ESTATE OF ALBERT D SWARTZENBERG; DECEASED
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of the ESTATE of ALBERT O.
SWARTZENBERG, Deceased.
_________________________________________
UNPUBLISHED
DENISE A SWARTZENBERG,
Plaintiff-Appellant,
v
JANE E. SWARTZENBERG, Independent Personal
Representative of the Estate of
ALBERT O. SWARTZENBERG, Deceased,
LINDA DUQUETTE, CAROL BOSKO and
JANICE KENNEDY,
No. 196677
Wayne Probate Court
LC No. 95-546752-IE
Defendants-Appellees.
Before: Smolenski, P.J., and Michael J. Kelly and Gribbs, JJ.
MICHAEL J. KELLY (partial dissent).
I respectfully dissent as to part I of the majority opinion.
Defendant moved for summary disposition under both MCR 2.116(C)(8) and (C)(10). In Huff
v Ford Motor Co, 127 Mich App 287, 292-293; 338 NW2d 387 (1983), we held that when a party
moves for summary disposition under both subsections, yet relies on a matter outside the pleadings to
argue the motion, we review under MCR 2.116(C)(10) only. I believe that summary disposition was
inappropriate before the completion of discovery on the disputed issue of whether or not the testator
omitted the plaintiff by mistake. Cf. Department of Social Services v Aetna Casualty & Surety Co,
177 Mich App 440, 446; 443 NW2d 420 (1989) (summary disposition for failure to establish genuine
issue of material fact proper only where further discovery does not stand a fair chance of uncovering
factual support for claim).
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Plaintiff has specifically claimed that she was prevented from deposing the defendant and
plaintiff’s sisters, the decedent’s other daughters. I am not convinced that further discovery does not
stand a fair chance for uncovering factual support as to whether plaintiff’s father, the deceased, had
made special provisions for and specific promises to plaintiff, who allegedly suffered disabling mental
and physical conditions.
I would remand for completion of discovery on plaintiff’s claim that she is a pretermitted heir
because her father’s omission to provide for her in his will was an accident or mistake.
On all other issues I concur with the majority.
/s/ Michael J. Kelly
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