Mucek v. Nationwide Communications, Inc.

*455DYKMAN, J.

¶ 49. (dissenting). Once in awhile the conduct or character of a litigant so overshadows the merits of a case that the former becomes the reason the litigant cannot be successful at trial. Unfortunately, this is such a case.

¶ 50. The majority's analysis of this case, at its core, is this: Mucek satisfied the prejudice requirement of Wis. Stat. § 804.11(2)1 (1999-2000) by telling the trial court of NCI's egregious behavior during discovery. And even if Mucek did not prove prejudice, the trial court had discretion to deny NCI's motion to withdraw its admissions in order to control its docket and as another sanction for NCI's discovery violations.

¶ 51. I disagree that Mucek met her burden of proving prejudice. There is nothing of record to support the majority's de novo conclusion that she did. There is a logical disconnect when the majority imports the concept of egregious behavior into a statute that uses other factors for its analysis. I conclude that the trial court erroneously exercised its discretion by doing so, and that the majority's attempt to construct a meaning for Wis. Stat. § 804.11(2) to remedy the difficulty gives breadth to the statute that the supreme court could not have anticipated when it adopted § 804.11 in 1975.2 I therefore cannot join the majority decision, and accordingly respectfully dissent.

¶ 52. To begin with, I agree that NCI is an unsympathetic litigant. Discovery disputes are frustrating to trial courts, and litigants who fail to provide infor*456mation in response to discovery demands continually plague trial court calendars. That is what NCI did, and it paid a price for doing so. As a sanction, the trial court struck NCI's answer to Mucek's complaint. The result was that NCI admitted liability to Mucek, leaving only the issue of damages for the jury to decide.3 NCI has not appealed this sanction, conceding that Mucek was entitled to the $4,300 she had paid to attorneys in Michigan to contest NCI's suit against her there.

¶ 53. But the issue in this case was not the actual damages Mucek had incurred, it was the punitive damages she wanted because of the conduct of an NCI employee, James Donker. The purpose of punitive damages is to punish a wrongdoer and deter the wrongdoer and others from similar wrongdoing. Fahrenberg v. Tengel, 96 Wis. 2d 211, 234, 291 N.W.2d 516 (1980). So what this lawsuit was about was Mucek's assertion that NCI had engaged in egregious business practices, contrasted with NCI's defense that it was a victim of Donker, and that his conduct was intended to benefit Donker and hurt NCI. Because NCI had defaulted on the merits, this case was only about damages.

¶ 54. I agree with the majority that the controlling statute is Wis. Stat. § 804.11(2) and that we review the trial court's application of this statute under an erroneous exercise of discretion standard. See Schmid v. Olson, 111 Wis. 2d 228, 237, 330 N.W.2d 547 (1983). The supreme court explained what is necessary for a proper exercise of discretion in Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981):

*457A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Additionally, and most importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.

¶ 55. I also agree that the test for permitting withdrawal of admissions is in two parts, both of which must be satisfied: (1) presentation of the merits of the action must be subserved; and (2) the party who obtained the admission must not be prejudiced by the withdrawal. Unlike the majority, however, I believe that both were satisfied, and, therefore, the trial court should have permitted NCI to withdraw its admissions. Neither the trial court nor the majority address whether presentation of the merits would be subserved as they both conclude that Mucek would have been prejudiced. But no one can dispute that the merits would have been facilitated had NCI been allowed to withdraw its admissions. NCI was forced to admit that it had engaged in all sorts of unethical and malicious behavior against Mucek, directly related to her punitive damage claim. Allowing the jury to consider NCI's actual behavior, which may or may not have been the same as the behavior admitted in Mucek's requests, would subserve the merits of the case.4

*458¶ 56. In addressing the prejudice element of Wis. Stat. § 804.11(2), the majority writes: "It is evident that the trial court in this case exercised its discretion to deny withdrawal under the view that Mucek had met her burden of showing prejudice. Furthermore, the trial court's assessment of prejudice took account of NCI's ongoing failure to cooperate with discovery." Majority at ¶ 27 (footnote omitted). These sentences are the crux of the problem here, and I will address each in turn.

