Brunton v. NUVELL CREDIT CORP.

MICHAEL J. GABLEMAN, J.

¶ 74. (concurring in part, dissenting in part). I join the majority opinion's definition of "waiver" as used in Wis. Stat. § 421.401(2), which includes waiver by conduct. However, I dissent because I would find that Nuvell's actions in this case did constitute waiver by conduct.

¶ 75. Under § 421.401(2), a circuit court must dismiss an improperly venued action "unless the defendant appears and waives the improper venue." The majority opinion rightly concludes that waiver in this statute is "the intentional relinquishment of a known right." Majority op., ¶ 37. This requires that the defendant (1) "knew the place of proper venue"; (2) "knew that he had the right to dismissal"; and (3) intentionally relinquished those rights. Id., ¶¶ 37-38.

¶ 76. The majority opinion is also correct that a party may intentionally relinquish its rights either expressly or by conduct. Id., ¶ 38 (citing Fraser v. Aetna *173Life Ins. Co., 114 Wis. 510, 523-24, 90 N.W. 476 (1902); Estate of Ross v. Ross, 181 Wis. 125, 134, 194 N.W. 151 (1923)). A party intentionally relinquishes its rights through conduct when the party's actions are "so inconsistent with a purpose to stand upon one's rights as to leave no room for a reasonable inference to the contrary." Fraser, 114 Wis. at 523-24. Over and over again, Wisconsin courts have recognized that waiver may be inferred as a matter of law from parties' actions; waiver need not be express. See, e.g., Milas v. Labor Ass'n of Wisconsin, 214 Wis. 2d 1, 9-10, 571 N.W.2d 656 (1997).1 Black's Law Dictionary also makes clear that waiver maybe either "express or implied." Black's Law Dictionary 1717-18 (9th ed. 2009). "Waiver," then, is a term of art. Unless the statutory or constitutional context clearly indicates otherwise, waiver in Wisconsin may be accomplished expressly or by conduct.2

*174¶ 77. Whether waiver by conduct has occurred, however, will obviously depend upon the particular conduct in each case. My parting of the ways with the majority occurs not with its statement of the law, but in its application of the law to the facts of this case. In my view, the only reasonable inference that can be drawn from Nuvell's conduct is that it waived its right to object to venue.

¶ 78. A brief overview of the timeline here will be helpful.

¶ 79. Brunton filed this action in the Dane County Circuit Court on December 16, 2005. Nuvell appeared and filed its answer on February 2, 2006, making no venue objection.

¶ 80. On May 23, 2006, Nuvell commenced a replevin action against Brunton in Rock County based out of the same consumer credit transaction. This, of course, was "a claim arising out of a . . . consumer credit transaction" under § 421.401(1), just like the suit at issue here.

¶ 81. On August 9, 2006, Brunton's attorney made Nuvell aware that the current suit was venued in the wrong county under § 421.401(2). Brunton requested that Nuvell stipulate to transferring venue to Rock County, but Nuvell refused that request on August 11, 2006.

¶ 82. Finally, on February 27, 2007, Nuvell moved for summary judgment, seeking dismissal of Brunton's suit because it was venued in Dane County instead of Rock County in violation of § 421.401. Conveniently, *175the statute of limitations on Brunton's claim had expired just two months prior.3

¶ 83. Thus, Nuvell litigated this suit for more than a year before raising its venue objections. Nuvell may have known that venue was improper when filing the replevin action in May 2006, and indisputably knew that venue was improper in August 2006. Therefore, Nuvell knew the place of proper venue, knew it had the right to dismissal, and yet continued to actively litigate for at least six months, and perhaps as many as nine months. I conclude that only one reasonable inference can be drawn from Nuvell's conduct: it intentionally relinquished its right to challenge venue.4

¶ 84. For the foregoing reasons, I would affirm the judgment of the court of appeals and respectfully concur in part, and dissent in part.

See also Hanz Trucking, Inc. v. Harris Bros. Co., 29 Wis. 2d 254, 264-66, 138 N.W.2d 238 (1965); Estate of Ross v. Ross, 181 Wis. 125, 134-35, 194 N.W. 151 (1923); Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 117-18, 105 N.W. 563 (1905).

The concurrence concludes that the word "waives" in § 421.401(2) does not include waiver by conduct; waiver may only be express, it suggests. Concurrence, ¶ 66.

The concurrence's analysis has nothing to do with the statute or case law, however. It chooses this approach, ignoring the generally understood meaning of waiver, because it is a simple, "bright line" rule, and because it will better protect consumers. See id., ¶¶ 67-70.

None of these policy-oriented reasons justify changing the well-settled meaning of the word "waives" — a meaning surely known by the legislature when drafting this statute. If the legislature wanted to allow only express waiver under § 421.401(2), it could have said so. The fact that it did not suggests that the legislature intended "waives" to have its ordinary, well-accepted meaning, which includes both express waiver *174and waiver by conduct. See Grobarchik v. State, 102 Wis. 2d 461, 467-68, 307 N.W.2d 170 (1981) (explaining that as a fundamental canon of statutory construction, we presume the legislature used technical terms or terms of art with their technical meaning).

The one-year statute of limitations would have begun to run with the commission of the allegedly improper debt collection practices. These occurred in November and December 2005, so the statute of limitations would have expired in late 2006.

As the concurrence likewise queries, "If Nuvell Credit's conduct in the present case does not constitute an intentional relinquishment of the known right to proper venue, what conduct would... ?" Concurrence, ¶ 66 n.6.