Taft Parsons, Jr. v. Associated Banc-Corp

2017 WI 37

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2581
COMPLETE TITLE: Taft Parsons, Jr. and Carol Parsons,
Plaintiffs-Appellants,
v.

Associated Banc-Corp,
Defendant-Respondent-Petitioner,

XYZ Insurance Company,
Defendant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
2016 WI App 44
Reported at: 370 Wis. 2d 112, 881 N.W.2d 793

OPINION FILED: April 13, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 2, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen

JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. joined by ABRAHAMSON, J.
dissents (opinion filed).
NOT PARTICIPATING: KELLY, J. did not participate.

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs
by Robert G. Pyzyk, James J. Carrig and Niebler, Pyzyk, Roth and
Carrig, LLP, Menomonee Falls. Oral argument by James J. Carrig.

For the plaintiffs-appellants, there was a brief by Alex
Flynn, Marjorie R. Maguire and Alex Flynn and Associates, S.C.,
Milwaukee. Oral argument by Alex Flynn.
 An amicus curiae brief was filed by Jonh E. Knight, Kirsten
E. Spira and Boardman & Clark LLP, Madison, for Wisconsin
Bankers Association.

An amicus curiae brief was filed by Michael J. Cerjak,
PKSD, Milwaukee, Mark L. Thomsen and Cannon & Dunphy, S.C.,
Brookfield for Wisconsin Association for Justice.

2
 2017 WI 37
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2581
(L.C. No. 2011CV8389)

STATE OF WISCONSIN : IN SUPREME COURT

Taft Parsons, Jr. and Carol Parsons,

Plaintiffs-Appellants,

v.
FILED
Associated Banc-Corp, APR 13, 2017

Defendant-Respondent-Petitioner, Diane M. Fremgen
Clerk of Supreme Court

XYZ Insurance Company,

Defendant.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a

published decision of the court of appeals, Parsons v.

Associated Banc-Corp, 2016 WI App 44, 370 Wis. 2d 112, 881

N.W.2d 793, which reversed the Milwaukee County circuit court's1

order granting Associated Banc-Corp's ("Associated") motion to

strike Taft and Carol Parsons' ("the Parsons") demand for a

jury.
1
The Honorable Jeffrey A. Conen presided.
 No. 2014AP2581

¶2 The Parsons are approaching a trial in their lawsuit

against Associated for alleged racketeering activity and

negligent hiring, training, and supervision. We are asked to

decide what form that trial will take. The Parsons seek a jury

trial, but Associated asserts that the Parsons contractually

waived their right to a jury several years ago, before this

litigation arose.

¶3 There are two basic issues on this appeal. First, we

must examine whether the pre-litigation jury waiver provision in

the contract between the Parsons and Associated is enforceable,

either with or without proof extrinsic to the terms of the

contract that the Parsons knowingly and voluntarily agreed to

this waiver. Second, if we conclude that the provision is

enforceable, we must examine whether Associated's motion to

strike the Parsons' jury demand was untimely.

¶4 We conclude that the pre-litigation jury waiver

provision in the contract between the Parsons and Associated is

enforceable and that Associated does not need to offer
additional proof that the Parsons knowingly and voluntarily

agreed to this waiver. We further conclude that Associated's

motion to strike the Parsons' jury demand was not untimely.

Consequently, we reverse the decision of the court of appeals

and remand the case to the circuit court for further proceedings

consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 In part because of the unusual posture of this case,
the facts pertaining to this lawsuit are largely unimportant to
2
 No. 2014AP2581

the disposition of this appeal. On May 26, 2011, the Parsons

sued Associated in Milwaukee County circuit court asserting

claims pertaining to, in the words of the Parsons, "a failed

construction project in inner-city Milwaukee."

¶6 More specifically, the Parsons' complaint contains the

following relevant allegations. In or before 2002, Taft Parsons

("Taft") "conceived of the idea to turn the run-down houses on

his block into modern affordable rowhouses." The Parsons

obtained financing for this project through State Financial

Bank, Associated's predecessor in interest.2 According to the

Parsons, however, Associated "conspired with, aided, and/or

allowed the general contractor and project manager [of the

project] to improperly take hundreds of thousands of dollars of

construction funds from the [Parsons] causing the [Parsons]

substantial injury." The complaint asserted ten causes of

action and, importantly, demanded a 12-person jury.

¶7 On December 12, 2012, the Parsons filed an amended

complaint asserting eight causes of action. Before this court,
the Parsons contend that they have now "limited their case" to

the following two claims presented in their amended complaint:

(1) racketeering activity in violation of Wis. Stat. § 946.83(1)

2
For simplicity, we will refer to both State Financial Bank
and Associated as "Associated" for the remainder of this
opinion. We express no position on the merits of the underlying
dispute.

3
 No. 2014AP2581

(2013-14);3 and (2) negligent hiring, training, and supervision.

In their amended complaint the Parsons again demanded a 12-

person jury. On January 9, 2013, the Parsons submitted the jury

fee to the circuit court.

¶8 On May 14, 2014, Associated filed a motion to strike

the Parsons' jury demand. Associated provided the circuit court

with a Promissory Note for several hundred thousand dollars

dated May 26, 2004 and listing Taft as "Borrower" and Associated

as "Lender." The note contained the following relevant

language:

WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER (BY
THEIR ACCEPTANCE HEREOF) HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG THE BORROWER AND THE
LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS
DOCUMENT, ANY OTHER RELATED DOCUMENT, OR ANY
RELATIONSHIP BETWEEN THE BORROWER AND THE LENDER. THIS
PROVISION IS A MATERIAL INDUCEMENT TO THE LENDER TO
PROVIDE THE FINANCING DESCRIBED HEREIN OR IN OTHER
LOAN DOCUMENTS.

. . .

PRIOR TO SIGNING THIS NOTE, BORROWER READ AND
UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE . . . .
BORROWER AGREES TO THE TERMS OF THE NOTE.
(Boldface omitted from first four words and last paragraph.) A

few lines below this text was Taft's signature. Accordingly,

3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

4
 No. 2014AP2581

Associated asked the court to strike the Parsons' jury demand

"because it was contractually waived."

¶9 The Parsons offered a number of arguments in response

to the motion to strike; the following ones are relevant to this

appeal. First, while conceding that "the statutes do not

provide a deadline for an opposing party to object to a jury

demand," the Parsons argued that Associated's motion to strike

was untimely and that Associated had waived its right to object

to the jury demand. Second, the Parsons claimed that because of

the lack of Wisconsin case law regarding contractual jury

waivers, the circuit court was not required to enforce the jury

waiver provided by Associated. Third, the Parsons contended

that Carol Parsons ("Carol") had not signed the Promissory Note

and thus had not waived her right to a jury. Finally, the

Parsons asserted that Taft "had no freedom not to sign the

Promissory Note for the construction loan."

¶10 With regard to this final argument, the Parsons

attached an affidavit in which Taft swore to the following,
among other things: Taft "never noticed any jury waiver clause

in the Promissory Note . . . because [he] was not given time to

review the loan documents prior to the closing"; Taft "had no

counsel" at the time he signed the Promissory Note; Taft was

told "that if [he] did not sign the closing documents

immediately, [Associated] would withdraw its support for the

construction project"; if Taft "had not gotten the construction

loan," tens of thousands of dollars he had already obtained
under another loan "for pre-construction costs would have been
5
 No. 2014AP2581

down the drain, and [he] would still have owed that money"; Taft

"did not knowingly and freely waive any right to a jury trial";

and Taft signed the Promissory Note "under pressure."