¶ 57. First, I agree with the majority's implicit conclusion that Wis. Stat. § 804.11(2) placed the burden on Mucek to show that she was prejudiced. The statute provides, "and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action .. . ." See also 3 Grenig & Harvey, Wisconsin Practice: Civil Procedure § 411.5 (2d ed. 1994) ("A party seeking to block the withdrawal or amendment of an admission must show that the withdrawal or amendment would prejudice the party's efforts to present the merits of its case.") (emphasis added).

¶ 58. But the majority fails to explain its conclusion that the trial court believed that "Mucek had met her burden of showing prejudice." Majority at ¶ 27.5 *459The opposite is true. The record shows that the trial court believed the burden was on NCI to show that Mucek was not prejudiced rather than on Mucek to demonstrate that she was. In denying permission to withdraw NCI's admissions, the court said:

Rarely have I really seen such egregious conduct on the part of a defendant and to come in at the last moment and say the other side is not prejudiced and we should be able to essentially reopen this matter simply doesn't carry any weight with me. I do agree with counsel for the plaintiff that the affidavit submitted sets forth no basis upon which — first hand basis upon which defendant explains the conduct and lack of performance according to the procedural rules of this case and the State.

¶ 59. By stating that NCI's assertion of no prejudice "doesn't carry any weight with me" and concluding that NCI had failed to present a good reason for failing to answer the requests for admission, the trial court placed the burden on NCI to show that Mucek was not prejudiced. Placing the burden of proof on the wrong party is an error of law. Errors of law constitute an erroneous exercise of discretion. Johnson Bank v. Brandon Apparel Group, Inc., 2001 WI App 159, ¶ 9, 246 Wis. 2d 840, 846, 632 N.W.2d 107.

¶ 60. I also do not understand how the majority reaches its conclusion that "it is evident" that Mucek satisfied her burden of showing prejudice. There is nothing in the record supporting this conclusion. Asserting that something is evident does not make it so. We will -reverse a trial court's decision as an erroneous exercise of discretion if it is not supported by the facts of record. Id. at ¶ 8.

*460¶ 61. In arguing that she would be prejudiced, Mucek's attorney stated: "In the event that we have to prove all those allegations, we would have — my client would be entirely prejudiced by having to essentially start over from scratch." This explanation gives us no facts to analyze, only a conclusion to accept or reject without analysis.

¶ 62. Proving prejudice involves more than an assertion that one would have to "start over from scratch." In considering the prejudice requirement of Wis. Stat. § 804.11, the supreme court has looked for guidance to federal case law interpreting Fed. R. Civ. E 36(b), upon which § 804.11(2) is based. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 630-31, 334 N.W.2d 230 (1983); Schmid, 111 Wis. 2d at 238-39. Under this jurisprudence, Mucek was required to show that allowing NCI to withdraw its admissions would create difficulty in proving her case because of a sudden need to obtain evidence, the unavailability of a key witness, or inability to prepare. See Manatt v. Union Pac. R.R. Co., 122 F.3d 514, 517 (8th Cir. 1997); Brook Vill. N. Assocs. v. General Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982); Schmid, 111 Wis. 2d at 239. But Mucek did not contend that she would be unable to obtain a witness or other evidence that would be necessary to prove her case as a result of NCI being permitted to withdraw its admissions. Mucek's counsel asserted that his ability to prepare for trial would be impaired, but he did not begin to indicate how this was so. He only stated that he had prepared for trial "by sending requests for admission" and that he "gave up on setting up to prove all those allegations."

