Bank of Two Rivers v. Zimmer ( 1983 )

STEINMETZ, J.

(concurring). I agree with the result in this case; however, I disagree with the application of Schmid v. Olsen, 111 Wis. 2d 228, 236, 330 N.W.2d 547 ; (1983). I dissented to the Schmid decision and still believe the court was in error in that case. However, the admission in that case by failure to answer the demand was for a percentage of negligence which I believe is assessable only after trial and not on a review of an attorney’s file. In the instant case, the matters demanded may have been dispositive of the case; however, they involved the interest of Zimmers in the property and by failing to respond, they acknowledged they had no interest “of record” and no interest whatsoever in the land. That is an entirely different situation from a litigant being asked to admit his or her percentage of negligence before the trial and when failing to respond, being held to that percentage of liability. Of course, even the majority did not believe that in Schmid, since it sent that case back for a new trial. In Schmid the petitioner may have won the legal battle but may lose the legal war.