¶11 On October 24, 2014, the circuit court granted

Associated's motion to strike the Parsons' jury demand. Citing

as "particularly relevant considerations" "the parties'

sophistication, whether the contract was procured fraudulently,

and whether the jury waiver clause is conspicuous," the circuit

court concluded that the waiver was enforceable. The circuit

court explained in part:

[Taft] is an intelligent business man who undoubtedly
has experience reviewing paperwork and entering into
contracts; he surely knows the importance of
thoroughly reviewing documents. . . . [T]he promissory
note also contained multiple bold, capital letter
acknowledgements above the signature line. The jury
waiver clause is set off from the rest of the document
by bold, capital letters, stating "WAIVER OF THE JURY
TRIAL." [sic] It is unlikely that [Taft] overlooked
the jury waiver clause as the promissory note itself
is just a two-page document. Finally, Wisconsin
courts presume that a party to a contract had
knowledge of it and consented to its terms.
¶12 The circuit court rejected the Parsons' timeliness

argument in part because the Parsons had not provided any law

establishing that Associated's putative delay in objecting to

the jury demand waived Associated's right to object to the

demand. With regard to the Parsons' claim that Carol was not

bound by the jury waiver, the court concluded:

The argument made in the Parsons' brief . . . was
superficial. Regardless, the jury waiver applies to
"any dispute . . . between or among the Borrower and
the Lender arising out of" the promissory note[,] any

6
 No. 2014AP2581

other related document, or "any relationship between
the Borrower and the Lender." As [Carol]'s claims are
ones arising out of the relationship between the
borrower and the Bank, the waiver clause also applies
to her.
The circuit court ordered that the Parsons' cause would be heard

by court trial.

¶13 On November 25, 2014, the Parsons petitioned the court

of appeals for leave to appeal a non-final order. On

December 12, 2014, the court of appeals granted the petition.

On May 20, 2016, in a published opinion, the court of appeals
reversed the decision of the circuit court and remanded the case

for a jury trial. Parsons, 370 Wis. 2d 112, ¶1.

¶14 The court of appeals began with the broad proposition

that a person may waive his or her right to a jury trial under

Article I, section 5 of the Wisconsin Constitution. Id., ¶16.

However, the court of appeals concluded that Associated bore the

burden of demonstrating that the Parsons "understood the scope

of and the specific nature of the rights given up by the

waiver." Id., ¶31. Relying on Taft's affidavit, the court

determined that Associated had not met that burden and that the

circuit court erred in concluding otherwise. See id., ¶¶29-31.

¶15 The court of appeals then explained that because "the

additional question of whether the waiver clause is invalid

because it is unconscionable may well arise during trial, as it

did at oral argument, [it would] consider whether the clause, on

the record before [it], survives an unconscionability analysis."

Id., ¶32. The court of appeals concluded the waiver was
procedurally and substantively unconscionable. Id., ¶39.

7
 No. 2014AP2581

¶16 The court of appeals also considered whether the

circuit court erred in allowing Associated to object to the

Parsons' jury demand and concluded it had erred for three

reasons. First, Associated had forfeited its right to object

because its objection was not timely. Id., ¶22. Second,

Associated had waived its right to object under Wis. Stat.

§ 805.01(3). Id. Third, Associated was "equitably estopped

from making its much belated claim for a court trial." Id.,

¶23. The court of appeals remanded the case for a jury trial.

Id., ¶1.

¶17 On June 9, 2016, Associated filed a petition for

review in this court. On September 13, 2016, we granted the

petition.

II. STANDARD OF REVIEW

¶18 In this case we interpret Article I, section 5 of the

Wisconsin Constitution. We review state constitutional

questions de novo. State v. Lagrone, 2016 WI 26, ¶18, 368

Wis. 2d 1, 878 N.W.2d 636 (quoting State v. Schaefer, 2008 WI
25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457).

¶19 We also interpret and apply Wis. Stat. § 805.01 ("Jury

trial of right."). "'Statutory interpretation and application

present questions of law that we review de novo while benefiting

from the analyses of the court of appeals and circuit court.'"

Journal Times v. Racine Bd. Police & Fire Comm'rs, 2015 WI 56,

¶42, 362 Wis. 2d 577, 866 N.W.2d 563 (quoting 118th St. Kenosha,

LLC v. DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486).

8
 No. 2014AP2581

III. ANALYSIS

¶20 We first address whether the pre-litigation jury

waiver provision in the contract between the Parsons and

Associated is enforceable. We then address whether

Associated's motion to strike the Parsons' jury demand is

untimely.

A. Whether the Pre-litigation Jury Waiver Provision in the
Contract between the Parsons and Associated is Enforceable
¶21 That a person may waive his or her right to a civil
jury trial in Wisconsin is already settled law. Under Article

I, section 5 of the Wisconsin Constitution:

The right of trial by jury shall remain inviolate, and
shall extend to all cases at law without regard to the
amount in controversy; but a jury trial may be waived
by the parties in all cases in the manner prescribed
by law. Provided, however, that the legislature may,
from time to time, by statute provide that a valid
verdict, in civil cases, may be based on the votes of
a specified number of the jury, not less than
five−sixths thereof.
Wis. Const. art. I, § 5 (emphasis added).

¶22 The Wisconsin Statutes set forth a number of ways in
which a civil jury trial may be waived. For example, under Wis.

Stat. § 805.01(2), "Any party entitled to a trial by jury or by

the court may demand a trial in the mode to which entitled at or

before the scheduling conference or pretrial conference,

whichever is held first. The demand may be made either in

writing or orally on the record." § 805.01(2). However,

[t]he failure of a party to demand in accordance with
sub. (2) a trial in the mode to which entitled
constitutes a waiver of trial in such mode. The right

9
 No. 2014AP2581

to trial by jury is also waived if the parties or
their attorneys of record, by written stipulation
filed with the court or by an oral stipulation made in
open court and entered in the record, consent to trial
by the court sitting without a jury.
§ 805.01(3). Further, under Wis. Stat. § 814.61(4), "If the

jury fee is not paid, no jury may be called in the action, and

the action may be tried to the court without a jury."

§ 814.61(4). See generally Rao v. WMA Sec., Inc., 2008 WI 73,

¶¶19-20, 310 Wis. 2d 623, 752 N.W.2d 220 (discussing the same

statutes); Phelps v. Physicians Ins. Co. of Wis., 2005 WI 85,
¶¶28-29, 282 Wis. 2d 69, 698 N.W.2d 643 (same). "Wisconsin

Stat. §§ 805.01(3) and 814.61 are but two examples of how waiver

may be effectuated." Phelps, 282 Wis. 2d 69, ¶28.

¶23 The central question in this case, therefore, is not

whether a civil jury trial may be waived, but instead whether a

pre-litigation jury waiver provision in a contract constitutes

waiver "in the manner prescribed by law." Wis. Const. art. I,

§ 5.

¶24 We observe that the parties have not presented us with

a statute governing contractual jury waivers. However, as we

will now explain, that is not dispositive of the issue. It is

true that in another context——interpretation of the "powers,

duties and compensation" of the attorney general pursuant to

Article VI, section 3 of the Wisconsin Constitution——this court

has interpreted the word "law" in the phrase "prescribed by law"

to mean statutory law. See, e.g., State v. City of Oak Creek,

2000 WI 9, ¶19, 232 Wis. 2d 612, 605 N.W.2d 526. And
"[u]ndoubtedly, there is a natural presumption that identical

10
 No. 2014AP2581

words used in different parts of the same act are intended to

have the same meaning." Atl. Cleaners & Dyers v. United States,

286 U.S. 427, 433 (1932). Yet this presumption "is not rigid

and readily yields whenever there is such variation in the

connection in which the words are used as reasonably to warrant

the conclusion that they were employed in different parts of the

act with different intent." Id. Here, a number of

considerations lead us to conclude that the phrase "prescribed

by law" in Article I, section 5 of the Wisconsin Constitution is

not restricted to statutory law.