¶ 63. If Mucek's attorney was asserting that his sole preparation for trial had been to send requests for admission and therefore he would be unable to prepare *461for trial as a consequence, this would demonstrate ineffective assistance of counsel much more than it would show prejudice.6 Mucek did not serve NCI with the requests for admission until June 19, 2000— eighteen months after she initiated the lawsuit and less than two months before trial was scheduled to begin. The deadline for NCI to respond was July 18, three weeks before trial. Therefore, Mucek could not have "[given] up on setting up to prove all those allegations" until after that date, when discovery and preparation for trial should have been nearly completed. In the preceding nineteen months, Mucek should have been obtaining the evidence necessary to prove those facts. Further, NCI moved to withdraw its admissions on July 24, less than a week after the deadline had passed. This was not a case where a party admitted facts at the beginning of discovery, affecting the strategy of the opposing party, and then attempted to withdraw the admissions in the middle of trial.

¶ 64. The motion hearing was held on August 4. At the very most, Mucek lost thirteen business days— out of a total of more than 400 — to prove the facts that had been admitted. It is difficult' for me to accept that all of Mucek's discovery hinged on that short time period. Further, Mucek has never indicated, either at the motion hearing or in her appellate brief, *462how those thirteen days would have made a difference in helping her to prove the admitted facts or how she would have used them differently had the facts not been admitted.

¶ 65. It is easy for Mucek or her attorneys to make vague references to the prejudice Mucek would suffer if she had to prove the assertions admitted when NCI failed to answer Mucek's requests for admission. But, "prejudice in the air" or "assumed prejudice" is not enough. She was required to explain what evidence she would have produced but now could not because she had relied on the admissions. More specifically, Mucek should have provided answers to questions similar to: Was Mucek hot on the trail of a disgruntled NCI ex-employee when the requests were deemed admitted? Was she about to schedule a conference with the Michigan attorney general? Had she planned on telephoning the Michigan newspaper that investigated NCI? If she cut short these efforts, which would have to be completed in three weeks, why did she fail to tell this to the trial court?

¶ 66. Ultimately the only "prejudice" that Mucek showed was that she would have to prove the facts that NCI had erroneously admitted. But, as the majority recognizes, having to prove facts that would otherwise have been admitted is not sufficient to demonstrate prejudice under the statute. See Bergemann v. United States, 820 F.2d 1117, 1121 (10th Cir. 1987) ("The prejudice contemplated by Rule 36(b) is not simply that the party who obtained the admission now has to convince the jury of the truth."). If a requesting party could show prejudice by proving that he or she would have to prove the admitted facts, then prejudice would be demonstrated in every case.

*463¶ 67. The difficulty with the trial court's placing the burden of proof on the wrong party thus becomes evident. Had an inquiry been made of Mucek's attorney regarding what witnesses or evidence he would need to produce if the trial court granted NCI's motion, the majority or I could review the answers or reasons given to see whether they would support Mucek's claim of prejudice.7 Had the burden been placed upon Mucek, we could now review what Mucek's attorneys "gave up on setting up to prove all those allegations." But we cannot review Mucek's demonstration of prejudice because she did not make one. As a result, I conclude Mucek failed to meet her burden to show prejudice under Wis. Stat. § 804.11(2).

¶ 68. The majority apparently agrees that Mucek failed to show that she would be unable to prepare for trial, or obtain evidence or witnesses if the trial court permitted withdrawal, as the majority opinion is silent on this issue and fails to point to any portion of the record to the contrary. Rather than conclude that Mucek demonstrated prejudice in the traditional sense of the word, the majority concludes that, in considering the prejudice element, the trial court "took account of NCI's ongoing failure to cooperate with discovery," and that "a trial court may consider a party's history of discovery abuse when deciding whether to permit withdrawal or amendment of admissions .... when determining prejudice under [Wis. Stat.] § 804.11(2)." Majority at ¶¶ 27-28.

