By Joe Forward, Legal Writer, State Bar of Wisconsin
June 24, 2010 – Under the general venue statute, a party waives improper venue unless the issue is raised at the first opportunity. In a consumer transaction case, however, a party does not waive improper venue without “intentionally relinquishing” the right to invoke improper venue, the Wisconsin Supreme Court held recently held.
In Brunton v. Nuvell Credit Corp., 2010 WI 50 (June 24, 2010), Denice Brunton filed suit in Dane County Circuit Court, alleging Nuvell engaged in unlawful debt collection practices under the Wisconsin Consumer Act. Brunton bought a car on installment contract in Rock County. Nuvell acquired the contract. Brunton, a Rock County resident, later defaulted on car payments.
Nuvell filed its answer in February of 2006 without raising any improper venue issue. A year later, after nearly 14 months of litigation, the circuit granted Nuvell’s summary judgment motion to dismiss the case because venue was improper. The appeals court reversed. The supreme court agreed with the circuit court and remanded the case for dismissal.
Specific venue statute
In consumer transaction cases, the court explained, venue is restricted to the county where the customer resides or is personally served, the county where the secured collateral is located, or the county where the customer acquired the property at issue. Wis. Stat. section 421.401(1).
Because Brunton was a resident of Rock County, kept the purchased car there, and bought the car at a dealership there, venue was improper in Dane County, the court explained.
Appearance and waiver
Although the venue was improper, Brunton argued, Nuvell “waived” improper venue because the general venue statute incorporates section 421.01(2) so that a party must address the issue at the first opportunity. Novell argued that the statute requires an express waiver.
Under section 421.401(2), a court lacking jurisdiction “shall dismiss” actions that arise out of consumer credit transactions, “unless the defendant appears and waives the improper venue.”
That is, for a waiver to be effective in consumer transactions cases, two distinct statutory requirements are required – appearance and waiver. The statutory provision “does not contain a time limit,” the court explained.
These requirements further the underlying purpose and policies of the Wisconsin Consumer Act – to protect consumers – since consumers are often defendants, the court noted.
Waiver in particular
Nuvell “appeared” because it filed an answer in court., the court found. The principal issue was whether Nuvell “waived” improper venue.
The court affirmed that to “waive” improper venue under section 421.401(2), there must be an" intentional relinquishment of a known right.”
That is, a party claiming waiver must first prove that the defendant “knew the place of proper venue and knew that he had the right to dismissal of the case when it was not properly venued." In addition, the party must prove those rights were “intentionally relinquished,” the court noted, which may be “demonstrated by express statement or by conduct.”
Intentional relinquishment occurs by written or oral stipulation, the court explained, or by “affirmative acts that unambiguously demonstrate [the party] knows the place of proper venue” as well as the right to dismiss, but “nonetheless intends to relinquish such rights.”
The court noted: “our interpretation correctly places the onus on plaintiffs, typically creditors, to properly venue an action or risk dismissal when the defendant brings the improper venue to the circuit court’s attention.”
The court held that Nuvell did not waive improper venue because no oral or written stipulation was filed. In addition, the court held that continued litigation “does not unambiguously demonstrate an intention to relinquish the right to proper venue.”
Even though Nuvell knew venue was improper, it was Brunton’s burden to properly venue the action, the court explained. Brunton did not do so.
Chief Justice Shirley S. Abrahamson filed a concurring opinion that was joined by Justice Ann Walsh Bradley. Justice Michael J. Gableman concurred in part, dissented in part.
Walter Stewart and Ethan Miller of W.R. Stewart & Associates, Madison, represented Nuvell Credit Corp. Ivan J. Hannibal and P. Jeffrey Archibald of the Archibald Consumer Law Office, Madison, represented Denice Brunton.