¶25 As a preliminary matter, we note the obvious

proposition that the phrase "prescribed by law" is susceptible

to a broader definition than simply "prescribed by statute."

The word "law" can denote "[t]he aggregate of legislation,

judicial precedents, and accepted legal principles," not just

legislation. Law, Black's Law Dictionary 1015 (10th ed. 2014).

Likewise, to "prescribe" simply means "[t]o dictate, ordain, or

direct; to establish authoritatively (as a rule or guideline)."
Prescribe, id. at 1373.4

4
The phrase "prescribed by law" appeared in the original
version of Article I, section 5 of the Wisconsin Constitution
adopted in 1848. Both "law" and "prescribe" carried similar
definitions during that time period. One legal dictionary of
the time defines "law" in part as follows:

(continued)
11
 No. 2014AP2581

¶26 Next, we must acknowledge a second, related

interpretative presumption, namely the intuitive presumption

that "different words have different meanings." Pawlowski v.

Am. Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777

N.W.2d 67 ("When the legislature chooses to use two different

words, we generally consider each separately and presume that

different words have different meanings."); Antonin Scalia &

Bryan A. Garner, Reading Law 170 (2012) ("A word or phrase is

presumed to bear the same meaning throughout a text; a material

variation in terms suggests a variation in meaning."). While

Article I, section 5 of the Wisconsin Constitution provides that

"a jury trial may be waived by the parties in all cases in the

[T]hat body or system of rules which the government of
a country has established for its internal regulation,
and for ascertaining and defining the rights and
duties of the governed, . . . commonly called
municipal or civil law, and, in popular language, "the
law of the land." The municipal law of England is
composed of written and unwritten laws (lex scripta
and lex non scripta): or, in other words, of the
statutes of the realm, and of the custom of the realm,
otherwise termed the "common law[";] on both of which
branches of the law the superior courts exercise their
judgment, giving construction and effect to the
former, and by their interpretation declaring what is,
and what is not the latter.

Henry James Holthouse, A New Law Dictionary 245 (2d ed., Boston,
Charles C. Little and James Brown, London, Thomas Blenkarn
1850). Another contemporaneous dictionary defines "prescribe"
in part as "[t]o set or lay down authoritatively for direction;
to give as a rule of conduct. To direct." 2 John Boag, A
Popular and Complete English Dictionary 1016 (Glasgow, William
Collins 1848).

12
 No. 2014AP2581

manner prescribed by law," that sentence is immediately followed

by this sentence: "Provided, however, that the legislature may,

from time to time, by statute provide that a valid verdict, in

civil cases, may be based on the votes of a specified number of

the jury, not less than five−sixths thereof." Wis. Const. art.

I, § 5 (emphases added). The fact that the same section in the

state constitution refers generally to a matter being

"prescribed by law" and specifically to the legislature

"provid[ing]" something "by statute" strongly suggests that

"law" in that section has a broader meaning than simply

"statutory law."

¶27 We turn now to a significant factor in our analysis:

this is not the first time this court has addressed the question

of whether the manner of jury waiver under Article I, section 5

of the Wisconsin Constitution must find prior authorization in a

statute. In interpreting the meaning of "prescribed by law" in

the attorney general section of our constitution in City of Oak

Creek, we declared that "this court has consistently stated that
the phrase 'prescribed by law' in art. VI, § 3 plainly means

prescribed by statutory law." City of Oak Creek, 232

Wis. 2d 612, ¶19. But just the opposite is true with regard to

Article I, section 5: as made clear by our decision in

Theuerkauf v. Schnellbaecher, 64 Wis. 2d 79, 218 N.W.2d 295

(1974), a long line of early cases of this court determined,

without any reference to an authorizing statute, that a jury

trial had been waived. See Theuerkauf, 64 Wis. 2d at 87 (citing
Leonard v. Rogan, 20 Wis. 568 (*540), 571 (*543) (1866); Charles
13
 No. 2014AP2581

Baumbach Co. v. Hobkirk, 104 Wis. 488, 80 N.W. 740 (1899);

McCormick v. Ketchum, 48 Wis. 643, 4 N.W. 798 (1880); Wooster v.

Weyh, 194 Wis. 85, 216 N.W. 134 (1927); Gifford v. Thur, 226

Wis. 630, 276 N.W. 348 (1938)).

¶28 Thus this court announced in Theuerkauf: "[T]he

conclusion has been reached that [Wis. Stat. §] 270.32"——the

predecessor to the current Wis. Stat. § 805.015——"does not state

the exclusive conditions for finding waiver of jury trial."

Theuerkauf, 64 Wis. 2d at 87. In referring, after stating this

proposition, to cases where no statute at all was cited in

discussions of jury waiver, the Theuerkauf court was plainly

implying not that conditions for finding waiver of a jury trial

could be found in other statutes, but that some such conditions

had their source independent of any statute enacted by the

legislature. This proposition was hinted at later in Rao, where

we looked to "court-promulgated rule[s] of pleading, practice,

or procedure" as well as "case law interpreting and applying

these rules" to determine "the manner by which a party waives
its Article I, Section 5 right of trial by jury." Rao, 310

Wis. 2d 623, ¶¶35 n.25, 45 (citing Phelps, 282 Wis. 2d 69, ¶28).6

5
See Sup. Ct. Order, Rules of Civil Procedure, 67
Wis. 2d 585, 585-86, 689-90, 760 (1975).
6
That is not to say that our case law has been wholly
consistent. In Bennett v. State, a criminal case, this court
noted in passing that:

Under [Article I, section 5 of the Wisconsin
Constitution], this court has repeatedly held that a
party to an action may waive the right of trial by
(continued)
14
 No. 2014AP2581

¶29 It makes sense to interpret Article I, section 5 in

this fashion given the often broad definition of the term

"waiver." See, e.g., Rao, 310 Wis. 2d 623, ¶22 (quoting State

v. Kelty, 2006 WI 101, ¶18 n.11, 294 Wis. 2d 62, 716 N.W.2d 886)

("[A] party's 'waiver' of the Article I, Section 5 right of

trial by jury need not be a 'waiver' in the strictest sense of

that word, that is, an 'intentional relinquishment of a known

right.'"); William R. Anson, Principles of the Law of Contract

419 (Arthur L. Corbin ed., 3d Am. ed. 1919), quoted in Black's,

supra ¶25, at 1813 ("The term waiver is one of those words of

indefinite connotation in which our legal literature abounds;

like a cloak, it covers a multitude of sins."). Interpreting

"prescribed by law" to mean "prescribed by the legislature"

assigns to the legislature the task of defining all the possible

ways a person might waive his or her right to a jury trial.

Interpreting the phrase to, for example, encompass the common

law, allows the legislature to enumerate additional, specific

manners of waiver, or to preclude particular manners of waiver

jury, not only in the manner prescribed by law, but by
not taking exceptions on the trial of an action
without a jury, the right to which is secured to him
by this section.

