Brunton v. Nuvell Credit Corp., 2007AP1253.

• Court: United States State Supreme Court of Wisconsin
• Citation: 325 Wis.2d 135,785 N.W.2d 302,2010 WI 50
• Docket Number: No. 2007AP1253.,2007AP1253.
• Parties: Denice BRUNTON, Plaintiff-Appellant, v. NUVELL CREDIT CORPORATION, Defendant-Respondent-Petitioner.
• Decision Date: 24 June 2010

325 Wis.2d 135
785 N.W.2d 302
2010 WI 50

Denice BRUNTON, Plaintiff-Appellant,
v.
NUVELL CREDIT CORPORATION, Defendant-Respondent-Petitioner.

No. 2007AP1253.

Supreme Court of Wisconsin.

Argued: Oct. 13, 2009.
Decided: June 24, 2010.

785 N.W.2d 304

For the defendant-respondent-petitioner there were briefs by Walter R. Stewart, Ethan T. Miller, and W.R. Stewart & Associates, S.C., Madison, and oral argument by Ethan T. Miller and Walter R. Stewart.

For the plaintiff-appellant there was a brief by Ivan J. Hannibal, P. Jeffrey Archibald, and Archibald Consumer Law Office, Madison, and oral argument by Ivan J. Hannibal.

¶ 1

PATIENCE DRAKE ROGGENSACK, J.

325 Wis.2d 140

We review a decision of the court of appeals ¹ reversing the circuit court's decision,² which granted summary judgment in favor of Nuvell Credit Corporation (Nuvell) and dismissed plaintiff Denice Brunton's (Brunton) action. The dispositive issue in this case is whether under Wis. Stat. § 421.401(2) (2007-08) ³ Nuvell "appear[ed] and waive[d] the improper venue" such that dismissal of the action, which arose out of a consumer credit transaction, was not required. We conclude that appearance and waiver under § 421.401(2) require two actions: (1) an appearance established by conduct recognized under the law as appearance and (2) waiver established by the defendant's knowledge of the proper venue and the intentional relinquishment of the right to proper venue. Nuvell appeared by responsive pleading, court appearances and litigating its defenses. However, neither Nuvell's failure to raise the improper venue in its answer nor its other appearances in this action constituted an intentional relinquishment of the right to proper venue. Because Nuvell did not both appear and waive the improper venue, the circuit court

325 Wis.2d 141

was required to dismiss the action when Nuvell raised the venue defect. See § 421.401(2)(b). Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 2 On June 13, 2003, Brunton, a resident of Rock County, Wisconsin, bought a new car from Hesser Oldsmobile, Inc. (Hesser) a Rock County dealership. On June 26, 2003, Brunton and Hesser entered into a 72-month installment sale contract. Nuvell subsequently purchased Brunton's installment sale contract from Hesser.

¶ 3 Brunton failed to make payments on the installment sale contract in August, September, October and November 2005. Nuvell initiated debt collection activities against Brunton in November 2005.

¶ 4 On December 16, 2005, Brunton filed suit against Nuvell in Dane County Circuit Court, alleging that Nuvell violated the Wisconsin Consumer Act by engaging in debt collection practices prohibited by Wis. Stat. § 427.104. It is undisputed that this action arose out of a "consumer credit transaction" as defined in

785 N.W.2d 305

Wis. Stat. § 421.301(10).⁴ On February 2, 2006, Nuvell first appeared in the action and filed its answer, denying the

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allegations in Brunton's complaint. Over the next 14 months, the parties litigated the case in Dane County.⁵

¶ 5 On May 23, 2006, in the midst of litigating the prohibited debt collection practices suit, Nuvell commenced a replevin action against Brunton in Rock County Circuit Court. Although the parties dispute the exact words that were exchanged, it is undisputed that at an August 9, 2006 scheduling conference in the Rock County action, Brunton's lawyer recognized that filing Brunton's action in Dane County instead of Rock County was problematic under Wis. Stat. § 421.401(2)(b) and raised this issue to Nuvell's counsel. Brunton requested that Nuvell stipulate to transferring venue to Rock County, rather than her dismissing the Dane County action and re-filing in Rock County. Nuvell refused to so stipulate, and Brunton did not take any further action regarding venue.

¶ 6 On February 27, 2007, Nuvell moved for summary judgment dismissing Brunton's suit because Brunton's action arose out of a consumer credit transaction, which required venue in Rock County not in Dane County. Pursuant to Wis. Stat. § 421.401(2)(b), Nuvell argued that Brunton's action must be dismissed

325 Wis.2d 143

due to improper venue. Brunton contended that the action should not be dismissed because Nuvell appeared and waived the improper Dane County venue.

¶ 7 The circuit court granted Nuvell's motion for summary judgment. It concluded, relying on Kett v. Cmty. Credit Plan, Inc., 228 Wis.2d 1, 596 N.W.2d 786 (1999), and Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis.2d 76, 681 N.W.2d 190, that improper venue is a "jurisdictional" defect that cannot be waived and therefore whether Nuvell timely objected to the improper venue was irrelevant.

