*1 Rivers, Plaintiff-Respondent, Bank of Two Zimmer, Defendants- and Yvonne Deraid E. Zimmer Appellants-Petitioners, Kuljis, Boyd, Estate Laura Carol Kuljis, G. Dominic A. Boyd Trust, Smiley S. Boyd, Joseph Defendants. Boyd G. S. William Supreme Court April Argued 1983. Decided June 81-768. No. 230.) (Also reported 334 N.W.2d Mary Lou a brief petitioners there was For *2 and Robinson, Appleton, Robinson, and Smith & Robinson argument by Nila Jean Robinson. oral a brief plaintiff-respondent there was For Manitowoc, Haller, Srenaski, P. and Srenaski & Steven argument P. Steven Srenaski. and oral unpublished CECI, J. This is a review of J. LOUIS appeals which affirmed court of decision Deehr, granted by Allan J. Cir- judgments the Honorable plaintiff, county, in Judge favor Manitowoc cuit Dominic (Bank), and defendants Rivers Bank of Two Smiley Boyd, Estate of S. Kuljis, Kuljis, G. Laura Carol Boyd (here- Boyd, Joseph Boyd Trust, G. William S. quiet in a title action. “Kuljis”) inafter referred agree that a courts below Because we with the request respond to a for admission construed failure against party, such and because as a conclusive admission grounds possible for relief from the effect other effectively judgment were not admission or the raised, appeals. we affirm the court of began 25, 1978, September Bank of Two
On Rivers concerning quiet a the Zimmers a title action strip driveway by narrow of land used as the Zimmers many years. alleged The Bank that and their tenants for the Zimmers claimed an interest The Zim- land. answered, asserting possession or, adverse alterna- mers tively, acquired by prescriptive easement use. The an- signed by Attorney Allan The Bank swer was Cain. interrogatories, which In served the Zimmers answered. answers, their the Zimmers set out the basis for their they possession claim of adverse and asserted that had acquired ownership property of on that basis. How- ever, request Bank, for admission from the dated Oc- tober which called the Zimmers admit land, was they had no “of interest record” answered. never August 14, 1980, com- the Bank filed an amended
On bringing in plaint, as additional defendants families, conveyed Boyd Bank who the land to the request new, impleaded defendants mailed a 1976. August 29, This Attorney Cain request the Zimmers to admit had asked in the land. It also went unanswered. interest whatsoever mailing that the showed second The affidavit Attorney the attention of had been sent to for admission given College (103 Ave- The address West Allan Cain. 54911) that of the office nue, Appleton, Wisconsin building Robinson, Robinson had of- & Smith *3 time, given. At the both fices. No suite number was Mary were the Zimmers’ Allan Cain and Lou Robinson attorneys of record.1 summary judgment
The Bank and moved for pursuant 802.08, Stats.,2 to sec. Zimmers’ based 1 record, appear Prom our review of the it not there does attorneys, removing ever a formal substitution of Allan Cain from the case. 2 802.08, Stats., provides part pertinent Section as follows: Availability. Summary judgment. may, (1) party “802.08 A filing complaint within 8 months summons and or scheduling within the time set in 802.10, order under s. for move any claim, counterclaim, cross-claim, or 3rd party by party. claim which is or asserted Amendment pleadings objection is allowed as in cases where or defense is made motion to dismiss. Supporting papers. “(3) Supporting opposing affidavits personal knowledge shall be made on and shall set forth evi- such dentiary Copies facts as would be admissible in evidence. all papers parts or thereof referred to in an affidavit shall be at- therewith, tached already thereto and served if not of record. The may permit supplemented court opposed by affidavits to be or depositions, interrogatories, answers to or further affidavits. a motion When for supported is made and requests for admission. two failure to answer the request unanswered supporting referred to the affidavit ap- record, is it our From review admission. for opposing affida- file an parent did not that the Zimmers timing object motions vit, nor did sup- appropriateness of the or hearing. The trial the motion porting affidavits at re- had failed the Zimmers concluded that because as- the matbers admission, spond to either pur- conclusively admitted deemed serted therein were were 804.11(1) (b)3 and the suant may section, party not rest provided adverse in this pleadings adverse hut allegations denials of the mere or provided in this response, by affidavits or as otherwise genu- showing is a section, specific that there facts must set forth respond, does so If the adverse ine issue for trial. against such appropriate, judgment, be entered if shall party. appear it “(4) Should affidavits unavailable. When opposing can- the motion that the affidavits jus- present facts essential stated affidavit not for reasons may motion for tify party’s opposition, refuse the the court permit to be affidavits or order a continuance discovery to or depositions be had taken or to be obtained just.” make such other order as Stats., provides 804.11(1) (b), as follows: Request (1) for admission. Requests “804.11 admission. requested shall “(b) which an admission Each matter of unless, within separately is admitted The matter set forth. *4 longer or request, days within such shorter of the or after service is may allow, party the to whom the the court time as requesting writ- upon party a the admission the serves directed signed by matter, the objection addressed ten or answer time, a but, the party attorney, unless the shortens or objections required answers or to serve shall not he defendant days the summons and expiration of of 45 after service the before made, objection reasons is the complaint If the defendant. deny specifically the The answer shall stated. therefor shall be answering party why the the reasons forth in detail or set matter fairly deny A denial shall truthfully the matter. admit or cannot admission, good requested when and the substance meet asserting any from the land. barred interest whatever in Accordingly, granted Janu- on was ary 28, T981, favor the and defendants Bank. April, 1981, attorney (Mary