¶ 69. I agree with the majority that the trial court considered NCI's past "egregious conduct" in denying NCI's motion to withdraw its admissions. I disagree, *464however, that Wis. Stat. § 804.11(2) allows the trial court or this court to consider NCI's history of discovery abuse in the way that they have. First, it cannot be disputed that "egregious conduct" is not a factor that § 804.11(2) permits trial courts to consider. Rather, the plain language of §804.11(2) places the required focus on two factors: the effect upon the litigation and prejudice to the resisting party. See FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994) ("FRCP 36(b) does not require the moving party to prove excusable neglect") (quoting 10A Federal Procedure L.Ed. § 26.500 (1988)). Therefore, neither NCI's past discovery violations nor the reasons for NCI's failure to respond to the requests for admission were relevant to the trial court's consideration of the factors under § 804.11(2).8 By adding *465factors to a rule adopted by the supreme court, the majority has usurped a right held only by that court. The court of appeals has no rule making authority, and certainly cannot amend supreme court rules.

¶ 70. Second, the trial court did much more than "take account" of NCI's past conduct in determining prejudice; it substituted the concept of "egregious conduct" for that of "prejudice." To the extent that the trial court considered NCI's past discovery abuses, this was the only factor that the court considered.

¶ 71. The majority converts the trial court's consideration of NCI's past "egregious conduct" into one of prejudice by stating that NCI's failure to cooperate with previous discovery requests worked to "magnify" the prejudice. Majority at ¶ 31.9 But no matter how many *466times one "magnifies" zero, the result is still zero.10 The majority does not and cannot show that Mucek demonstrated a small amount of prejudice that was magnified by NCI's discovery violations. Mucek made no showing of prejudice at all. The majority speculates how Mucek, or similar parties in her place, could have been prejudiced, but never indicates where in the record Mucek demonstrated that she was prejudiced.

¶ 72. Further, referring to the prejudice suffered by Mucek as a result of NCI's "fail[ure] to cooperate throughout the pendency of the case" is also insufficient. I agree that Mucek's ability to gather facts was significantly impaired by NCI's past discovery violations. But that is not the test under Wis. Stat. § 804.11(2). Rather the statute required Mucek to demonstrate how withdrawing the admissions would hurt her ability to prepare for trial. The statute no more permits substituting past prejudice for current prejudice than it allows replacing prejudice with "egregious conduct."

¶ 73. The majority next concludes that because Wis. Stat. § 804.11(2) uses the word "may," trial courts are not required to permit withdrawal even if both statutory conditions are met. Majority at ¶ 34. Al*467though I agree that the language of the statute is permissive and thus contemplates discretion, I find it difficult to contemplate instances where it would be a proper exercise of discretion to deny a motion to withdraw an admission when withdrawal would both further the merits and the opposing party would not be prejudiced. Federal appellate courts considering this issue generally agree that trial courts must permit withdrawal when both elements of the test are satisfied. See, e.g., FDIC v. Prusia, 18 F.3d 637 (8th Cir. 1994); Hadley v. United States, 45 F.3d 1345 (9th Cir. 1995).11 I conclude that the discretion contemplated by § 804.11(2) is with regard to the trial court's determination whether prejudice exists or whether the merits would he subserved, not discretion to deny permission to withdraw when the statutory requirements have been met. See Grenig & Harvey, supra, at § 411.5 ("Courts have considerable discretion whether to permit withdrawal or amendment, hut that discretion must *468be exercised within the two-step test in Section 804.11(2).") (emphasis added).

¶ 74. Even if there are instances where trial courts may refuse permission to withdraw despite both elements being met, I still disagree with the majority. The majority concludes that "[a] trial 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)." Majority at ¶ 35. There is no indication in the record that the trial court based its decision on a need "to maintain the orderly and prompt processing of cases." Instead, the record shows that the trial court was applying the elements of the statute as it interpreted them. What the majority has done is to manufacture the trial court's calendar for it, and then conclude that the invented calendar justified the trial court's decision.

¶ 75. The trial court might have concluded that denying permission to withdraw would help control its docket. But the problem with affirming a trial court's decision not to permit a Wis. Stat. § 804.11(2) withdrawal based upon judicial economy is that judicial economy will be furthered in every case. If the trial court has already determined that permitting withdrawal would subserve the merits, refusing to permit withdrawal will invariably tend to resolve the case more quickly than a trial on the merits. Therefore, permitting judicial economy as a factor to decide § 804.11(2) motions gives absolute discretion in denying motions to withdraw, something which trial courts possess in no other circumstance.

