkos said it was common to resolve a case such as this with restitution. Popoff

said that after the sheriff’s department asked him about resolving the situation, his attorney told

him that the police frequently used a civil remedy to work out a complaint. Popoff recalled that

the local police previously worked out restitution, rather than prosecution, for a person who

2

According to Swanson, Jacques admitting he stole steaks from Starlite and sold 10 boxes of

them to plaintiff more than four times.

-3-

vandalized his restaurant. Popoff said that he did not wish to harm plaintiff or his business, but

he did wish to receive restitution for the meat that was stolen.

Plaintiff argues that the money that plaintiff paid could not have been restitution because

Pickell and Swanson knew that plaintiff was not going to be prosecuted before plaintiff agreed to

pay the money. Plaintiff states that Pickell and Swanson knew that plaintiff was not going to be

prosecuted because former County Commissioner Jamie Curtis stated that she heard Leyton

report that he told Pickell and Swanson that he would not prosecute plaintiff because the case

involved only the theft of $75 worth of meat, a misdemeanor.

Other facts of record, however, provide more insight into the comments Curtis heard.

Leyton did not recall a conversation about the value of the meat or whether the crime was a

misdemeanor, and he did not recall discussing the case with Curtis. The Curtis affidavit also

states that she heard Leyton say that he did not know about prosecuting plaintiff because he

knew both plaintiff and Popoff. Leyton said that Bograkos informed him that a warrant was

requested stemming from plaintiff’s buying stolen meat, and Leyton said that the case would

have to be transferred to another agency if it were prosecuted because he knew plaintiff and

Popoff. Similarly, Bograkos said Lanning presented the case to him for warrant review, and he

spoke to Leyton, who requested a dollar amount of the meat involved so that he could determine

which agency to refer the case to because he was going to have to recuse his office. Bograkos

believed that there was probable cause to authorize a warrant before the case was resolved.

Pickell reported that Popoff told him that he had common friends with plaintiff because

he was Greek and did not wish to see plaintiff’s business harmed by a prosecution.

Consequently, Pickell thought it was appropriate to treat the situation like a consumer protection

matter so Popoff could get his money back. Pickell and Swanson reported that they met with

Leyton, who approved the reimbursement remedy rather than prosecution. Leyton said that he

met with Pickell and Swanson, who wished to refer the case to the consumer protection division,

which Leyton approved. Thus, the evidence, considered in a light most favorable to plaintiff,

indicated that plaintiff’s prosecution was deferred in an attempt to resolve the situation through

restitution.

The Sheriff’s Department report stated that plaintiff had been arrested for larceny and

receiving and concealing stolen property but that plaintiff and Popoff agreed to a $1,800

settlement and a promise not to pursue criminal or civil action. After the agreement was reached,

Bograkos denied the warrant because the case had been resolved. The warrant request stated that

a warrant was denied by the prosecutor because the “parties have resolved their differences and

reached a restitution agreement.” There was no evidence that prosecution had been dismissed as

a possibility before the situation was resolved through the settlement.

Plaintiff also argues that he could not have been guilty of a crime because he did not

know the meat was stolen. Plaintiff reported that Jacques told him on a previous occasion that

the meat was from his friend at Cisco Foods. He further stated that he did not know where the

meat was from that he purchased the day he was arrested because he did not look at the boxes,

which had Starlite mailing labels on them, before he put them in the freezer. The trial court

acknowledged that it was possible that plaintiff did not know the meat was stolen. However,

plaintiff reported that he and his wife discussed that Jacques used to work at Starlite and that he

-4-

agreed with his wife that the meat could have been taken from Starlite. Plaintiff explained that

his wife attempted to call Starlite to discuss the matter, but she was unable to speak with Popoff.

Plaintiff testified that he apologized to Lanning for having purchased stolen meat and that he

made a big mistake. Swanson reported that Jacques said “enjoy the Starlite special” after selling

the stolen meat to plaintiff. Notably, rather than undergo prosecution and allow a jury to

determine whether plaintiff knew he was buying stolen meat, plaintiff agreed to pay an amount

of restitution. Considering the evidence in a light that favors plaintiff, we agree it was possible

for a jury to determine that plaintiff had committed a crime had plaintiff chosen to decline

restitution.

