Danelle Duncan v. Asset Recovery Specialists, Inc. ( 2022 )

2022 WI 1SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1365
COMPLETE TITLE: Danelle Duncan,
Plaintiff-Appellant,
v.
Asset Recovery Specialists, Inc., Greg Strandlie
and Wells Fargo Bank, N.A.,
Defendants-Respondents-Petitioners.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 393 Wis. 2d 814,948 N.W.2d 419PDC No:2020 WI App 54 - Published
OPINION FILED: January 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 15, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Stephen E. Ehlke
JUSTICES:
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶29, 31-34, in which ANN WALSH
BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion
with respect to ¶¶29, 31-34, in which ANN WALSH BRADLEY and
HAGEDORN, JJ., joined. KAROFSKY, J., filed a concurring
opinion. ROGGENSACK, J., filed a dissenting opinion in which
ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-respondents-petitioners, there were
briefs filed by William W. Ehrke, Micaela Haggenjos, and
Crivello Carlson S.C., Milwaukee. There was an oral argument by
William W. Ehrke.
For the plaintiff-appellant, there was a brief filed by
Briane F. Pagel and Lawton & Cates, S.C., Madison. There was an
oral argument by Briane F. Pagel.
An amicus curiae brief was filed on behalf of Wisconsin
Bankers Association by James E. Bartzen and Boardman & Clark
LLP, Madison.
An amicus curiae brief was filed on behalf of The Wisconsin
Credit Union League and American Financial Services Association
by Lisa M. Lawless and Husch Blackwell LLP, Milwaukee; and Marci
V. Kawski, Lauren C. Capitini and Husch Blackwell LLP, Madison.
2
2022 WI 1NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1365
(L.C. No. 2017cv1704)
STATE OF WISCONSIN : IN SUPREME COURT
Danelle Duncan,
Plaintiff-Appellant, FILED
v. JAN 6, 2022
Asset Recovery Specialists, Inc., Greg Sheila T. Reiff
Strandlie and Wells Fargo Bank, N.A., Clerk of Supreme Court
Defendants-Respondents-Petitioners.
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶29, 31-34, in which ANN WALSH
BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined, and an opinion
with respect to ¶¶29, 31-34, in which ANN WALSH BRADLEY and
HAGEDORN, JJ., joined. KAROFSKY, J., filed a concurring
opinion. ROGGENSACK, J., filed a dissenting opinion in which
ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Modified and
affirmed and, as modified, cause remanded.
¶1 REBECCA FRANK DALLET, J. Danelle Duncan left her car
in her parking spot in the garage on the ground floor of her
apartment building. When she returned a short time later, the
car was gone. She later learned that Defendants——Asset Recovery
Specialists, Inc.; Wells Fargo Bank, N.A.; and Greg Strandlie——
No. 2019AP1365
had entered the garage without her consent and repossessed the
car.
¶2 Duncan alleges that Defendants violated the Wisconsin
Consumer Act by "[e]ntering a dwelling used by the customer as a
residence except at the voluntary request of a customer" during
the repossession. See Wis. Stat. § 425.206(2)(b) (2017-18).1 We
agree and hold that "dwelling used by the customer as a
residence" in § 425.206(2)(b) includes a garage attached to the
residential building in which the customer lives. In her
complaint, Duncan also alleged that Defendants' conduct during
and after the repossession was unconscionable in violation of
Wis. Stat. § 425.107. We hold that claims of unconscionability
under § 425.107 are available only in "actions or other
proceedings brought by a creditor to enforce rights arising from
consumer credit transactions," see Wis. Stat. § 425.102, and
that a non-judicial repossession under § 425.206(1)(d), like the
one Defendants performed in this case, is not such an action or
other proceeding. As a result, Duncan's unconscionability claim
must be dismissed. We therefore affirm the decision of the
court of appeals, as modified by our conclusion on
unconscionability, and remand to the circuit court for further
proceedings.
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated.
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No. 2019AP1365
I
¶3 Duncan bought her car from a dealership and financed
the purchase with a loan. The loan, which created a security
interest in the car, was later assigned to Wells Fargo Bank.
After Duncan defaulted on the loan, the Wisconsin Consumer Act
(Wis. Stat. chs. 421-427) provided the bank with two ways to
take possession of the car. It could either obtain a judgment
for return of the car by filing a replevin action under Wis.
Stat. § 425.205 or follow the statutory process for a non-
judicial repossession under Wis. Stat. §§ 425.205(1g)(a)
and 425.206(1)(d). Wells Fargo pursued the latter option,2 and
hired Asset Recovery Specialists, owned by Greg Strandlie, to
repossess Duncan's car.