¶ 76. The majority next refers again to NCI's past discovery abuse as providing the trial court with justification to deny permission to withdraw. It refers to the court's inherent and statutory authority to sanction *469parties for failing to comply with procedural rules and court orders. I agree that the authority of trial courts to sanction parties for litigation misconduct is important, and necessary in maintaining the administration of justice. See Schultz v. Sykes, 2001 WI App 255, ¶ 2, 248 Wis. 2d 746, 638 N.W.2d 604. But the majority adopts a test permitting a trial court to base its decision under Wis. Stat. § 804.11(2) solely on the party's past behavior without any consideration of the factors in the statute. I believe it is erroneous to consider only past conduct and ignore the elements provided in the statute as the majority does here. See Schmid, 111 Wis. 2d at 237 ("It is well established that a decision which requires the exercise of discretion and which on its face demonstrates no consideration of any of the factors on which the decision should be properly based constitutes an abuse of discretion as a matter of law."); see also Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1313-14 (8th Cir. 1983) (concluding that district court erred in denying plaintiffs motion to withdraw its admissions under Rule 36(b) when the court based its decision, not on factors set out in the rule, but instead on the "pattern of delay" demonstrated by the plaintiff and her propensity to "flout" time limits).

¶ 77. Even if such consideration were permissible in some cases, it would not be so here, where the trial court's reference was to NCI's behavior prior to receiving Mucek's request for admissions. I agree that NCI's refusal or neglect to comply with discovery demands was egregious. But this does not mean that NCI's reasons for failing to respond to Mucek's requests for admissions were similarly egregious. The majority insists that NCI "continued its pattern of abuse" even after the trial court struck its answer in April 2000. Majority at ¶ 33. But the majority fails to point to even *470one example of this, and quotes only the observation by Mucek's attorney at the first day of trial that "NCI has done nothing to cooperate with getting plaintiff discovery or any facts regarding this case." It is doubtful that there is such an example, as the record does not indicate that Mucek made any further discovery requests of NCI between April 2000 and when she sent the requests for admission in June. Therefore, even assuming that it was appropriate for the trial court to consider NCI's behavior in deciding NCI's motion to withdraw, it should have limited its consideration to the conduct occurring after Mucek served NCI with the requests for admission.

¶ 78. In considering an appropriate sanction, trial courts should consider whether there are less severe sanctions that would effectively deter the conduct. Schultz, 2001 WI App 255 at ¶ 19; see also Hadley, 45 F.3d at 1350; Wright & Miller, supra, at § 2264 ("[C]ourts should explore the possibility that prejudice can be avoided by imposing other conditions rather than holding a party to an untrue or unintended admission on a vital issue in a case."). Here, the trial court failed to consider any alternatives to refusing permission to withdraw the admissions.

¶ 79. The fact that NCI perpetuated discovery abuses does not mean we can ignore a statutory requirement intended to protect litigants from being deprived of their right to have a case decided on the merits. Courts have an obligation to follow appropriate procedures in reaching decisions, even in cases involving unsympathetic litigants. I agree with the court in King v. Kelly, 137 So. 2d 808, 814 (Miss. 1962), which stated:

The man trained in the law will know that we are protecting and preserving for everyone — good, bad or *471indifferent — one of the standard safeguards provided for the assurance of a fair trial in all cases. If it should be ignored here, it is destroyed and will not exist at the time of the next trial, regardless of who is the defendant.

¶ 80. The right to be heard on the merits is even more important when the merits involve issues regarding damages. We held in Smith v. Golde, 224 Wis. 2d 518, 530-31, 592 N.W.2d 287 (Ct. App. 1999), that even defaulting defendants are entitled to contest the amount of damages, which we termed a "substantial and fundamental right." Therefore, whatever discretion a trial court possesses to deny permission to withdraw admissions when both elements of Wis. Stat. § 804.11(2) have been met, this discretion is extremely limited if not eliminated by Golde when a party has inadvertently admitted facts that are related only to a damages claim.12

*472¶ 81. In sum, because the merits would have been furthered by permitting withdrawal and Mucek failed to show that permitting withdrawal would have prejudiced her, I would reverse and remand for a new trial, allowing NCI to withdraw its admissions.

