Thursday, June 24, 2010

Decision in 'Brunton v. Nuvell Credit Corporation' 2010 WI 50

Wisconsin Supreme Court decision today in this case (2007AP1253) reversing the Court of Appeals, 2009 WI App 3, 316 Wis. 2d 313, 762 N.W.2d 685 (2009). See Argument.
Opinion by Justice Roggensack, joined by Justices Crooks, Prosser, and Ziegler.
¶22 We conclude that Wis. Stat. §§ 801.50 and 801.51, the general venue statutes, do not apply to actions arising from consumer credit transactions. Rather, the venue provision in Wis. Stat. § 421.401 applies.
¶49 ... Nuvell did not expressly waive the improper venue. This is so because there was no written stipulation filed with the court or oral stipulation made in open court on the record stating that Nuvell intended to waive its right to proper venue. ...
¶50 ... Continued litigation of an action does not unambiguously demonstrate an intention to relinquish the right to proper venue. This is so because such conduct may also reasonably be interpreted as Nuvell defending itself against Brunton's lawsuit.[footnote omitted]
Concurrence by Chief Justice Abrahamson, joined by Justice Bradley.
¶66 I disagree that "waives" in Wis. Stat. § 421.401(2) includes waiver by conduct.[footnote omitted] Rather, I agree with Nuvell Credit that the meaning of "waives" in Wis. Stat. § 421.401(2) requires an express waiver of improper venue. An express waiver is an affirmative expression in writing or by oral stipulation on the record in open court. Such an affirmative expression must be voluntarily, knowingly, and intelligently made.
Concurrence and dissent by Justice Gableman.
¶83 ... 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.[footnote omitted]

Party must intentionally relinquish venue rights to waive in consumer transaction cases, by Joe Forward, State Bar of Wisconsin