Susan A. Krueger v. Gary Cembrowski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 8, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1096 Cir. Ct. No. 2020PR437

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE ESTATE OF GEORGE J. CEMBROWSKI:

SUSAN A. KRUEGER, PERSONAL REPRESENTATIVE OF THE ESTATE OF
GEORGE J. CEMBROWSKI,

RESPONDENT,

V.

GARY CEMBROWSKI,

APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
PAUL R. VAN GRUNSVEN, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.
No. 2021AP1096

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Gary Cembrowski appeals an order of the circuit
court granting summary judgment in favor of his sister, Susan A. Krueger, and
dismissing his objections to the probate of their father’s will and his claim against
their father’s estate. On appeal, Gary argues that the circuit court improperly
construed Susan’s motion to dismiss as a motion for summary judgment and
improperly assessed the credibility of his affidavit in granting summary judgment
for Susan. Gary also argues that the circuit court erroneously dismissed his claim
against the estate for being untimely. Upon review, we affirm the circuit court’s
order.

BACKGROUND

¶2 George Cembrowski died on March 2, 2020. He was survived by
his four children—Susan Krueger, Wendy Cembrowski, Gary Cembrowski, and
Dennis Cembrowski.

¶3 Susan applied for an informal administration of the estate on
March 26, 2020, and submitted a will dated August 28, 2015. The 2015 will
named Susan as George’s personal representative, and it named Wendy as the
alternate. The 2015 will also placed George’s estate into a trust, and the trust
provides that the estate is to be shared equally among George’s four children.1

1
The parties noted that the trust documents are not a part of the record. However, no
one disputes that the trust was structured to provide equal shares of George’s estate to his four
children.

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¶4 On July 14, 2020, Gary and Dennis filed a demand for formal
proceedings and objections to the probate of the 2015 will and Susan’s
appointment as the personal representative. In their objections, Gary and Dennis
primarily argued that the 2015 will was the product of Susan’s undue influence
over their deceased father; however, they also argued that their father lacked
competency to execute the 2015 will. As an alternative, they submitted a will
dated October 22, 2004, which they argued controlled. The 2004 will named
George’s now deceased wife, Elizabeth Cembrowski, as the personal
representative and named Wendy as the alternate. Under the 2004 will, George’s
estate was also left to Elizabeth. As particularly relevant here, though, the 2004
will left George and Elizabeth’s home to Gary, should Elizabeth predecease
George. The residue of the estate was then to be divided equally among the four
children.

¶5 In addition to their objections, Gary and Dennis filed a claim against
the estate on August 24, 2020, for $200,000 as compensation for “personal care
and support.” Instead of providing documentation supporting their claim at the
time of filing, they provided that “[t]he amount claimed is subject to further
verification.”

¶6 Susan filed an objection to the claim on September 4, 2020, citing
Gary and Dennis’s lack of documentary support for their claim of $200,000 for
personal care and support. Three months later, on December 8, 2020, she filed a
motion to dismiss the objections and the claim, after Gary and Dennis still failed
to provide support for their claim. Attached to her motion were two supporting
affidavits—one from her and one from the attorney who assisted with preparing
the 2015 will—discovery responses from Gary and Dennis, and communications
between counsel about deficiencies in the discovery responses.

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¶7 In her motion, Susan argued that Gary was attempting to void the
2015 will in order to obtain the Cembrowski home where he had been residing
with his parents rent-free and, if that did not work, he filed a claim in excess of the
value of the estate in order to drain the estate. She further stated that Gary and
Dennis failed to produce any supporting documentation for their objections and
their claim in response to interrogatories Susan served on them, and she described
that Gary and Dennis provided deficient discovery responses when they
inappropriately continued to maintain that documentation was forthcoming. She
further argued that Gary and Dennis failed to provide any detail or examples of the
personal care and support they provided, or of the reasons they believed the
Cembrowski home was to be left to Gary. Susan argued, “They should have had
evidence to support their allegations and claims before making those claims in
court documents.” Because they had yet to produce any support, either in their
court filings or through discovery, Susan came to the conclusion that Gary and
Dennis made claims in court without any legal or factual basis. She, thus,
requested that their objections and their claim be dismissed.