¶ 82. There is a further reason why I believe the trial court should have allowed NCI to withdraw its admissions and why Wis. Stat. § 804.11(2) should be construed so as not to unnecessarily deprive a party of the opportunity to be heard on the merits. Although both federal and Wisconsin law recognize that requests for admission may be used to establish "ultimate issues," Judicial Council Committee's Note, 1974, Wis. Stat. § 804.11; Zimmer, 112 Wis. 2d at 630; Schmid, 111 Wis. 2d at 236, when these admissions are made inadvertently, courts should allow withdrawal upon motion unless the resisting party can demonstrate real prejudice. See Smith v. First Nat'l Bank of Atlanta, 837 F.2d 1575, 1577-78 (11th Cir. 1988).

¶ 83. The purpose of Wis. Stat. § 804.11 is to:

[E]xpedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial, the truth of which is known to the parties or can be ascertained by reasonable inquiry.
Requests for admission define and limit the contro*473versy between parties to a lawsuit, freeing the court and the parties to concentrate on the matters at the heart of the dispute.

3 Grenig & Harvey, supra at § 411.1 (emphasis added). In other words, requests for admission are intended to save time and resources by allowing parties, generally during the beginning of discovery, to stipulate to undisputed facts so that they can focus on core issues. They are not meant to be used as a last minute ambush to short circuit a trial. Thus, when parties are denied permission to withdraw erroneous admissions that are central to the merits and are in fact disputed, this subverts the purpose of the statute.13

¶ 84. Particularly in this case, refusing to allow NCI to withdraw its admissions only encourages parties to use requests for admissions in ways for which they were never intended.14 Here, Mucek's attorneys could *474not have seriously expected an affirmative answer to a request to admit that NCI intentionally files frivolous lawsuits against its customers to maliciously harass and intimidate them into continuing to use NCI's services, and similar requests. The attorneys could have had but one rational expectation: that NCI might not respond to the requests within thirty days, and since the time for trial was at hand, they could assert prejudice and perhaps prevail. This expectation was enhanced by their knowledge that NCI's attorney had withdrawn, and that NCI was, they believed, unrepresented. They expected, if they were lucky, a Turkey shoot, and they got one. This was not a lawsuit, the purpose of which is to find the truth. This was a game, and its name was "Gotcha." NCI was certainly had. Although the trapped party in this case may have been a large corporation with a history of discovery abuse, it is likely that pro se or inexperienced litigants will be the ones who are most often injured by the majority's judicial policy against withdrawing admissions.

¶ 85. No one can say how this case would have turned out had it been tried without the Wis. Stat. § 804.11 admissions. It is difficult to reward a litigant that has thumbed its corporate nose at a plaintiff, her attorneys, and the court by stonewalling all requests for discovery. NCI has suffered a $225,000 *475judgment against it, a matter that concerns me somewhat. However, what has suffered most in this case is the appearance of justice, and that concerns me much more. We attempt to maintain a system of justice that not only produces a fair result, but also gives the appearance of being fair. State v. Love, 218 Wis. 2d 1, 10, 579 N.W.2d 277 (Ct. App. 1998), rev'd on other grounds, 227 Wis. 2d 60, 594 N.W.2d 806 (1999). While I cannot know if the former test is met here, it is clear to me that the latter is not. Because Mucek failed to show what evidence she would have produced had NCI answered her requests to admit, she could not satisfy the court that she would be prejudiced in maintaining her action were the trial court to permit NCI to withdraw its admissions. Were I writing for the majority, I would so conclude, and remand for a new trial. But I am not, and accordingly, I respectfully dissent.