¶4 At that time, Duncan lived in a multi-story, multi-
unit apartment building. The ground floor of the building is
made up entirely of parking for residents and includes at least
56 parking spaces. Duncan leased a parking space in the garage
under an agreement separate from her apartment lease. To access
the residential floors and apartments from the garage, or to
2 It is undisputed that Wells Fargo met the statutory
requirements to proceed with a non-judicial repossession under
Wis. Stat. § 425.206(1)(d). Specifically, Wells Fargo provided
notice to Duncan, pursuant to Wis. Stat. § 425.205(1g)(a),
including notice of Duncan's right to demand that Wells Fargo
proceed by filing a replevin action. See § 425.205(1g)(a)3.
Had Duncan made such a demand, § 425.206(1)(d) would have barred
Wells Fargo from repossessing the car without first obtaining
judgment in a replevin action brought under § 425.205. The
parties agree that Duncan made no such demand, and therefore no
replevin action was required.
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No. 2019AP1365
enter the garage on foot from the outside, residents must use
keys. To drive into the garage, residents must use a garage
door opener.3
¶5 When Strandlie and one of his employees arrived to
repossess Duncan's car, however, they found the garage door
open. They went in, located Duncan's car, and towed it away.
Neither Strandlie nor the employee interacted with Duncan at the
time. A maintenance worker was in the garage at the time of the
repossession and did not object.
¶6 Duncan filed this case in circuit court4 alleging,
among other things, that Defendants violated Wis. Stat.
§ 425.206(2)(b) when they entered the parking garage to
repossess her car and that Defendants' conduct during and after
the repossession was unconscionable in violation of Wis. Stat.
§ 425.107(1).5
3 As the court of appeals noted, the parties dispute other
facts about the garage, including whether signs were posted
restricting entry. See Duncan v. Asset Recovery Specialists,
Inc., 2020 WI App 54, ¶5 n.3, 393 Wis. 2d 814, 948 N.W.2d 419.
Like the court of appeals, we conclude that these factual
disputes are immaterial to our interpretation and application of
Wis. Stat. § 425.206(2)(b). See id.
4 The Honorable Stephen E. Ehlke of the Dane County Circuit
Court presided.
5 Duncan initially brought these claims in an action in
federal court alongside other claims under state and federal
law. See Duncan v. Asset Recovery Specialists, Inc., No. 16-cv-
530-WMC, 2017 WL 2870520 (W.D. Wis. July 5, 2017), aff'd 907
F.3d 1016 (7th Cir. 2018). The federal court dismissed the
claims at issue in this case without prejudice. See id. at *6-
7.
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No. 2019AP1365
¶7 The circuit court granted summary judgment to
Defendants on all claims, concluding that entering the garage to
repossess the car did not violate Wis. Stat. § 425.206(2)(b) and
that Duncan's unconscionability claim failed as a result. The
circuit court reasoned that § 425.206(2)(b) did not apply
because Duncan had no right to exclude all others from the
garage and that the garage "offers no use that is primarily or
intimately tied to the use of her apartment, for example,
sleeping, eating or conducting her private life."
¶8 The court of appeals reversed. Duncan v. Asset
Recovery Specialists, Inc., 2020 WI App 54, 393 Wis. 2d 814, 948
N.W.2d 419. The court of appeals reasoned that "dwelling used
by [Duncan] as a residence" included the parking garage, relying
on the language of Wis. Stat. § 425.206(2)(b); another part of
the Wisconsin Consumer Act, Wis. Stat. § 422.419(1)(a); and an
administrative rule interpreting § 422.419(1)(a), Wis. Admin.
Code § DFI-WCA 1.392 (July 2007)6. See Duncan, 393 Wis. 2d 814,
¶2. Based on its reading of those provisions, the court of
appeals also rejected any interpretation of the phrase "dwelling
used by the customer as a residence" that "turns on
considerations of ownership or the right to exclude" or the
would-be repossessors' subjective evaluation of whether a
particular location showed some "indicia of residential use."
Id., ¶¶33-35 (internal quotation marks omitted). Because the
All subsequent references to the Wis. Admin. Code ch. DFI-
6
WCA 1 are to the July 2007 register date unless otherwise
indicated.
5
No. 2019AP1365
circuit court dismissed the unconscionability claim on the same
grounds as the repossession claim, the court of appeals remanded
to give the parties and the circuit court the opportunity to
address in the first instance whether the unconscionability
claim should be dismissed for other reasons.
II
¶9 At issue in this case is the interpretation and
application of Wis. Stat. §§ 425.206(2)(b) and 425.107(1).
Statutory interpretation is a question of law that we review de
novo. See, e.g., Clean Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398
Wis. 2d 433, 961 N.W.2d 611. "When interpreting statutes, we
start with the text, and if its meaning is plain on its face, we
stop there." Id. We also consider the broader statutory
context, interpreting language consistently with how it is used
in closely related statutes. Id. Our analysis is further
informed by the legislature's explicit statements of legislative
purpose and those reflected in a statute's context and
structure. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110.