Bennett v. State, 57 Wis. 69, 74 (1883). For the reasons
provided in this opinion, we conclude that the proper inquiry
under Article I, section 5, is to examine whether a particular
form of jury waiver not particularly described in a statute is
nevertheless "prescribed by law" other than statutory law,
rather than to anchor that form to some (unexplained) basis
independent of the constitutional text, as Bennett appears to
have done.

15
 No. 2014AP2581

if it so desires. This latter is the more reasonable

interpretation, and thus the likelier one.

¶30 For all of these reasons, we conclude that the text of

Article I, section 5 of the Wisconsin Constitution does not

limit the manner of jury trial waiver to those set forth by

statute. Consequently, we may look to other sources of law to

determine whether the Parsons' putative waiver of their right to

a jury trial was valid. This particular case may be resolved by

turning to common law——specifically, to longstanding principles

of contract law in Wisconsin.

¶31 "Wisconsin public policy favors freedom of contract."

Solowicz v. Forward Geneva Nat'l, LLC, 2010 WI 20, ¶34, 323

Wis. 2d 556, 780 N.W.2d 111 (citing AKG Real Estate, LLC v.

Kosterman, 2006 WI 106, ¶34, 296 Wis. 2d 1, 717 N.W.2d 835); see

also Watts v. Watts, 137 Wis. 2d 506, 521, 405 N.W.2d 303 (1987)

("Wisconsin courts have long recognized the importance of

freedom of contract and have endeavored to protect the right to

contract."). "[F]reedom of contract rests on the premise that it
is in the public interest to accord individuals broad powers to

order their affairs through legally enforceable agreements."

Ash Park, LLC v. Alexander & Bishop, Ltd., 2015 WI 65, ¶38 n.24,

363 Wis. 2d 699, 866 N.W.2d 679 (alteration in original)

(quoting E. Allan Farnsworth, 2 Farnsworth on Contracts § 5.1,

at 1 (3rd ed. 2004)). That is, "individuals should have the

power to govern their own affairs without governmental

interference." Merten v. Nathan, 108 Wis. 2d 205, 211, 321
N.W.2d 173 (1982).
16
 No. 2014AP2581

¶32 There is no reason why waiver of a person's Article I,

section 5 right to a jury trial should constitute an exception

to our general presumption in favor of freedom of contract. "It

is well settled that constitutional rights . . . may be waived."

Booth Fisheries Co. v. Indus. Comm'n, 185 Wis. 127, 132, 200

N.W. 775 (1924), aff'd, 271 U.S. 208 (1926). Moreover, the

action a party must take to waive his or her Article I, section

5 right to a jury trial pursuant to statute is quite minimal.

For example, as explained above, a jury may be waived simply by

failure to pay the required fee. Wis. Stat. § 814.61(4).

Compared to a potentially accidental waiver like that, there is

nothing inherently unjust about allowing parties to agree

voluntarily to forego a jury in advance of trial.

¶33 In fact, the legislature has indicated agreement with

this conclusion. Wisconsin Stat. ch. 218 ("Finance Companies,

Auto Dealers, Adjustment Companies and Collection Agencies")

contains a provision which states that "[e]xcept as provided

[elsewhere], provisions of an agreement which do any of the
following are void and prohibited: . . . waive the dealer's or

distributor's right to a jury trial." Wis. Stat.

§ 218.0114(9)(a)2. The chapter defines "agreement" to mean "a

contract that describes the franchise relationship between

manufacturers, distributors, importers and dealers." Wis. Stat.

§ 218.0101(1) (emphasis added). In other words, the legislature

has, in a very narrow context, prohibited contractual jury

waivers. It would be strange for the legislature to foreclose
such waivers under these limited circumstances if it thought
17
 No. 2014AP2581

contractual jury waivers were prohibited in general due to a

lack of express statutory authorization.7

¶34 Accordingly, we conclude that, consistent with

longstanding principles of contract law in Wisconsin, the pre-

litigation jury waiver provision in the contract between the

Parsons and Associated is enforceable.

¶35 As explained, the court of appeals concluded that

Associated bore the additional burden of demonstrating that the

Parsons "understood the scope of and the specific nature of the

rights given up by the waiver." Parsons, 370 Wis. 2d 112, ¶31.

We disagree. First of all, as is apparent from our previous

discussion, "a party's 'waiver' of the Article I, Section 5

right of trial by jury need not be a 'waiver' in the strictest

sense of that word, that is, an 'intentional relinquishment of a

known right.'" Rao, 310 Wis. 2d 623, ¶22 (quoting Kelty, 294

Wis. 2d 62, ¶18 n.11).

¶36 Second, in Wisconsin, "[w]here the terms of a contract

are clear and unambiguous, we construe the contract according to
its literal terms. 'We presume the parties' intent is evidenced

by the words they [choose], if those words are unambiguous.'"

Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348 Wis. 2d 631,

7
Nor was the legislature simply considering arbitration
agreements; Wisconsin Stat. § 218.0114(9)(b)1. explains that
"[n]otwithstanding par. (a)2." and subject to certain
conditions, "an agreement may provide for the resolution of
disputes by arbitration, including binding arbitration."
§ 218.0114(9)(b)1.

18
 No. 2014AP2581

833 N.W.2d 586 (citation omitted) (quoting Kernz v. J. L. French

Corp., 2003 WI App 140, ¶9, 266 Wis. 2d 124, 667 N.W.2d 751).

While "the presumption is not conclusive in all cases," "[i]t is

a familiar rule that those who sign written instruments are

presumed to know their contents and their legal effect."

Creasey Corp. v. Dunning, 182 Wis. 388, 396, 196 N.W. 775

(1924). "Men, in their dealings with each other, cannot close

their eyes to the means of knowledge equally accessible to

themselves and those with whom they deal, and then ask courts to

relieve them from the consequences of their lack of vigilance."

Kruse v. Koelzer, 124 Wis. 536, 541, 102 N.W. 1072 (1905).

¶37 The words of the Parsons' contract are unambiguous.

By those words, both Associated and the Parsons waived any right

to a jury trial. Further, the contract provides, in boldface,

that "PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD

ALL THE PROVISIONS OF THIS NOTE." "It is not the function of

the court to relieve a party to a freely negotiated contract of

the burdens of a provision which becomes more onerous than had
originally been anticipated." Ash Park, LLC, 363 Wis. 2d 699,

¶38 (quoting 11 Richard A. Lord, Williston on Contracts § 1:1

(4th ed. 2002)). We conclude that Associated does not need to

offer additional proof that the Parsons knowingly and

voluntarily agreed to this waiver.

¶38 Before proceeding, we address Taft's affidavit.

Relying on the affidavit, the court of appeals suggested that

Associated had obtained the jury waiver provision fraudulently.
However, "a party seeking to invalidate a provision in a
19
 No. 2014AP2581

contract . . . has the burden of proving facts that justify a

court's reaching the legal conclusion that the provision is

invalid." Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI

53, ¶30, 290 Wis. 2d 514, 714 N.W.2d 155. The circuit court was

"unpersuaded" by the allegations in Taft's affidavit and

apparently found them to be incredible, relying in part on its

view of Taft's business acumen and the specific characteristics

of the waiver itself. The record adequately supports the

circuit court's determination, and thus the court of appeals was

not entitled to substitute its own view of the evidence for the

circuit court's view of the evidence. See, e.g., Lemke v.