All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. The Wisconsin Court of Appeals Style Manual provides that we refer to supreme court rules, other than those found in Wis. Stat. ch. 809, as statutes, and we do so in this opinion.

See S. Cr. ORDER 67 Wis. 2d 585, 682-84 (eff. Jan. 1,1976).

This was a significant sanction. Generally, under the American rule, a successful litigant is not entitled to recover attorney's fees from the loser. See City of Beloit v. Town of Beloit, 47 Wis. 2d 377, 392, 177 N.W.2d 361 (1970).

A number of the requests for admission did not go directly to the merits. For example, request to admit number one stated: "That attached hereto as Exhibit 'A' is a true and correct copy of the actual [agreement] entered into between plaintiff and defendant." Withdrawing admissions such as these would not necessarily subserve the merits. Therefore, the trial court *458would not have erroneously exercised its discretion in refusing to permit withdrawal of the admission to request number one, and other requests that were not disputed and did not go to the merits of the punitive damage claim. That would be a proper use of Wis. Stat. § 804.11(2).

The majority guesses that the trial court properly placed the burden of proving prejudice on Mucek at an off-the-record conference held just prior to the on-the-record conference of August 3, 2000. Were I permitted to gaze into that crystal ball, I would reach the opposite conclusion. However, we are not permitted to consider matters not of record in the trial court. *459South Carolina Equip., Inc. v. Sheedy, 120 Wis. 2d 119, 125-26, 353 N.W.2d 63 (1984). So I do not.

The record demonstrates, however, that this was not what Mucek's attorneys had done. If Mucek's attorneys were willing to rely totally on NCI's Wis. Stat. § 804.11 admissions, they would have read the admissions and rested. But they did not, instead calling three witnesses, Mucek, a resort owner and a hotel owner who testified as to the legal difficulties they encountered by entering a NCI contract submitted to them by James Donker. Even at this late stage, we are not told what other witnesses Mucek would have called.

But it was not the duty of the trial court or opposing counsel to make Mucek's case for her.

In footnote six of its opinion, the majority cites several federal and out-of-state cases that it contends supports its conclusion that past discovery violations are a relevant consideration under Wis. Stat. § 804.11(2). See United States v. Kenealy, 646 F.2d 699, 702-03 (1st Cir. 1981); ADM Agri-Industries, Ltd. v. Harvey, 200 F.R.D. 467, 471 (M.D. Ala. 2001); United States Clip Corp. v. McThal, Inc., 729 S.W.2d 658, 660 (Mo. Ct. App. 1987); Cleveland Trust Co. v. Willis, 485 N.E.2d 1052, 1053-54 (Ohio 1985). I disagree that any of these decisions provides authority for the majority's conclusion in the case before us.

The majority cites to only one federal court of appeals decision, Kenealy. But it is not clear that the defendant in Kenealy ever moved to withdraw his admissions under Fed. R. Civ. E 36(b) and the First Circuit ignored the standard for permitting withdrawal under the rule. Therefore, Kenealy is of no use in deciding this case. Cleveland Trust similarly failed to consider the two factor test. Although McThal did refer in passing to the prejudice requirement, it failed to give a reasoned explanation of its decision or provide any citation to other authority. Harvey was a federal district court decision, and the *465majority relies on several other district court decisions throughout its opinion. However, the issue at the heart of this case is whether the trial court properly exercised its discretion in refusing to permit NCI to withdraw its admissions. For obvious reasons, the weight of district court decisions regarding the scope of their own discretion is questionable, even as persuasive authority.

The majority writes that an "ongoing failure to provide documents and information will frequently magnify the importance of requests for admissions precisely because the requesting party has already been deprived of requested information and is all the more dependent on admissions to identify what is actually in dispute." Majority at ¶ 31.