Plaintiff argues that the value of the meat was only $75, so plaintiff’s payment of $1,800

was too excessive to be considered restitution for an amount that would have been a

misdemeanor. But the actual value of the meat that had been stolen from Popoff and which

plaintiff purchased was not definitively established. Plaintiff reported that on the day of his

arrest he bought two boxes of steaks and one of turkey, for a total of $75. Popoff said the total

value of the three boxes of meat he provided for the undercover operation was $350.

Additionally, Jacques stated that he had sold three boxes of meat stolen from Popoff to plaintiff

earlier for $275. Plaintiff told Lanning that approximately a month before his arrest he

purchased four or five boxes of steak for $40 a box. When he was arrested, plaintiff provided

Lanning with four cases of meat from his freezer that he had purchased from Jacques.

According to Popoff, his informant thought that plaintiff purchased the stolen meat on

four or five occasions. Popoff estimated from information from his manager and prep cook that

the stolen food was worth between $500 and $1,000 for each instance, or a total of $4,000 to

$10,000. Swanson thought that the value of the meat, according to Popoff’s report, was “into the

thousands,” as high as $10,000, but that amount could not be demonstrated. Pickell stated that

he was not involved in determining the amount of restitution. Bograkos said that he never

learned of a specific dollar amount. Thus, the $75 figure was the black market value of the meat

stolen during the sting operation; it had a much higher market value. Additionally, there were

additional purchases of stolen meat with varying black market and retail values. But, in sum, it

is disingenuous to suggest that plaintiff paid $1,800 for $75 worth of meat or that the case would

not have been prosecuted due to the amount plaintiff paid for his most recent purchase.

II. UNDERSHERIFF SWANSON

Plaintiff next argues that the trial court erred by ruling that Swanson was entitled to

individual governmental immunity. In respect to an intentional tort, lower level governmental

employees can demonstrate entitlement to individual governmental immunity by showing the

following:

(a) The acts were undertaken during the course of employment and the

employee was acting, or reasonably believed that he was acting, within the scope

of his authority,

(b) the acts were undertaken in good faith, or were not undertaken with

malice, and

-5-

(c) the acts were discretionary, as opposed to ministerial. [Odom, 482

Mich at 480.]

The commission of an intentional tort is not the exercise or discharge of a governmental

function. Moore v Detroit, 128 Mich App 491, 497; 340 NW2d 640 (1983).

As discussed above, investigating the criminal activity of purchasing stolen meat from

Starlite and Popoff and resolving the investigation with the payment of restitution was within

Swanson’s authority. Plaintiff does not argue that resolving the case with restitution was a

ministerial task. Plaintiff argues that Swanson did not act in good faith when speaking with

plaintiff about restitution. Plaintiff recalled that he invited Swanson to speak with him at his

restaurant, and Swanson told him that Starlite could not wait for him to not agree to pay a

settlement. According to plaintiff, Swanson said that Starlite wanted to “bury” him, so that he

“will never see the daylight,” and that he was facing prison time and “he” knows the judges, the

sheriff, and the prosecutor. Plaintiff said that Swanson asked him to pay $5,000 to make the

incident go away, but plaintiff refused. Plaintiff reported that Swanson then called Popoff and

lowered the requested amount to $3,000, after which plaintiff offered, or agreed to, the $1,800

that was accepted. Plaintiff said that after he paid the money, Swanson told him that the owner

of Starlite did not want to hurt him. Plaintiff recalled that he signed a receipt that Popoff also

signed documenting the transaction.

By contrast, Swanson denied that he threatened plaintiff with prison during their

conversation, characterizing it as cordial and factual. He said he informed plaintiff that Popoff

did not wish to prosecute; he wanted to resolve the case with restitution. Swanson said that he

did not recall what amounts were discussed, other than plaintiff’s offering $1,500, but he knew

that the lowest amount that Popoff would accept was $1,800. Popoff stated that $1,800 was his

settlement amount because plaintiff had $600 worth of Popoff’s steaks in his freezer, and his

attorney told him that he could seek treble damages. Popoff recalled Swanson’s informing him

of plaintiff’s $1,500 offer, which he declined. Swanson reported that plaintiff provided cash that

he documented and gave to Popoff. Popoff reported that he collected the $1,800 from the

Sheriff’s Department.