Lemke, 2012 WI App 96, ¶55, 343 Wis. 2d 748, 820 N.W.2d 470

("[A]n appellate court does not find facts."); State v. Turner,

136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987) ("In general, we are

bound not to upset the trial court's findings of historical or

evidentiary fact unless they are contrary to the great weight

and clear preponderance of the evidence."); Klein-Dickert

Oshkosh, Inc. v. Frontier Mortg. Corp., 93 Wis. 2d 660, 663, 287
N.W.2d 742 (1980) ("[W]hen the trial judge acts as the finder of

fact, he is the ultimate and final arbiter of the credibility of

witnesses. When more than one inference can be drawn from the

credible evidence, the reviewing court must accept the inference

drawn by the trier of fact.").

¶39 The court of appeals did not stop there, additionally

concluding that the clause was substantively and procedurally

unconscionable. Parsons, 370 Wis. 2d 112, ¶¶32-39. The court
of appeals explained that it was addressing this question
20
 No. 2014AP2581

because it "may well arise during trial, as it did at oral

argument." Id., ¶32. Given the posture of the case, the

findings of the circuit court regarding the affidavit, and the

skeletal state of the record, the decision of the court of

appeals to reach out and opine on unconscionability was

erroneous. The conclusion of the court of appeals that the

Parsons' contractual jury waiver is unconscionable is reversed.

The circuit court may decide on remand whether (and if so, when)

unconscionability may be addressed.8

B. Whether Associated's Motion is Untimely

¶40 We have concluded that that the pre-litigation jury

waiver provision in the contract between the Parsons and

Associated is enforceable. But the Parsons counter Associated's

waiver claim with a "waiver" claim of their own: they claim that

Associated waited too long to object to the Parsons' jury demand

8
The Parsons argued before the circuit court that Carol was
not bound by the jury waiver signed by Taft. The circuit court
rejected that argument, characterizing it as "superficial."
Despite this warning, the Parsons' argument on this issue before
this court is a single paragraph long and does not cite to any
legal authorities. "[W]e do not usually address undeveloped
arguments," and we will not do so here. State v. Gracia, 2013
WI 15, ¶29 n.13, 345 Wis. 2d 488, 826 N.W.2d 87.

Additionally, the parties do not develop arguments that we
should analyze waiver of any statutory right to a jury trial the
Parsons possess differently from how we analyze waiver of their
constitutional right to a jury trial, so we do not do so. See
Wis. Stat. § 805.01(1) ("The right of trial by jury as declared
in article I, section 5, of the constitution or as given by a
statute and the right of trial by the court shall be preserved
to the parties inviolate.").

21
 No. 2014AP2581

and thus may not now do so. The circuit court below rejected

this claim in part because the Parsons had not provided law

supporting it. The court of appeals reversed this conclusion,

stating that Associated had forfeited the right to strike the

Parsons' jury demand, had waived the right under Wis. Stat.

§ 805.01(3), and were equitably estopped from asserting the

right. Parsons, 370 Wis. 2d 112, ¶¶21-23. We disagree with all

three determinations.

¶41 The only statutory authority provided in this case is

Wis. Stat. § 805.01, which states in relevant part:

(1) Right Preserved. The right of trial by jury
as declared in article I, section 5, of the
constitution or as given by a statute and the right of
trial by the court shall be preserved to the parties
inviolate.

(2) Demand. Any party entitled to a trial by
jury or by the court may demand a trial in the mode to
which entitled at or before the scheduling conference
or pretrial conference, whichever is held first. The
demand may be made either in writing or orally on the
record.

(3) Waiver. The failure of a party to demand in
accordance with sub. (2) a trial in the mode to which
entitled constitutes a waiver of trial in such mode.
§ 805.01(1)-(3) (emphases added). The court of appeals

concluded Associated was bound by the emphasized text because

Associated viewed itself as "entitled to a trial . . . by the

court." See Parsons, 370 Wis. 2d 112, ¶22. One problem with

the reasoning of the court of appeals is that, pursuant to it,

both Associated and the Parsons could waive any entitlement to a
mode of trial and the mode of trial would remain undetermined.

22
 No. 2014AP2581

In any event, Associated was not, in fact, "demand[ing] a trial

in the mode to which entitled." It was instead moving to strike

the Parsons' jury demand because the Parsons were not themselves

"entitled to a trial by jury." These are not identical actions.

See Judicial Council Committee Note, 1974, to Wis. Stat.

§ 805.01, S. Ct. Order, Rules of Civil Procedure, 67 Wis. 2d at

690 ("The reference to trial by the court is included because

Wisconsin, unlike most states, has long recognized a

constitutional right to trial by the court in appropriate

cases." (citing Callanan v. Judd, 23 Wis. 343 (1868)).

¶42 The parties devote a significant amount of briefing to

establishing with precision the timeline below and whether

Associated's putative delay was reasonable in light of various

events that occurred as litigation proceeded. In the absence of

a statutory directive, we cannot conclude that the circuit

court——the entity with the best grasp of the unfolding of the

proceedings below and of the relative equities of the

situation——erroneously exercised its discretion in allowing
Associated to rely on its otherwise-enforceable agreement with

the Parsons not to try this case before a jury. C.f., e.g.,

Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 220, 226-27

(3d Cir. 2007) (reviewing district court's decision not to

"bar[] DaimlerChrysler's motion to strike Tracinda's jury demand

on the basis of laches" after DaimlerChrysler waited three years

to file the motion under abuse-of-discretion standard).

Further, having contracted away their right, any reliance that
the Parsons might have had on Associated's initial acquiescence
23
 No. 2014AP2581

in their unfounded demand for a jury trial was not reasonable.

Because reasonable reliance is a requirement of equitable

estoppel, Associated is not equitably estopped from striking the

Parsons' demand. See Affordable Erecting, Inc. v. Neosho

Trompler, Inc., 2006 WI 67, ¶33, 291 Wis. 2d 259, 715 N.W.2d 620

("There are four elements of equitable estoppel: (1) action or

non-action; (2) on the part of one against whom estoppel is

asserted; (3) which induces reasonable reliance thereon by the

other, either in action or non-action; (4) which is to the

relying party's detriment." (emphasis added) (citing Village of

Hobart v. Brown Cnty., 2005 WI 78, ¶36, 281 Wis. 2d 628, 698

N.W.2d 83)).

¶43 In sum, Associated's motion to strike the Parsons'

jury demand was not untimely.

¶44 Before we conclude, we stress that the Parsons are not

being denied their day in court. We simply decide today that

any trial that occurs on remand will be a bench trial. We add

that the circuit court may determine, as this litigation
proceeds, whether the Parsons may bring additional arguments

related to the validity of any agreements into which they

entered with Associated.

IV. CONCLUSION

¶45 We conclude that the pre-litigation jury waiver

provision in the contract between the Parsons and Associated is

enforceable and that Associated does not need to offer

additional proof that the Parsons knowingly and voluntarily
agreed to this waiver. We further conclude that Associated's
24
 No. 2014AP2581

motion to strike the Parsons' jury demand was not untimely.

Consequently, we reverse the decision of the court of appeals

and remand the case to the circuit court for further proceedings

consistent with this opinion.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

¶46 DANIEL KELLY, J., did not participate.

25
 No. 2014AP2581.awb

¶47 ANN WALSH BRADLEY, J. (dissenting). The right to a

jury trial is a bedrock principle upon which this state is

founded. Article I, section 5 of the Wisconsin Constitution

guarantees that the "right of trial by jury shall remain

inviolate . . . but . . . may be waived by the parties in all

cases in the manner prescribed by law . . . ." This case

requires us to examine the prescribed manner by which a party

may contractually waive this guaranteed right.

¶48 Specifically we address whether Taft and Carol Parsons

("the Parsons") waived the right to a jury trial when Taft

Parsons signed several loan documents, including one that

contained a provision waiving the right to a have a jury resolve

any claims against the lending institution.