¶8 In response, Gary and Dennis filed a “Brief in Opposition of
Summary Judgment,” within which they outlined the standard for summary
judgment. Gary continued by stating that he lived with his parents “throughout his
adult life” and “served as a primary caretaker,” and he argued that he “raised
triable issues of fact” as to whether Susan took advantage of their father’s age and
poor health—which included hallucinations, hearing impairment, poor eyesight,
and dementia—when she arranged to have him redo his will in 2015 and exclude
Gary from inheriting the house. He argued that, based on his submission,
“summary judgment should be denied at this time.” The response included two

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supporting affidavits—one from Gary and one from Dennis—but it did not include
any additional exhibits.

¶9 Susan argued in reply that Gary and Dennis continued to lack
support for their claims of undue influence and their claims should be dismissed.
In fact, Susan argued that Gary and Dennis misrepresented the facts. She alleged
that Gary was abusive towards their parents, and she further alleged that their
father was perfectly competent at the time he executed the 2015 will, as evidenced
by his work as a crossing guard and the vacations he took around the time of the
2015 will. She further contended that Gary and Dennis mischaracterized George’s
medical records because they picked out one reference to dementia in 292 pages
worth of medical records. She also maintained that George testified in, and was
clearly competent during, the proceedings to appoint a guardian for their mother,
and those proceedings occurred in the month prior to George executing the 2015
will.

¶10 In a written decision, the circuit court granted summary judgment for
Susan and dismissed the objections and the claim that Gary and Dennis filed. The
court noted that the parties had “differing characterizations of the instant motion”
but “it is readily apparent that the parties rely on the summary judgment standard
because they ask the [c]ourt to take their affidavits into consideration.” The circuit
court, therefore, treated the matter as one for summary judgment.

¶11 In its decision, the circuit court dismissed the claim against the estate
for two reasons: (1) the claim was filed late and (2) Gary failed to produce
evidence of an express agreement for personal services. The circuit court also
dismissed the objections to the 2015 will and Susan’s appointment as special
administrator because Gary failed to provide any credible evidence crucial to

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supporting his claim of undue influence. In particular, the circuit court found that
Gary failed to provide any information suggesting that Susan had an opportunity
to unduly influence George, and in fact, the circuit court found that Gary admits
that “no one had more access to his father than he did.” The circuit court similarly
found that Gary failed to provide any information that George was susceptible to
influence, that Susan had a disposition to influence George, or that Susan engaged
in any wrong or unfair conduct “when she stands to receive no more than her
siblings.”

¶12 In conclusion, the circuit court granted Susan’s motion and stated,
“In this instance, the [c]ourt finds Gary’s affidavits lack credibility in light of the
wealth of evidence against him, including the information presented to show
George’s competency in 2015 and the allegations that George endured Gary’s
verbal and physical abuse during the final years of his life.”

¶13 Gary now appeals.

DISCUSSION

¶14 Gary raises three main arguments on appeal. In his first argument,
he contends that the circuit court improperly treated Susan’s motion to dismiss as
a motion for summary judgment. In his second argument, he alleges that the
circuit court improperly considered the credibility of his affidavit as part of the
summary judgment procedure. In his third argument, Gary contends that the
circuit court erroneously denied his claim as untimely filed. However, as a result
of our conclusion today, we need not address Gary’s third argument, and we turn
to Gary’s first two arguments. See State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest
possible ground[.]”).

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I. Whether the Circuit Court Properly Treated Susan’s
Motion as One for Summary Judgment

¶15 In response to Gary’s first argument, we initially note that Gary
concedes in his reply brief that he not only failed to object below to the circuit
court’s treatment of Susan’s motion to dismiss, but also he himself treated Susan’s
motion to dismiss as one for summary judgment. A review of the record confirms
Gary’s concession, and it shows that Gary responded to Susan’s motion by filing a
brief entitled, “Brief in Opposition of Summary Judgment” wherein he proceeded
to argue that he raised “triable issues of fact.” Gary also submitted two affidavits
with the response.