¶ 8 The court of appeals reversed the circuit court's judgment and remanded for further proceedings, holding that by actively defending against Brunton's action for more than one year prior to moving to dismiss based on improper venue, Nuvell "appear[ed] and waive[d] the improper venue" within the meaning of Wis. Stat. § 421.401(2).

¶ 9 We granted review and now reverse.

II. DISCUSSION

A. Standard of Review

¶ 10 We review summary judgment decisions independently, employing

785 N.W.2d 306

the same methodology as the circuit court. Blunt v. Medtronic, Inc., 2009 WI 16, ¶ 13, 315 Wis.2d 612, 760 N.W.2d 396 (citing Acuity v. Bagadia, 2008 WI 62, ¶ 12, 310 Wis.2d 197, 750 N.W.2d 817). Resolution of the question presented herein requires us to interpret and apply Wis. Stat. § 421.401(2). " 'The interpretation and application of a statute to an undisputed set of facts are questions of law that we review independently.' "

325 Wis.2d 144

Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶ 10, 318 Wis.2d 553, 769 N.W.2d 481 (quoting McNeil v. Hansen, 2007 WI 56, ¶ 7, 300 Wis.2d 358, 731 N.W.2d 273).

B. The Parties' Positions

¶ 11 The parties offer competing interpretations of Wis. Stat. § 421.401(2). Before examining the language of the statute, it is instructive to summarize each party's arguments.

1. Brunton's position

¶ 12 Brunton argues that Wis. Stat. §§ 801.50 and 801.51, the general venue statutes, apply here instead of Wis. Stat. § 421.401(2). Section 801.51 permits any party to challenge venue on the grounds of noncompliance with § 801.50 "or any other statute designating proper venue." Brunton contends that this language incorporates § 421.401, the Wisconsin Consumer Act's venue statute. Section 801.51(1) requires a party to file a motion for a change of venue "[a]t or before the time the party serves his or her first motion or responsive pleading in the action." Accordingly, Brunton argues that Nuvell waived its challenge to venue because Nuvell's answer-its first responsive pleading-failed to raise the issue of improper venue.

¶ 13 Alternatively, Brunton argues that even if Wis. Stat. § 801.51 does not apply, Wis. Stat. § 421.401(2) permits waiver of the improper venue. She contends we must construe waiver under § 421.401(2) as an implied waiver. Under Brunton's implied waiver argument, the improper venue is waived unless a defendant raises an objection to improper venue at the outset of litigation (i.e., in a party's first motion or

325 Wis.2d 145

responsive pleading). Because Nuvell failed to timely raise an objection to improper venue, Brunton argues Nuvell waived the improper venue.⁶

2. Nuvell's position

¶ 14 Relying on Kett, Nuvell argues that it did not appear and waive the improper venue because Wis. Stat. § 421.401(2) requires an express waiver, and it did not expressly waive improper venue. Nuvell contends that requiring an express waiver properly puts the onus on plaintiffs to file in the proper county instead of requiring defendants to cure improper venue by raising an objection at the outset of litigation.

¶ 15 Nuvell further argues that an implied waiver is insufficient to constitute waiver under Wis. Stat. § 421.401(2) in light of the Wisconsin Consumer Act's purpose, which is to protect consumers. Nuvell notes that consumers will ordinarily be defendants in actions arising from consumer credit transactions. Accordingly, an express waiver is necessary to protect consumer defendants from inadvertently waiving improper venue by failing to object to improper venue in the first responsive pleading.

C. General Principles of Statutory Interpretation

¶ 16 Interpretation of a statute requires us to determine what the statute

785 N.W.2d 307

means.

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State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.' " Id., ¶ 45 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis.2d 211, 612 N.W.2d 659). Statutory language is read to give effect to every word, to avoid surplusage and to avoid absurd results. Id., ¶ 46. Further, statutory language is given its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶ 45. Plain meaning may be ascertained not only from the words employed in the statute, but also from the context in which the words are used. Id., ¶ 46.

¶ 17 In construing a statute, we favor a construction that fulfills the purpose of the statute over one that undermines the purpose. Cnty. of Dane v. LIRC, 2009 WI 9, ¶ 34, 315 Wis.2d 293, 759 N.W.2d 571. "[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose." Kalal, 271 Wis.2d 633, ¶ 49, 681 N.W.2d 110. While extrinsic sources are usually not consulted if the statutory meaning is plain, legislative history may be consulted "to confirm or verify a plain-meaning interpretation." Id., ¶ 51.

D. Wisconsin Stat. §§ 801.50 and 801.51

¶ 18 Brunton urges us to apply Wis. Stat. §§ 801.50 and 801.51, the general venue statutes, because she contends they apply to all venue challenges. We disagree. Section 801.50...