¶49 The majority concludes that the pre-litigation jury

waiver provision in the contract between the Parsons and

Associated Bank-Corp ("Associated") is enforceable. Majority

op., ¶45. In reaching its conclusion, the majority opinion

ignores both significant precedent and the facts of this case.
¶50 Following a clear United States Supreme Court

directive, numerous federal circuits have determined that a

party must voluntarily and knowingly agree to a jury waiver.

Rather than examining the totality of the circumstances, the

majority instead rests on an ipse dixit analysis——if the jury

waiver clause states that the waiver is knowingly and

voluntarily made, then it must be so.

¶51 The damaging effect of the majority's departure from
this well-established rule is demonstrated by the egregious

1
 No. 2014AP2581.awb

facts of this case, which the majority to a large extent also

ignores. Indeed, the facts here are so egregious that the court

of appeals determined that the jury waiver clause was

unenforceable because it "is both procedurally and substantively

unconscionable."1 Parsons v. Associated Banc-Corp, 2016 WI App

44, ¶39, 370 Wis. 2d 112, 881 N.W.2d 793.

¶52 According to the amended complaint, an affidavit, and

the documents of record, the Parsons planned a townhouse

development to refurbish their neighborhood, but their plans

went awry during the course of dealing with the bank. Instead

of a townhouse development they were faced with bankruptcy,

foreclosure and loan repayment demands for work that was never

done. The loan officer involved was convicted of bank fraud in

federal court related to a different townhouse project, with

remarkably similar facts to those presented here.

¶53 Among the many documents he presented for their

signature was a promissory note that contained a jury waiver

clause. The Parsons were not allowed any time to review the
documents or consult with an attorney before signing them. The

loan officer threatened them by stating that he would withdraw

the construction loan if they did not promptly sign the

documents. Faced with the option of losing it all or promptly

signing the documents, Taft Parsons signed. In their complaint

1
"Unconscionability has often been described as the absence
of meaningful choice on the part of one of the parties, together
with contract terms that are unreasonably favorable to the other
party." Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53,
¶32, 290 Wis. 2d 514, 714 N.W.2d 155.

2
 No. 2014AP2581.awb

the Parsons allege multiple acts of fraud, extortion and threats

that occurred under the bank's watch.

¶54 Additionally, Associated waited years to object after

the Parsons demanded a jury trial in compliance with Wisconsin's

civil procedure statutes. The majority pays no heed to this

delay, however, concluding that Associated's motion to strike

the Parsons' jury demand was timely. Majority op., ¶4.

¶55 Contrary to the majority, I conclude that Associated

Bank has not met its burden of proving that the Parsons

knowingly and voluntarily waived their right to trial by jury.

I further determine that Associated's motion to strike the

Parsons' jury demand was untimely. Accordingly, I respectfully

dissent.

I

¶56 In the span of only three paragraphs, the majority

opinion dispenses with the question of whether Associated must

demonstrate that the Parsons knowingly and voluntarily waived

their right to a jury trial. See majority op., ¶¶35-37.
Ignoring relevant precedent including the numerous federal

circuits that have addressed this issue, the majority determines

that "Associated does not need to offer additional proof that

the Parsons knowingly and voluntarily agreed to this waiver."

Id., ¶37.

¶57 Relying instead on this court's decision in Rao v. WMA

Securities, Inc., the majority asserts that "a party's 'waiver'

of the Article I, Section 5 right of trial by jury need not be a
'waiver' in the strictest sense of that word, that is, an

3
 No. 2014AP2581.awb

'intentional relinquishment of a known right.'" Majority op.,

¶35 (quoting Rao, 2008 WI 73, ¶22, 310 Wis. 2d 623, 752

N.W.2d 220). Additionally, it contends that Associated need not

demonstrate that the waiver was knowing and voluntary because

the terms of the Parsons' contract with Associated are

unambiguous. Majority op., ¶¶36-37.

¶58 Despite its proffered rationales, the majority opinion

finds little support in the law. First, its reliance on Rao is

misplaced. In Rao, this court concluded that the circuit court

did not violate the defendant's right to a jury trial because

the defendant waived its right to a jury in the manner

prescribed by law set forth in Wis. Stat. §§ 804.12(2) (failure

to make discovery; sanctions) and 806.02 (default judgment).

310 Wis. 2d 623, ¶5.

¶59 Taking language out of context, the majority quotes

Rao for the proposition that a jury waiver need not be an

intentional relinquishment of a known right. Majority op., ¶35

(quoting Rao, 310 Wis. 2d 623, ¶22). However, the majority
ignores that Rao did not address contractual waiver of the

right. Rather, the context in which Rao made this statement was

in addressing the consequences of a party's failure to comply

with statutory requirements. See Rao, 310 Wis. 2d 623, ¶22 (a

party may waive the right to a trial by jury "by failing to

assert the right timely (as when a party fails to demand a jury

trial timely in accordance with § (Rule) 805.01) or by violating

a law setting conditions on the party's exercise of the jury

4
 No. 2014AP2581.awb

trial right (as when a party fails to pay the jury fee timely in

accordance with Wis. Stat. § 814.61).").

¶60 Second, the majority superficially addresses the issue

of a contractual waiver by citing the basic principle that where

the terms of a contract are unambiguous, we presume the parties

intent is reflected in those words. Majority op., ¶36 (quoting

Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348 Wis. 2d 631,

833 N.W.2d 586). The majority reasons that "it is a familiar

rule that those who sign written instruments are presumed to

know their contents and their legal effect." Majority op., ¶36

(quoting Creasy Corp. v. Dunning, 182 Wis. 388, 396, 196 N.W.

775 (1924). Accordingly, it concludes that because the words of

the contract are unambiguous, "[b]y those words, both Associated

and the Parsons waived any right to a jury trial." Majority

op., ¶37.

¶61 Reliance on general principles regarding freedom of

contract is insufficient when a contract waives a constitutional

right. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 756 (6th
Cir. 1985). Indeed, none of the cases cited by the majority as

support for its conclusion——that Associated need not offer

additional proof of knowing and voluntary waiver——even addresses

the waiver of a constitutional right.2

2
See Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348
Wis. 2d 631, 833 N.W.2d 586 (addressing a contract dispute
between a landlord and a tenant over the terms of a commercial
lease of property); Kernz v. J.L. French Corp., 2003 WI App 140,
¶9, 266 Wis. 2d 124, 667 N.W.2d 751 (employment contract
dispute); Creasy Corp. v. Dunning, 182 Wis. 388, 396, 196
N.W. 775, 778 (1924) (action to recover payment for
merchandise); Kruse v. Koelzer, 124 Wis. 536, 541, 102 N.W. 1072
(continued)
5
 No. 2014AP2581.awb

¶62 Third, in its fervor to genuflect at the altar of

freedom of contract, the majority ignores the significant

precedent that has addressed the means by which a party may

contractually waive its right to a jury trial. As the United

States Supreme Court explains, courts should "indulge every

reasonable presumption" against waiver of a jury trial due to

the right's fundamental nature. Aetna Ins. Co. v. Kennedy to

Use of Bogash, 301 U.S. 389, 393 (1937) (citations omitted); see

also D.H. Overmyer Co. Inc., of Ohio v. Frick Co., 405 U.S. 174,

186 (1972) ("[W]e do not presume acquiescence in the loss of

fundamental rights.") (citation omitted). Indeed, it has

instructed that waivers be intentional. Brookhart v. Janis, 384

U.S. 1, 4 (1966); see also Bogash, 301 U.S. at 393; Ohio Bell

Tel. Co. v. Public Utils. Comm'n of Ohio, 301 U.S. 292, 307

(1937); D.H. Overmyer, 405 U.S. at 187.