¶16 Accordingly, Gary correctly observes that he cannot now complain
of the circuit court’s treatment of Susan’s motion as one for summary judgment.
See State v. Gove, 148 Wis. 2d 936, 943-44, 437 N.W.2d 218 (1989) (rejecting a
claim raised on appeal when the litigant “affirmatively contributed to what he now
claims was trial court error”); see also State v. Freymiller, 2007 WI App 6, ¶15,
298 Wis. 2d 333, 727 N.W.2d 334 (“Generally, where a party ‘invites error’ on a
given issue, we will not review the issue on appeal.”). As the circuit court
recognized in its decision, the parties presented “differing characterizations of the
instant motion” but that “it is readily apparent that the parties rely on the summary
judgment standard.” Consequently, we do not address Gary’s argument on this
topic further, and we also treat the matter as one for summary judgment.2

2
As a result of Gary’s concession, we also do not address Susan’s alternative argument
that the circuit court properly converted the motion into one for summary judgment. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).

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II. Whether the Circuit Court Improperly Weighed Witness
Credibility

¶17 Summary judgment shall be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2) (2021-
22).3 “Whether the circuit court properly granted summary judgment is a question
of law that this court reviews de novo.” Racine Cnty. v. Oracular
Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88 (citation
omitted).

¶18 Gary argues that the circuit court improperly considered the
credibility of the affidavits in reviewing the motion for summary judgment. In
making this argument, Gary points to a statement made by the circuit court in its
decision where the circuit court stated, “Finally, it is the [c]ourt’s duty and
obligation to weigh the credibility of the evidence presented. In this instance, the
[c]ourt finds Gary’s affidavits lack credibility in light of the wealth of evidence
against him.”

¶19 In general, “[t]he trial court may not base its ruling on its assessment
of the weight of the evidence or the witnesses’ credibility[.]” Pomplun v.
Rockwell Int’l Corp., 203 Wis. 2d 303, 306-07, 552 N.W.2d 632 (Ct. App. 1996).
However, while Gary is correct that assessing witness credibility is generally
inappropriate upon summary judgment, we conclude that Gary ultimately failed to
raise any triable issues of fact because he provides only conclusory allegations in

3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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response to Susan’s motion as opposed to admissible facts. See Oracular
Milwaukee, Inc., 323 Wis. 2d 682, ¶26 (quoting WIS. STAT. § 802.08(3)). Thus,
we turn to an analysis of Gary’s submission opposing Susan’s motion.

¶20 In Gary’s affidavit attached to the “Brief in Opposition of Summary
Judgment,” he averred that he held various jobs throughout the years, including
installing electronics and running his own small business. He avers that he
“significantly reduced” his business operations after his parents’ health began to
decline in 2010, and that his father’s health continued to decline to the point where
his father developed glaucoma, a cataract, and would hallucinate. He further
stated that his father was “hard of hearing” and “would often misunderstand
spoken words.” He provided that he became “a full time caretaker” in 2014, and
he witnessed strange behavior from his father, including incidents of dumpster
diving to “salvage rotten meat which he would attempt to eat and attempt to feed
mom.” He further averred that Susan took their father to arrange a guardianship
over their mother and Susan told him that the attorney advised that their father
would not be appointed as the guardian. Thus, Susan sought to be appointed the
guardian over their mother, but “Supportive Community Services” was appointed.
Finally, Gary averred that Susan incorrectly stated under oath that their mother
and father took care of themselves, and that he believed that there were
“significant medical records presently within the possession of Froedtert Hospital
and Ascension Medical Group.”

¶21 Ultimately, Gary provides only conclusory allegations and does not
provide facts admissible in evidence that would prove any of the elements of his
objections or claim. Affidavits in support of and in opposition to a motion for
summary judgment “shall be made on personal knowledge and shall set forth such
evidentiary facts as would be admissible in evidence.” WIS. STAT. § 802.08(3).

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“The party opposing summary judgment ‘may not rest upon the mere allegations
or denials of the pleadings’ but instead, through affidavits or otherwise, ‘must set
forth specific facts showing that there is a genuine issue for trial.’” Oracular
Milwaukee, Inc., 323 Wis. 2d 682, ¶26 (quoting WIS. STAT. § 802.08(3)).
However, a review of Gary’s affidavit demonstrates that he has failed to carry his
burden and continues to rest upon mere allegations that the 2015 will was the
product of undue influence and that George lacked the capacity to execute the
2015 will.

