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TPR – Request for Admissions

Dane Co. DHS v. Kevin D., 2011AP2748, District 4, 2/2/12

court of appeals decision (1-judge, not for publication); for Kevin: Steven Zaleski; case activity

Kevin’s failure to respond to the County requests for admission, § 804.11(2), led the trial court to deem those requests admitted, and then to grant summary judgment as to grounds based on the “deemed admissions.” The court of appeals rejects Kevin’s challenge to the admissions: he was given adequate notice as to the consequences for failure to respond, ¶15; and, the trial court properly exercised discretion in refusing to allow him to withdraw the admissions, ¶¶17-25 (stressing Kevin’s failure to comply with discovery deadlines and resultant prejudice to the County).

¶24      In Mucek, this court explained that even if the two conditions set forth in subsection (2) are met, a circuit court is not required to permit withdrawal under Wis. Stat. § 804.11.  Id., ¶34.  The withdrawal of admissions under § 804.11 remains at all times a discretionary decision for the circuit court.  Id.  This court went on to state in Mucek that a circuit court’s “general authority to maintain the orderly and prompt processing of cases provides authority to deny withdrawal, apart from the two factors in Wis. Stat. § 804.11(2).”  Id., ¶35.  We concluded that in light of the defendant’s “egregious” conduct, which included a continual failure to cooperate with discovery and with his own counsel, and a failure to cooperate after being sanctioned, denial of the defendant’s motion to withdraw admissions, irrespective of the § 804.11(2) factors, was within the circuit court’s discretion.  Id., ¶36.

¶25      I reach the same conclusions here. Throughout the pendency of the TPR proceeding, Kevin continually failed to cooperate with discovery and with his own counsel.  He was given multiple extensions to respond to discovery and ample opportunity to do so.  However, despite warnings by the court and multiple attempts by his counsel to reach him, Kevin continued with his lack of cooperation.   The circuit court found that there was not an excusable basis for Kevin’s lack of cooperation, and Kevin has provided no basis for me to find otherwise.

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