¶63 The United States Supreme Court has directed, "for a

waiver to be effective it must be clearly established that there

was an intentional relinquishment or abandonment of a known
right or privilege." Brookhart, 384 U.S. at 4 (internal

citation omitted). In accordance with this directive, numerous

federal circuits that have considered this issue have concluded

that a jury waiver clause can only be effective where a party

agrees to the provision knowingly and voluntarily. See Tracinda

Corp. v. DaimlerChrysler AG, 502 F.3d 212, 222 (3d Cir. 2007)

(1905) (action brought to reform a warranty deed); Ash Park, LLC
v. Alexander & Bishop, Ltd., 2015 WI 65, ¶38, 363 Wis. 2d 699,
866 N.W.2d 679 (action seeking specific performance of real
estate purchase agreement).

6
 No. 2014AP2581.awb

("To be valid, a jury waiver must be made knowingly and

voluntarily based on the facts of the case.") (citations

omitted); Med. Air Tech. Corp. v. Marwan Inv., Inc., 303 F.3d

11, 19 (1st Cir. 2002) ("courts will not enforce the jury waiver

unless it was entered into knowingly and voluntarily"); Seaboard

Lumber Co. v. United States, 903 F.2d 1560, 1563 (Fed. Cir.

1990) ("Waiver requires only that the party waiving such right

do so 'voluntarily' and 'knowingly' based on the facts of the

case."); Leasing Serv. Corp. v. Crane, 804 F.2d 828, 833 (4th

Cir. 1986) ("Where waiver is claimed under a contract executed

before litigation is contemplated, we agree with those courts

that have held that the party seeking enforcement of the waiver

must prove that consent was both voluntary and informed.");

K.M.C., 757 F.2d at 756 ("Those cases in which the validity of a

contractual wavier of jury trial has been in issue have

overwhelmingly applied the knowing and voluntary standard.");

Nat'l Equip. Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir.

1977) ("It is elementary that the Seventh Amendment right to a
jury is fundamental and that its protection can only be

relinquished knowingly and intentionally."). But see IFC Credit

Corp. v. United Bus. & Indus. Fed. Credit Union, 512 F.3d 989,

992-94 (7th Cir. 2008) (declining to follow other federal

circuits).

¶64 Additionally, the predominant federal rule comports

with analogous Wisconsin case law, such as the contractual

waiver-of-venue cases. Brunton v. Nuvell Credit Corp., 2010 WI
50, ¶34, 325 Wis. 2d 135, 785 N.W.2d 302 ("[T]he waiver of a

7
 No. 2014AP2581.awb

fundamental constitutional right requires a knowing,

intelligent, and voluntary waiver."). It is also in accord with

the principle that the waiver of a constitutional right requires

a voluntary act. Wendlandt v. Indus. Comm'n, 256 Wis. 62, 66,

39 N.W.2d 854 (1949).

¶65 Whether a waiver of a constitutional right was knowing

and voluntary is a fact-specific inquiry that is "separate and

distinct from the operation of rules of substantive contract

law . . . ." K.M.C., 757 F.2d at 756. As the relevant case law

instructs, this inquiry should focus on the totality of the

circumstances. See, e.g., Med. Air Tech., 303 F.3d at 19 n.4.

¶66 This inquiry emphasizes the relative bargaining power

of the parties, as well as other factors including the

respective roles of the parties in determining the terms of the

waiver, the amount of time the waiving party had to consider the

waiver and whether the waiving party was represented by counsel.

See Nat'l Equip. Rental, 565 F.2d at 258 (emphasizing the

parties' inequality in bargaining power); Med Air Tech., 303
F.3d at 19 n.4 (setting forth factors that have been considered

as part of a totality of the circumstances analysis).

II

¶67 Although the question of whether a party knowingly and

voluntarily waived the right to a jury is a fact-specific

inquiry, the majority opinion asserts that "[i]n part because of

the unusual posture of this case, the facts pertaining to this

lawsuit are largely unimportant to the disposition of this
appeal." Majority op., ¶5. The majority fails to explain how

8
 No. 2014AP2581.awb

the procedural posture of this case is so unusual. This case is

before the court because the Parsons appeal a non-final order of

the circuit court granting Associated's motion to strike the

Parsons' jury demand.

¶68 Based on this slight justification, the majority

opinion neglects to set forth or analyze the facts of the case

beyond a brief summary of the allegations in the Parsons'

complaint. Because the majority fails to do so, I set forth the

necessary facts that inform the totality of the circumstances

analysis. Like the court of appeals, I consider the allegations

in the complaint, the loan documents, and the Parsons'

affidavit.3

¶69 The events that gave rise to this appeal began when

the Parsons obtained a home equity loan in the amount of $40,000

and a construction loan in the amount of $774,000 from State

Financial Bank.4 They obtained these loans because they wanted

to convert deteriorating properties in their Milwaukee

neighborhood, including their own home, into a townhouse
project.

3
Additionally, the majority asserts that the court of
appeals erred in considering the facts alleged in Taft Parsons
affidavit, which is a part of the evidentiary record in this
case. Majority op., ¶38. According to the majority, the
circuit court was "unpersuaded" by the allegations in the
affidavit and "[t]he record adequately supports the circuit
court's determination . . . ." Id. However, because the
majority fails to set forth the parts of the record it believes
supports the circuit court's interpretation, it is the
majority's reasoning here that is unpersuasive.
4
Associated Bank acquired State Financial Bank in 2006.

9
 No. 2014AP2581.awb

¶70 The loan documents were signed by Aaron Moeser, a bank

employee who was later convicted in federal court for fraudulent

activity stemming from a loan scandal involving a similar

townhouse construction project. Before any work was done on the

Parson's townhouse project, the Parsons were instructed to sign

five additional loan documents consisting of thirty pages of

pre-printed forms, one of which contained the jury waiver clause

at issue here.

¶71 According to Taft Parsons' affidavit, his objections

to the new loan documents were met with threats from Moeser to

pull the construction loan. This would have left the Parsons

with debt even when no construction had been completed. Taft

received no explanation of any terms in the documents except

oral instructions to insert a specific interest rate. The bank

refused to allow him the time and opportunity to read the

documents or consult an attorney.5

¶72 Additionally, the loan documents gave State Financial

Bank and Wisconsin Title Closing & Credit Services the authority
to approve the contractor's construction draw requests. State

Financial Bank and the title company were also given sole

responsibility for verifying that the contractor had performed

the construction and other work on the project for which it

requested payment. The documents also allowed payments for

services that were not authorized on the project budget and

5
There is no evidence in the record contradicting the
factual assertions made in the Parsons' affidavit.

10
 No. 2014AP2581.awb

secured all of the debt, including the construction loan, with a

mortgage on the Parsons' home.

¶73 After the loan documents were signed, multiple draws

were approved over the Parsons' objections, despite the fact

that no actual work had begun on the townhouse project. The

Parsons later received a notice of tax levy against the

contractor from the IRS, indicating that it owed over $300,000

in taxes. It ordered the townhouse project to pay the IRS any

money the project was obligated to pay the contractor. The

Parsons then discovered a number of unpaid judgments against the

contractor and forwarded the IRS notice and their findings to

Moeser.

