Randall v. Prairie City Bank
| Decision Date | 07 December 1989 |
| Docket Number | No. 88-1742,88-1742 |
| Citation | 452 N.W.2d 585,153 Wis.2d 772 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Renee RANDALL, Plaintiff-Appellant, v. PRAIRIE CITY BANK, a Wisconsin banking corporation, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Crawford County.
AFFIRMED.
Appeal from a judgment of the circuit court for Crawford county: Michael Kirchman, Judge.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Renee Randall appeals from a summary judgment dismissing her complaint against Prairie City Bank claiming damages under the Wisconsin consumer act (WCA), chs. 421-427, Stats. She alleges that the bank harmed her in two replevin actions against her by failing to apply to the circuit court for confirmation hearings following the bank's disposition of the collateral. Section 425.203(3)(a), Stats., provides, in substance, that after recovery of collateral pursuant to a judgment the merchant may retain the collateral in satisfaction of the debt or dispose of it by private or public sale, and if it is sold, "[t]he merchant shall apply to the court which entered the judgment ... to confirm the sale." The notice of the application for confirmation must also contain an accounting.
We deem the issues to be whether (1) a customer may waive the right to a confirmation hearing and (2) Randall waived the right. We conclude that the right may be waived, that Randall agreed to waive her right unless she objected to the bank's accounting, and that she lost her right to object by remaining silent for eleven months after the bank provided the accounting. We affirm the judgment.
Section 802.08, Stats., governs summary judgment. The methodology for reviewing summary judgment motions has been stated in many cases, such as Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476-77 (1980), and need not be repeated. Our review is de novo and independent of the trial court's decision. Id. As a preliminary matter, the trial court made findings of fact when deciding the summary judgment motion. That was an unnecessary step. Trial courts do not make findings under summary judgment methodology. State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 515, 383 N.W.2d 916, 919 (Ct.App.1986).
Randall's complaint alleges that she was a customer and the bank was a merchant and lender within the meaning of the WCA in two credit transactions. The bank brought actions on her notes, took judgments on the notes, took possession of and sold her personal property which was collateral for the notes, and did not apply to the court for confirmation hearings. No such hearings were ever held. She alleges that the bank's failure to apply for the hearings harmed her and she requests damages. Section 425.301(1), Stats., states that the remedies provided by the WCA "shall be liberally administered to the end that the customer as the aggrieved party shall be put in at least as good a position as if the creditor had fully complied with chs. 421 to 427." We conclude that the complaint states a claim.
The bank's answer admits all the allegations save those that Randall was harmed. As an affirmative defense, the bank pleads that by virtue of a stipulation in a separate action Randall waived her right to confirmation hearings.
We conclude that the answer states a defense. We reject Randall's argument that Southern Wis. Cattle Credit v. Lemkau, 140 Wis.2d 830, 837-38, 412 N.W.2d 159, 162 (Ct.App.1987), requires a confirmation hearing in all instances. No waiver issue was raised in that case. A person may waive a statutory right or benefit unless such a waiver would violate public policy. Faust v. Ladysmith-Hawkins School Systems, 88 Wis.2d 525, 532-33, 277 N.W.2d 303, 306 (1979). Randall has not argued that the waiver of a confirmation hearing contravenes a public policy, and we are aware of no policy served by requiring, under all circumstances, judicial confirmation of a sale of collateral.
We turn to the affidavits supporting the bank's motion to determine if it, as the moving party, has established a prima facie defense to Randall's claim. The bank's attorney avers by affidavit that the bank brought replevin proceedings and took judgment on the notes. The proceedings were stayed because Randall filed bankruptcy. The bankruptcy court lifted the stay after finding that Randall had no equity in the collateral. In a foreclosure action unrelated to the two replevin actions the bank and Randall stipulated, and the findings of fact and conclusions of law by the court incorporated by the judgment provided in relevant part that:
it is specifically agreed that the [bank] would [sic] provide Renee Randall with an accounting of the auction proceeds relative to [the two replevin actions], and that if there are any disputes as to the crediting of such proceeds, a confirmation hearing will be held before the court with request for proper accounting and crediting of interest or principal.
The attachments to the attorney's letter to Randall dated April 13, 1984 accounted for the proceeds from the sale. The letter stated, Randall did not object to the accounting until May 1985.
Stipulations incorporated into judgments are contracts between the parties, Duras v. Keller, 176 Wis. 88, 91, 186 N.W. 149, 151 (1922), and the rules of construction for judgments are no different than for any other written instrument, Wright v. Wright, 92 Wis.2d 246, 255, 284 N.W.2d 894, 899 (1979), cert. denied, 445 U.S. 951 (1980). Whether a document is ambiguous is a question of law. Lamb v. Manning, 145 Wis.2d 619, 627, 427 N.W.2d 437, 441 (Ct.App.1988).
The stipulation unambiguously requires Randall to object to the bank's accounting before a confirmation hearing is necessary. That can be the only reason for the language "if there are any disputes ... a confirmation hearing will be held." We cannot ignore that language. An agreement must generally be construed so that no part of it is rendered surplusage. Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 366, 377 N.W.2d 593, 602 (1985).
Waiver of a statutory right is the intentional and voluntary relinquishment of a known right and must be a clear and specific renunciation. Mulvaney v. Tri State Truck & Auto Body, Inc., 70 Wis.2d 760, 768, 235 N.W.2d 460, 465 (1975). Those requirements for a waiver have been met. The stipulation specifically refers to a confirmation hearing and waives the hearing unless an objection is made to the accounting.
Although the stipulation contains no deadline for objecting to the accounting, a contract which fails to specify the time to act will be construed to allow a reasonable time. Delap v. Institute of America, Inc., 31 Wis.2d 507, 512, 143 N.W.2d 476, 478 (1966). If the facts have been established, what is a reasonable time is a question of law. Mars, Inc. v. Chubrilo, 216 Wis. 313, 318, 257 N.W. 157, 159 (1934). For purposes of summary judgment analysis, we treat the facts stated by the affidavit as established. Randall's failure to object within eleven months was unreasonable. For that reason, we conclude that the bank has established a prima facie defense that Randall waived her right to a confirmation hearing.
We therefore examine Randall's...
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