In the Zimmers’ Rob- Lou inson) judgment moved vacate the to and to withdraw admission, 806.07, support pursuant the Stats.4 In sec. judgment, the their motion the vacate argued that the notice of motion for eighteen inadequate given days it before was because was hearing, prescribed 802.08 the whereas the time (2) twenty days. sought The Zimmers relief also grounds neglect of excusable justice, (a) pursuant (1) interests to secs. 806.07 (1) (h). The 806.07 motion to withdraw the grounded (2), provides: on sec. 804.11 Requests “804.11 for admission. . . . “(2) Any matter un- admitted Effect of admission. conclusively der this court on motion statute established unless the permits or withdrawal amendment Subject governing the admission. 802.11 s. amendment pretrial order, a permit the court or withdrawal requires party qualify deny only part faith a an answer or a requested, the matter party of which an admission is shall specify qualify deny so much of it as is true and or the remainder. answering party may An give lack of or information knowl- edge deny party as reason for failure to admit or unless inquiry states he or she had made reasonable and that readily information party or known obtainable is insuffi- party deny. enable party cient to to admit or A who considers matter requested presents that a of which an admission has been may not, ground object issue for trial alone, on that request; subject may, 804.12(3) deny to s. the mat- why ter or deny set forth reasons cannot admit or it.” 806.07(1) (a), provides Stats., as follows: (1) “806.07 Relief from or order. On motion and just, such terms are the court relieve or legal representative judgment, stipulation from a order for the following reasons: “(a) Mistake, inadvertence, surprise, or neglect;” excusable *5 presentation the merits of amendment when of thereby ob- will be and the who action subserved satisfy with- the admission fails to the court that tained prejudice will main- or amendment in drawal taining Any the action or defense on the merits. admis- by party purpose made under sion this section for the pending only of any for action and is not purpose other nor it be used proceeding.” in other response admission, denying the A to the request, this of also filed at truth the statement time. judg- vacate the
The trial court denied motion to finding ment, finding for a of that no reasonable basis neglect excusable had been shown and there was sought grant a sufficient the relief the inter- basis justice. ests appealed summary judg-
The Zimmers then from the plaintiff ment favor of the Bank of Two Rivers. On appeal, contended that the motions for timely supported were not served and were not by appropriate They argued affidavits. the trial failing properly court erred in scrutinize affidavits parties moving summary judgment. Finally, the Zimmers contended that the trial court abused its granting discretion in judgments because questions there were unresolved law fact. appeals
The court of affirmed the trial court.5 The alleged did court not discuss the defects the motions summary judgment, arguments since it deemed these untimely waived as appears raised. that three of these appeals The court although noted that the Zimmers’ notice appeal referred to in favor of the defend ants, only it respect described the order plain issued with tiff. it liberally stated that would construe the notice appeal assume that appeal Zimmers intended to judgments. both *6 appeal, arguments time on were raised for the first the after until five not raised some months the other was ap- hearing. motion The court judge discre- the his peals that trial did not abuse held holding fore- pertinent that of fact were tion all issues request respond to Zimmers’ failure to closed an that had interest property. trial
The
issue on this review is whether
stated
granting
judg-
summary
its
court abused
discretion
ment,
which resulted from
“admissions”
based
respond
requests
for admission.
failure to
defendants’
that
can
first be noted
should
request
respond to a
upon a
failure to
based
v.
case of Schmid
As we held
recent
admission.
228,
(1983),
Olsen,
2d
111
Rule of Procedure Civil 36 Stats., (Rule corresponding 56(c)), like the federal rule provides appropriate that if: interrogatories, pleadings, depositions, “the answers together file, affidavits, admissions with the if any, rial show there is no issue as mate- moving party judg- fact and entitled to ment a matter of law.” question Federal courts have considered proper interplay between the statute and the request for admission statute and have held that sum- mary judgment party’s untimely based or incom- plete response to a appropri- for admission can be ate, since the is deemed to have in effect admitted all therein, though material facts contained even he pleadings. have Shapiro, denied them in his Bernstein & Co., “Log Ass’n,” Inc. v. Supp. 325, Cabin Club 365 F. (N.D. 1973) ; Music, Tadych, Chess W. Va. Inc. 467 F. Supp. (E.D. 1979). agree Wis. We with courts although summary judgment below that is a drastic mandatory remedy, language 804.11(2) can pertinent foreclose all of fact on a motion issues *7 summary judgment.