Plaintiff argues that Swanson was not acting in good faith to demand $5,000 for $75 of

meat and while threatening jail time when he knew that the case would not be prosecuted. But as

discussed above, the decision to decline an arrest warrant was made after the restitution payment

because the parties had agreed on restitution. Until the case was resolved with restitution, the

status of plaintiff’s prosecution was not determined, and Swanson could fairly inform plaintiff

that prosecution was a possibility. Further, as discussed, no value of the meat stolen was

definitively determined. Thus, the potential amount of restitution varied during negotiations, but

Popoff ultimately determined a dollar figure to which plaintiff agreed. The evidence indicated

that Popoff and his attorney together determined the restitution amount. Plaintiff agreed then

agreed to that amount; it was not based on Swanson’s actions.

III. GENESEE COUNTY

Plaintiff also argues that the trial court erred by ruling that Genesee County was entitled

to governmental immunity. The governmental tort liability act (GTLA), MCL 691.1401 et seq.,

-6-

grants immunity from tort liability to the state, as well its agencies, when they are engaged in the

exercise of a governmental function, except where the Legislature has expressly granted an

exception. MCL 691.1407(1).3 In this case, Genesee County was not engaged in any of the

functions that are exempted from immunity. Therefore, Genesee County was immune from

liability because there is no statutory exception applicable to the instant facts, and plaintiff did

not plead facts in avoidance of immunity. Odom, 482 Mich at 478-480.

Plaintiff argues that Genesee County was not engaged in a governmental function when it

was collecting a debt for Popoff from plaintiff. “In determining whether a particular activity

constitutes a governmental function, the focus is on the precise activity giving rise to plaintiff’s

claim rather than on the entity’s overall or principal operation.” Everett v Saginaw Co, 123 Mich

App 411, 414; 333 NW2d 301 (1983). Nonetheless, “to use anything other than the general

activity standard would all but subvert the broad grant of governmental immunity intended by

the Legislature [because i]t would be difficult to characterize any tortious act that is a

governmental function.” Payton v Detroit, 211 Mich App 375, 392; 536 NW2d 233 (1995)

(quotation marks and citation omitted). Governmental immunity is differentiated from the

immunity given to individuals in that the immunity granted by the GTLA to a governmental

entity is based upon the general nature of the activity of its employees, rather than the specific

conduct of its employees. Id. at 392. Thus, “[t]o determine whether a governmental agency is

engaged in a governmental function, the focus must be on the general activity, not the specific

conduct involved at the time of the tort.” Pardon v Finkel, 213 Mich App 643, 649; 540 NW2d

774 (1995). In this case, Genesee County was engaged in the governmental function of law

enforcement, and, as discussed, the activity of law enforcement includes investigating suspected

crimes and resolving those investigations. Additionally, governmental entities are immune from

liability for the torts of its employees when they are engaged in the exercise of a governmental

function, except where the Legislature has expressly granted an exception to immunity.

Although “there is no exception in the governmental immunity statute for intentional torts[,]”

Payton, 211 Mich App at 392, as discussed above, Genesee County was engaged in a

governmental function at the time of the alleged intentional torts of its employees. See id. at 393

(concluding that a governmental unit was entitled to immunity “because it cannot be held liable

for the intentional torts of its employees”).

IV. CONCLUSION

Because we conclude that the trial court did not err by granting summary disposition to

Pickell, Swanson, and Genesee County pursuant to MCR 2.116(C)(7) as they were entitled to

3

“The statutory exceptions to the governmental immunity provided to the state and its agencies

are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the

public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413;

the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event

exception, MCL 691.1417(2) and (3).” Odom, 482 Mich at 478 n 62.

-7-

governmental immunity, we do not reach the issue of whether the trial court also properly

granted summary disposition pursuant to MCR 2.116(C)(8).

We affirm.

/s/ Deborah A. Servitto

/s/ Jane E. Markey

-8-