00-3039 Mucek, d/b/a "Alakai Hotel & Suites" v. Nationwide Communications, Inc.

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“In situations where parties fail to respond to requests for admissions, there is a difference between those cases in which a party has cooperated with discovery and those cases, like this one, in which a party has failed to cooperate throughout the pendency of the case. A party’s 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. This proposition is implicitly recognized by several courts which have considered a pattern of discovery abuse when upholding or addressing the denial of a request to withdraw admissions.

“In this case, NCI’s complete failure to cooperate by not responding to interrogatories or requests for documents meant that its failure to respond to requests for admissions left Mucek in the dark regarding what exactly NCI was willing to admit regarding, among other things, NCI’s interaction with its employee Donker, its general level of sales and net worth, and its ongoing practices. No doubt NCI would have denied several of the assertions contained in the request for admissions, but Mucek could not know which items NCI might admit if it made a good faith effort to respond to the requests. When NCI first provided answers to some interrogatories and to requests for admissions on the eve of trial, it was too late to cure the harm because of all the time and money Mucek had already expended attempting to prepare for trial.”

Further, there was no abuse of discretion by the trial court in admitting testimony of other hotel owners who, like plaintiff, had similarly been fraudulently locked in to five-year contracts by defendant.

“Similarly, the testimony of Tylka and Maniak, that they too were sued for breach of contract after voiding their contracts with NCI pursuant to terms added to the contract allowing the contract to be voided at any time, was properly admitted under Wis. Stat. § 904.04(2) and was relevant evidence of the grievous nature of NCI’s conduct.”

We hold that a punitive damages award of $225,000 was reasonable.

Affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Dykman, J. “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 1975.14 I therefore cannot join the majority decision, and accordingly respectfully dissent.”

Dist IV, Sauk County, Evenson, J., Lundsten, J.

Attorneys:

For Appellant: Charles E. Pellino Jr., Madison; Susan C. Blesener, Madison

For Respondent: Jeffrey M. Blessinger, Baraboo