RUSS VITALE V WILLIAM E BUFALINO II
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STATE OF MICHIGAN
COURT OF APPEALS
RUSS VITALE and DEBORAH VITALE,
UNPUBLISHED
May 17, 2002
Plaintiffs-Appellants,
No. 230560
Wayne Circuit Court
LC No. 00-005306-NM
v
WILLIAM E. BUFALINO, II, FRANK J.
PALAZZOLO, NUNZIO G. PROVENZANO,
AND BUFALINO AND PALAZZOLO, P.C.,
Defendants-Appellees.
Before: Markey, P.J., and Talbot and Zahra, JJ.
PER CURIAM.
In this legal malpractice action, plaintiffs appeal as of right from an order granting
summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). We reverse and
remand.
Plaintiffs’ allegations of legal malpractice concern defendants’ representation of plaintiffs
in an underlying action to surcharge them for misappropriating funds from a probate estate. In
that action, an order granting summary disposition was entered against plaintiffs, and punitive
damages were awarded.1 Plaintiffs brought the instant case alleging various acts of legal
malpractice. Defendants moved for summary disposition pursuant to MCR 2.116(C)(10).
Plaintiffs opposed the motion, arguing that genuine issues of material fact exist and that
summary disposition was premature because discovery had not begun. In a written opinion, the
trial court granted summary disposition for defendants.
We review a trial court’s ruling on a motion for summary disposition de novo. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary
disposition under MCR 2.116(C)(10) tests the factual support for a claim. Smith v Globe Life Ins
Co, 460 Mich 446, 454; 597 NW2d 28 (1999). A court must consider the pleadings, depositions,
affidavits, admissions, and other documentary evidence submitted by the parties in the light most
favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d
1
The underlying action was the subject of an appeal to this Court, In re Russ Anthony Vitale, Jr.,
unpublished opinion per curiam of the Court of Appeals, issued 2/8/2002, (Docket Nos. 220024,
220025).
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314 (1996). Summary disposition is appropriate if the affidavits or other documentary evidence
show that there is no genuine issue with respect to any material fact, and the moving party is
entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4); Quinto, supra at 362.
On appeal, plaintiffs argue: (1) that the trial court erred in finding no genuine issue of
material fact, and (2) that the grant of summary disposition was premature. We agree that
summary disposition was prematurely granted.
“Generally, a motion for summary disposition under MCR 2.116(C)(10) is premature
when discovery on a disputed issue has not been completed.” Colista v Thomas, 241 Mich App
529, 537; 616 NW2d 249 (2000). Summary disposition may be proper before the close of
discovery if there is no reasonable chance that further discovery will result in factual support for
the nonmoving party. Id. at 537-538; Village of Dimondale v Grable, 240 Mich App 553, 566;
618 NW2d 23 (2000).
In the instant case, the trial court granted summary disposition before discovery had
begun. Defendants’ well-supported motion for summary disposition shifted the burden to
plaintiffs “to present documentary evidence establishing the existence of a material factual
dispute[.]” Quinto, supra at 363. In the absence of discovery, we conclude that it was premature
to grant summary disposition for plaintiffs’ failure to carry this burden. Plaintiffs are entitled to
at least a modicum of discovery to attempt to oppose summary disposition.
We note the significant burden on plaintiffs in light of the evidence submitted by
defendants, and that summary disposition may ultimately be appropriate after further
development of the record. However, at this early stage of proceedings where plaintiffs have not
been afforded any opportunity for discovery, we are not satisfied that discovery stands no chance
of uncovering factual support for plaintiffs’ position. Colista, supra at 537-538.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Jane E. Markey
/s/ Michael J. Talbot
/s/ Brian K. Zahra
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