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06/01/83 BANK TWO RIVERS v. DERALD E. ZIMMER AND

June 1, 1983

BANK OF TWO RIVERS, PLAINTIFF-RESPONDENT,
v.
DERALD E. ZIMMER AND YVONNE ZIMMER, DEFENDANTS-APPELLANTS-PETITIONERS, DOMINIC A. KULJIS, LAURA KULJIS, CAROL G. BOYD, ESTATE OF SMILEY S. BOYD TRUST, WILLIAM S. BOYD AND JOSEPH G. BOYD, DEFENDANTS



Review of a decision of the Court of Appeals. Affirming Louis J. Ceci, J. Steinmetz, J. (concurring).

The opinion of the court was delivered by: Ceci

This is a review of an unpublished decision of the court of appeals which affirmed summary judgments granted by the Honorable Allan J. Deehr, Circuit Judge of Manitowoc county, in favor of the plaintiff, Bank of Two Rivers (Bank), and defendants Dominic Kuljis, Laura Kuljis, Carol G. Boyd, Estate of Smiley S. Boyd Trust, William S. Boyd, and Joseph G. Boyd (hereinafter referred to as "Kuljis") in a quiet title action. Because we agree with the courts below that a party's failure to respond to a request for admission is construed as a conclusive admission against such party, and because other possible grounds for relief from the effect of the admission or the summary judgment were not effectively raised, we affirm the court of appeals.

On September 25, 1978, the Bank of Two Rivers began a quiet title action against the Zimmers concerning a narrow strip of land used as a driveway by the Zimmers and their tenants for many years. The Bank alleged that the Zimmers claimed an interest in the land. The Zimmers answered, asserting adverse possession or, alternatively, a prescriptive easement acquired by use. The answer was signed by Attorney Allan Cain. The Bank served interrogatories, which the Zimmers answered. In their answers, the Zimmers set out the basis for their claim of adverse possession and asserted that they had acquired ownership of the property on that basis. However, a request for admission from the Bank, dated October 24, 1978, which called upon the Zimmers to admit that they had no interest "of record" in the land, was never answered.

On August 14, 1980, the Bank filed an amended complaint, bringing in as additional defendants the Kuljis and Boyd families, who conveyed the land to the Bank in 1976. The new, impleaded defendants mailed a request for admission to Attorney Cain on August 29, 1980. This request asked the Zimmers to admit that they had no interest whatsoever in the land. It also went unanswered.

The affidavit of mailing showed that the second request for admission had been sent to the attention of Attorney Allan Cain. The address given (103 West College Avenue, Appleton, Wisconsin 54911) was that of the office building in which Robinson, Smith & Robinson had offices. No suite number was given. At the time, both Allan Cain and Mary Lou Robinson were the Zimmers' attorneys of record. *fn1

The Bank and Kuljis moved for summary judgment pursuant to sec. 802.08, Stats., *fn2 based upon the Zimmers' failure to answer the two requests for admission. The supporting affidavit referred to the unanswered request for admission. From our review of the record, it is apparent that the Zimmers did not file an opposing affidavit, nor did they object to the timing of the motions for summary judgment or the appropriateness of the supporting affidavits at the motion hearing. The trial court concluded that because the Zimmers had failed to respond to either request for admission, the matters asserted therein were deemed conclusively admitted pursuant to sec. 804.11(1) (b) *fn3 and the Zimmers were barred from asserting any interest whatever in the land. Accordingly, summary judgment was granted on January 28, 1981, in favor of the Kuljis defendants and the Bank.

In April, 1981, the Zimmers' attorney (Mary Lou Robinson) moved to vacate the judgment and to withdraw the admission, pursuant to sec. 806.07, Stats. *fn4 In support of their motion to vacate the judgment, the Zimmers argued that the notice of motion for summary judgment was inadequate because it was given eighteen days before the hearing, whereas the time prescribed by sec. 802.08(2) is twenty days. The Zimmers also sought relief from the judgment on grounds of excusable neglect and in the interests of Justice, pursuant to secs. 806.07(1) (a) and 806.07(1) (h). The motion to withdraw the admission was grounded on sec. 804.11(2), which provides:

"804.11 Requests for admission.. . .

"(2) Effect of admission. Any matter admitted under this statute is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to s. 802.11 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding."

A response to the request for admission, denying the truth of the statement in the request, was also filed at this time.

The trial court denied the motion to vacate the judgment, finding that no reasonable basis for a finding of excusable neglect had been shown and that there was not a sufficient basis to grant the relief sought in the interests of Justice.

The Zimmers then appealed from the summary judgment in favor of the plaintiff Bank of Two Rivers. On appeal, they contended that the motions for summary judgment were not timely served and were not supported by appropriate affidavits. They argued that the trial court erred in failing to properly scrutinize the affidavits of the parties moving for summary judgment. Finally, the Zimmers contended that the trial court abused its discretion in granting the summary judgments because there were unresolved questions of law and fact.

The court of appeals affirmed the trial court. *fn5 The court did not discuss the alleged defects in the motions for summary judgment, since it deemed these arguments waived as untimely raised. It appears that three of these arguments were raised for the first time on appeal, and the other was not raised until some five months after the summary judgment motion hearing. The court of appeals held that the trial Judge did not abuse his discretion in holding that all pertinent issues of fact were foreclosed by the Zimmers' failure to respond to the request for an admission that they had no interest in the property.

The stated issue on this review is whether the trial court abused its discretion in granting summary judgment, based upon "admissions" which resulted from the defendants' ...


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