¶22 To defeat Susan’s motion, Gary needed to set forth specific facts
showing a genuine issue for trial related to four elements related to the execution
of the 2015 will: (1) George was susceptible to undue influence, (2) Susan had the
opportunity to unduly influence George, (3) Susan had the disposition to unduly
influence George, and (4) a coveted result. See Brehmer v. Demien, 41 Wis. 2d
349, 351, 164 N.W.2d 318 (1969); see also Lee v. Kamesar, 81 Wis. 2d 151, 158-
59, 259 N.W.2d 733 (1977).

¶23 By contrast, Gary’s affidavit completely fails to assert any facts
related to the execution of the 2015 will. He fails to assert how his father lacked
competency and how the 2015 will was the result of undue influence, including
necessary components such as that Susan somehow arranged the execution of the
2015 will or was present at the time that George executed the 2015 will.4 See
Brehmer, 41 Wis. 2d at 357 (“Undue influence to render a will invalid must

4
Dennis’s supporting affidavit is equally deficient. In his affidavit, he avers that he
noticed that their father was becoming “more and more confused” and that “[h]e would say things
that were nonsensical while talking to himself.” However, Dennis’s only statement regarding the
2015 will amounts to a statement that “I don’t believe that he could have understood the Will he
signed on August 28, 2015.”

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operate at the particular time of its execution.” (citation omitted)). Rather than
provide facts related to the 2015 will, Gary instead asserts irrelevant facts in his
affidavit related to Susan’s assistance to their father in the guardianship
proceedings involving their mother. The guardianship proceedings admittedly
occurred in 2014 and 2015 around the same time as the execution of 2015, but
facts related to the guardianship proceedings nevertheless fail to provide any
details about the execution of the 2015 will and how it was the product of undue
influence.

¶24 Gary’s affidavit falls short in other respects. For example, Gary also
provides details suggesting that his father was aging, but he fails to indicate how
those details necessitate that his father lacked competency or was somehow
susceptible to undue influence. See Lee, 81 Wis. 2d at 159 (“[T]he infirmities of
old age, such as forgetfulness do not incapacitate one from making a valid will.”).
Moreover, as the circuit court stressed, the facts in Gary’s affidavit even contradict
certain points Gary makes in his argument. More specifically, instead of
establishing that Susan had the opportunity to influence their father, Gary’s
affidavit alternatively establishes “that no one had more access to his father than
he did” because he lived with and cared for his parents beginning in 2010. See
Brehmer, 41 Wis. 2d at 356 (“almost daily contact with the deceased” provided
“the opportunity to unduly influence her father”). Thus, we conclude that Gary
has failed to set forth specific facts demonstrating a genuine issue for trial as
related to the objections to the probate of the 2015 will.

¶25 As to the claim against the estate, his affidavit fails to establish that
Gary provided any care to his father as part of a contract for personal services for
which George intended to compensate Gary. See Johnson v. Buehler, 81 Wis. 2d
55, 59, 259 N.W.2d 714 (1977) (requiring “an express agreement” for

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compensation). In fact, Gary fails to include any information in his affidavit that
his father even intended to leave the Cembrowski home to Gary, much less that
George intended to leave the Cembrowski home to Gary as compensation for
providing care. Furthermore, as the circuit court pointed out, Gary’s statement in
this regard is illogical because “Gary argues George’s 2004 will bequeathing his
house to him was a reflection of the care he provided to his parents, but his
affidavit states his parents did not require assistance until 2010.”5

¶26 Given the shortcomings of Gary’s response to Susan’s motion, he
has done nothing more than rest on the mere allegations of the original objections
and claim, which themselves lacked any supporting documentation.
Consequently, we conclude that there was no genuine issue of fact left for trial as a
result of Gary’s failure to carry his burden, and we conclude that the circuit court
properly granted summary judgment in favor of Susan and dismissed the
objections and claim against their father’s estate.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

5
Dennis’s affidavit is similarly unhelpful, and in his affidavit, he merely states, “I
believe that my brother Gary should receive the house because he was the primary caretaker of
my parents.”

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