Having concluded that a can be admission, based on an “admission” in a we must judgment next determine whether appropriate in the case before us. only
We can reverse the trial court’s order
if
trial
the
legal
incorrectly
decided a
issue or material
facts
dispute.
are in
Bryant,
662, 666,
Prince v.
87 Wis. 2d
275
(1979).
proceed by
N.W.2d 676
applying
This court must
standards
the
and methods
802.08(2),
set forth in sec.
Stats., just
apply
as a trial
Thus,
court must
them.
we
summary judgment granted
must affirm in this case:
“ ‘if
pleadings, depositions,
interroga-
answers to
tories,
file, together
and admissions on
with the affi-
davits, if any,
genuine
show that there is no
issue as to
any
moving party
material fact and that
is entitled
”
to a
Publications,
Maynard
as a
matter
law.’
v. Port
Inc.,
555, 558,
98
2dWis.
632 289 Regents Mussallem, v. 2d Board 94 Wis. (1980). the Bank and We believe that N.W.2d 801 met this The affidavit defendants have burden. Zim- question whereby the refers to the “admission” land. having interest of kind in mers admitted dispositive case would be of the whole Such an admission lay disputed effectively previously to rest all and would factual issues. moving prima
If has made a case facie made summary judgment, an examination must then be parties’ whether opposing affidavits to determine competing infer disputed material there exist facts Village arising undisputed v. facts. Howard ences requires Grove, 802.08 Elm 80 2d at Wis. motion, set opposing party, must defeat showing for trial. forth that there issue facts 567; Miles, v. Bros., Kraemer Marshall 2d at Wis. 155, 194 (1972). 2d Wis. N.W.2d case, any oppos- In the instant did not file ing leaving affidavits, thereby open to the themselves possibility that a would rendered Regents them on alone. that basis In Board of Mussallem, 673-74, 94 Wis. 2d at we stated: moving party’s responsibility “While it is the to ini- *8 tially once prima summary judgment, case establish facie party opposition in it is established the not rest to motion allegations the mere or denials pleadings, means, must, by statutory but affidavits or other specific showing set forth facts that there exists requiring (3), issue a trial. 802.08 Sec. Stats. summary judgment opposing Where the . . . fails respond fact, to court raise an issue material trial grant pursuant is authorized to (3) to sub. of sec. 802.08.” After the sup- defendants filed their affidavit port of their judgment, motion for the Zimmers summary judgment was were aware that the motion for respond their failure based Kuljis. appropriate admission from would have been opposing at state that time to facts in an affidavit dispute would of a a material show existence over fact and to state facts which would show should that failing re- relieved from the effect of to answer the quest previously noted, As admission. we have 804.11(2), Stats., provides permit that the court presentation withdrawal of when the. thereby merits will who be subserved and the ob- satisfy tained the admission with- fails to the court maintaining prejudice drawal the action will respond on the merits. Since the Zimmers’ failure to requests oppose for admission their failure effect, result, movants’ in an affidavits abandonment land, ap- claim in the propriate. regard arguments concerning
In
to the Zimmers’
timing
of the motions for
and the
sufficiency
agree
supporting affidavits,
we
with
appeals
the court of
these contentions must be
untimely
deemed
appeal, appellate
waived
raised. On
beyond
courts will not consider issues
those which were
properly preserved before the court
Goranson
below.
v.
ILHR Department,
537, 545,
94 Wis. 2d
STEINMETZ, (concurring). agree J. I with the re- case; sult in disagree however, this I application with the Olsen, of Schmid 228, 236, ; 111 Wis. 2d 330 N.W.2d 547 (1983). I dissented the Schmid decision and still be- lieve the court was in error in that However, case. *9 demand case failure to answer in that negligence I believe percentage of for a of an only not a review after trial and
assessable attorney’s case, demanded file. In instant matters they case; however, in- may dispositive of the have been property volved the interest acknowledged inter- failing they no respond, had the land. est “of record” interest whatsoever litigant entirely from a different situation That negligence percentage being or her to admit asked his being failing respond, held before the trial and when majority percentage liability. even the course, Of Schmid, that case it sent since did believe petitioner have for a new In Schmid back trial. legal legal war. won the battle but lose Agency Wisconsin, Inc. United Farm Plaintiff-Respondent-Petitioner, Klasen, and Janet William Klasen Defendants-Appellants.
Supreme Court April Argued June 1983. Decided No. 81-1284. 110.) reported (Also N.W.2d