¶74 Moeser ended the construction loan and stopped

payments to the contractor. This left the Parsons with a debt

for the loan proceeds that had already been paid. The Parsons

were unable to pay and State Financial Bank commenced a

foreclosure action against the Parsons' home. State Financial

Bank was taken over by Associated Bank, which continued the
foreclosure action. The Parsons filed for bankruptcy, but made

payments to the bank on the home equity loan, which resulted in

dismissal of the foreclosure action.

¶75 I proceed next to apply those facts to the law. As

set forth above, the federal circuits addressing this issue

emphasize the relative bargaining power of the parties in

considering whether a party knowingly and voluntarily agreed to

waive the right to a jury trial. This case is analogous to
Nat'l Equip. Rental, in which the owner of a small construction

11
 No. 2014AP2581.awb

company entered into a predatory loan agreement when he could

not satisfy obligations on debt owed for construction equipment.

565 F.2d at 256-57. The pre-printed loan documents contained a

jury waiver clause, which the Second Circuit concluded was

unenforceable. Id. at 258.

¶76 Examining the circumstances of the jury waiver, the

Nat'l Equip. Rental court determined that "it is clear that

Hendrix did not have any choice but to accept the NER contract

as written if he was to get badly needed funds." Id. Thus, the

Second Circuit concluded that "[t]his gross inequality in

bargaining power suggests, too, that the asserted waiver was

neither knowing nor intentional." Id.

¶77 Similarly, the facts in the record here demonstrate

that the Parsons did not voluntarily assent to the jury waiver

clause. The complaint and Taft Parsons' affidavit contain facts

sufficient to show that the promissory note was presented to him

as a "take-it-or-leave-it" deal. He was told to sign it

immediately or risk having Moeser cancel the $774,000
construction loan. This would have left the Parsons with

$40,000 in debt on the home equity loan, with no work having

been completed on the townhouse project.

¶78 A number of other factors may be considered in a

totality of circumstances analysis. Med Air Tech., 303 F.3d at

19 n.4. These include, but are not limited to the respective

roles of the parties in determining the terms of the waiver, the

amount of time the waiving party had to consider the waiver and
whether the waiving party was represented by counsel. Id.

12
 No. 2014AP2581.awb

¶79 A number of factors that do not support a

determination that a waiver was knowing and voluntary are

present in this case. The Parsons had no role in determining

the terms of the waiver, which was included among five pre-

printed loan documents totaling nearly thirty pages.

Additionally, Taft Parsons was given no time to sign the waiver

and was not permitted the opportunity to consult with counsel.

¶80 Finally, under this court's decision in Brunton, the

party seeking to enforce the waiver of a constitutional right

has the burden of showing that a person had actual knowledge he

was waiving a constitutional right. 325 Wis. 2d 135, ¶36

("Establishing that a party knew of the right at issue is

essential to establishing waiver."). In this case, Associated

Bank has presented no evidence rebutting the facts presented in

Taft Parsons' affidavit. By failing to do so Associated has not

met its burden of proof. See, e.g., Lane v. Sharp Packaging

Sys., Inc., 2002 WI 28, ¶41, 251 Wis. 2d 68, 640 N.W.2d 788

(resolving discovery dispute on the basis of an uncontested
affidavit); see also Schroeder v. Wacker, No. 2000AP83–FT,

unpublished slip op., ¶17 (Wis. Ct. App. Apr. 26, 2000) (relying

on an uncontested affidavit to prove damages).

¶81 Accordingly, I conclude that Associated Bank has not

met its burden of proving that the pre-litigation jury waiver

provision in the contract between the Parsons and Associated

Bank was made knowingly and voluntarily.

13
 No. 2014AP2581.awb

III

¶82 Finally, I turn to the majority's conclusion that

Associated's motion to strike the Parsons' jury demand was

timely. Majority op., ¶43.

¶83 Pursuant to Wis. Stat. § 805.01, a party may demand a

trial in the mode to which it is entitled at or before the

scheduling conference or pretrial conference, whichever is held

first:
(1) RIGHT PRESERVED. The right of trial by jury as
declared in article I, section 5, of the
constitution or as given by a statute and the
right of trial by the court shall be preserved
to the parties inviolate.

(2) DEMAND. Any party entitled to a trial by jury
or by the court may demand a trial in the mode
to which entitled at or before the scheduling
conference or pretrial conference, whichever is
held first. The demand may be made either in
writing or orally on the record.

(3) WAIVER. The failure of a party to demand in
accordance with sub. (2) a trial in the mode to
which entitled constitutes a waiver of trial in
such mode. . . .
¶84 The Parsons' complaint and amended complaint made a

demand for a jury trial and the jury fee was timely paid.

Associated filed multiple pleadings with no objection to the

jury demand. However, three years into litigation, at the third

pretrial conference, the bank raised an off-the-record objection

to the Parsons' jury demand. It then filed a motion to strike

the Parsons' jury demand, arguing that when Taft Parsons signed

the promissory note with the waiver clause ten years earlier,
the Parsons waived any right to a jury trial involving the bank.

14
 No. 2014AP2581.awb

¶85 Nevertheless, the majority reasons that Associated was

not demanding a trial in the mode to which it was entitled.

Majority op., ¶41. Instead, the majority contends that it was

moving to strike the Parsons' jury demand because the Parsons

were not themselves entitled to a jury trial. Id.

¶86 The majority further refuses to apply equitable

estoppel because "having contracted away their right, any

reliance that the Parsons might have had on Associated's initial

acquiescence in their unfounded demand for a jury trial was not

reasonable." Majority op., ¶42. Thus, the majority concludes

that "[b]ecause reasonable reliance is a requirement of

equitable estoppel, Associated is not equitably estopped from

striking the Parsons' demand." Id. (citing Affordable Erecting,

Inc. v. Neosho Trompler, Inc., 2006 WI 67, ¶33, 291 Wis. 2d 259,

715 N.W.2d 620.

¶87 Contrary to the majority, I conclude that even if the

bank's objection were timely as the majority claims, the bank is

equitably estopped from raising this objection three years into
litigation. Equitable estoppel generally bars one party from

taking a position upon which another party relies and then

subsequently changing that position to the detriment of the

relying party. See Affordable Erecting, 291 Wis.2d 259, ¶33

("There are four elements of equitable estoppel: (1) action or

non-action; (2) on the part of one against whom estoppel is

asserted; (3) which induces reasonable reliance thereon by the

other, either in action or non-action; (4) which is to the
relying party's detriment.") (citation omitted).

15
 No. 2014AP2581.awb

¶88 The bank's failure to challenge the Parsons' jury

demand led the Parsons to spend three years preparing for a jury

trial. A review of the record reveals numerous motions,

hearings, and other activity demonstrating that the parties were

moving toward trial.

¶89 It was reasonable for the Parsons to prepare for a

jury trial because not only did they timely demand one, the bank

actively participated in pre-trial litigation. As the court of

appeals explained, participation by the bank without objection

to the mode of trial "is both action (actually participating)

and inaction (not objecting to the mode of trial) upon which the

Parsons reasonably relied." Parsons, 2016 WI App 44, ¶23.

¶90 I agree with the court of appeals that changing the

mode of trial three years into the case is detrimental to both

the Parsons and to reasonable and efficient court

administration. Thus, I conclude that even if the bank's

objection were timely, it is equitably estopped from making its

much belated claim for a court trial.
¶91 Contrary to the majority, I conclude that Associated

Bank has not met its burden of proving that the Parsons

knowingly and voluntarily waived their right to trial by jury.

I further determine that Associated's motion to strike the

Parsons' jury demand was untimely. Accordingly, I respectfully

dissent.

¶92 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

16
 No. 2014AP2581.awb

1