First, I note that a request for admission "is not a discovery procedure at all, since it presupposes that the party proceeding under it knows the facts or has the document and merely wishes its opponent to concede their genuineness." 8A Wright & Milleü, Federal Peactice and ProceduRE § 2253 (1994). Because requests for admission are not intended as vehicles to discover facts, it makes no sense to rely on them more heavily when other discovery procedures fail. Second, I find unpersuasive the *466majority's suggestion that Mucek was "left in the dark" regarding whether many of the requests for admission were in fact disputed. There could have been no doubt in Mucek's mind that NCI disputed that "NCI commenced the Michigan Lawsuit for the purpose of maliciously harassing and intimidating the plaintiff into continuing to use NCI's services." As I will discuss further in ¶ 84, many of the requests to admit did not serve the purpose of limiting the case to core issues, but rather to eliminate core disputed facts directly related to the merits.

See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976).

The cases the majority cites in support of its proposition also seem hard pressed to explain what non-statutory factors a trial court may consider in the context of motions to withdraw admissions. The statements made by the courts in both Carney v. Internal Revenue Service, 258 F.3d 415, 419 (5th Cir. 2001), and United States v. Kasuboski, 834 F.2d 1345, 1349-50 (7th Cir. 1987), were not directly related to the merits of the case. In neither case did a party attempt to withdraw admissions under Rule 36(b), so the courts did not consider what a court's discretion under the rule entailed. The court in Donovan v. Carls Drug. Co., 703 F.2d 650 (2nd Cir. 1983), did affirm the district court's decision to deny permission to withdraw. Id. at 652. However, the court did not consider the two factors listed in Rule 36(b) and provided no limitations on a court's exercise of discretion, suggesting the clearly incorrect conclusion that such discretion was unbounded.

The trial court attempted to comply with the mandate of Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), by permitting NCI to present evidence regarding the punitive damages despite its admissions. The difficulty that NCI's admissions created at trial, however, was evident. Because of the Wis. Stat. § 804.11 admissions, NCI's president was forced to answer questions such as 'You did not deny this statement: That NCI commenced the Michigan lawsuit involving Miss Mucek with full knowledge that the modified contract was not the contract signed by the plaintiff, did you?" NCI's president, faced with his § 804.11 admission, could only answer by stating that he did not deny the statement, nor did he admit it. This was not lost on the jury. It sent a note to the trial court asking: "Where did the statements of admittance from NCI come from and what was their context? These were the 3 or 4 statements that were read to Mr. Makens [NCI's president] in which he said he neither admitted nor denied them." The court responded: "These statements were made on the basis of *472questions submitted to NCI by the plaintiff which were not answered, thus are considered under the law to be admitted." Two jurors dissented from the ensuing verdict.

This shows that discretion to deny permission to withdraw admissions regarding facts related to a damages claim and Golde are incompatible. Rather than place jurors in the confusing setting they were forced into in this case, trial courts should permit withdrawal when both elements of Wis. Stat. § 804.11(2) are met.

As one commentator has pointed out, a refusal to permit withdrawal of inadvertent admissions of central issues will often ultimately lead to the expenditure of more rather than less court time as the losing party is likely to file a malpractice action against his or her attorney. See Shirley Engel, Requests for Admission — A Discovery Trap, 18 UWLA L. Rev. 61, 75 (1986).

For a more detailed explanation of the improper use of requests to admit, see Elston v. City of Turlock, 695 P.2d 713, 720 (1985) (Kaus, J., concurring); see also Engel, supra note 13. Engel summarizes the reasons courts have given in strictly construing request-for-admission statutes:

1. The law abhors a forfeiture and requires strict construction of statutes imposing forfeiture.
. 2. The policy of the law is to try cases on their merits in order to-‘do justice.
3. Requests for admission are not true discovery devices. They serve a function similar to pleadings in a lawsuit. Because *474they are designed to settle issues rather than discover facts and because they are often used as a vehicle for summary judgment, the procedure regarding them must be strictly construed to do justice.
4. Imposing default where the requests do not seek to set issues to rest hut seek to cause [a party] to admit he has no case is an unduly harsh penalty and results in a windfall to [the other party].

Engel, supra note 13, at 74.