III
¶10 We begin with Duncan's claim that Defendants violated
Wis. Stat. § 425.206(2)(b) by entering the parking garage of her
apartment building to repossess her car. Section 425.206(2)
states as follows:
In taking possession of collateral or leased goods, no
merchant may do any of the following:
(a) Commit a breach of the peace.
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No. 2019AP1365
(b) Enter a dwelling used by the customer as a
residence except at the voluntary request of a
customer.
It is undisputed that Defendants are "merchant[s]," that Duncan
is "the customer," and that Duncan made no "voluntary request"
for Defendants to enter the garage. See id.; Wis.
Stat. § 421.301(17), (25). To determine whether the
repossession was proper, we must therefore answer a single
question: Did Defendants enter "a dwelling used by [Duncan] as
a residence" when they repossessed her car from the first-floor
parking garage of her apartment building? In answering that
question, we first determine the meaning of "dwelling" as it is
used in § 425.206(2)(b) before analyzing the phrase that
modifies it, "used by the customer as a residence."
A
¶11 Although "dwelling" is undefined in the Wisconsin
Consumer Act, it is a common word and the parties generally
agree on its ordinary, dictionary definition. "Dwelling"
typically refers to "a building or other shelter in which people
live." See, e.g., Webster's Seventh New Collegiate Dictionary
259 (16th ed. 1967); American Heritage Dictionary 406 (6th ed.
1976) (defining "dwelling" as "[a] place to live in; residence;
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No. 2019AP1365
abode").7 In other words, a dwelling is a building in which at
least one person lives.
¶12 That definition is consistent with the use of
"dwelling" elsewhere in the statutes at the time the Wisconsin
Consumer Act was adopted in 1971. See Spielmann v. Indus.
Comm'n, 236 Wis. 240, 250, 295 N.W. 1 (1940) (explaining that
statutory terms should be interpreted consistently with the
"definition contained in the statutes in force at the time the
act was passed"). For example, Wis. Stat. § 990.01(13)(a)
(1971-72) defined "homestead" to mean "the dwelling and so much
of the land surrounding it as is reasonably necessary for use of
the dwelling as a home, but not less than one-fourth acre (if
available) and not exceeding 40 acres." Id. Similarly, Wis.
Stat. § 852.09(2) (1971-72) defined "home" as "any dwelling in
the estate of the decedent which at the time of his death the
7Black's Law Dictionary contains similar definitions. At
the time the Wisconsin Consumer Act was adopted, Black's defined
"dwelling house" as "[t]he house in which a man lives with his
family; a residence; abode; habitation; the apartment or
building or group of buildings, occupied by a family as a place
of residence." Dwelling House, Black's Law Dictionary 596 (4th
rev. ed. 1968). The subsequent edition of Black's included a
very similar definition of "dwelling," which is nearly identical
to the current edition's definition: "The house or other
structure in which a person or persons live; a residence; abode;
habitation; the apartment or building, or group of buildings,
occupied by a family as a place of residence. Structure used as
place of habitation." Dwelling, Black's Law Dictionary 454 (5th
ed. 1979); see also Dwelling House, Black's Law Dictionary 641
(11th ed. 2019). These definitions accord with the ordinary
dictionary definition of "dwelling" and reinforce our ultimate
conclusion that "dwelling" in Wis. Stat. § 425.206(2)(b) refers
to a building in which at least one person lives.
8
No. 2019AP1365
surviving spouse occupies or intends to occupy." Id.
Section 852.09(2) further explained that this language included
"a house, a mobile home, a duplex or multiple apartment building
one unit of which is occupied by the surviving spouse, or a
building used in part for a dwelling and in part for commercial
or business purposes." Id. Thus, at the time the Wisconsin
Consumer Act was adopted, "dwelling" meant, at a minimum, a
building in which at least one person lived. The term referred
to the entire building, not just the parts of the building in
which the residents might eat, sleep, or shower.
¶13 Aside from Wis. Stat. § 425.206(2)(b), the Wisconsin
Consumer Act uses "dwelling" twice, both times in ways
consistent with the ordinary understanding of the word and its
usage elsewhere in the statutes. See Clean Wis., 398
Wis. 2d 433, ¶10 (noting that we interpret statutory language
"consistent with how it is used in closely related statutes").
"Dwelling" appears first in Wis. Stat. § 422.409(2), which
imposes requirements on certain payment-assignment notices. See
id. (requiring that such notices include the total of payments
"except in the case of a transaction secured by a first lien
mortgage or equivalent security interest for the purpose of the
acquisition of a dwelling"). It is clear from the language of
§ 422.409(2)——particularly its reference to a "mortgage or
equivalent security interest"——that "dwelling" refers to a
building in which at least one person lives and not just certain
rooms within a building.
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No. 2019AP1365
¶14 The second time "dwelling" appears in the Act is in
Wis. Stat. § 422.419(1)(a), which prohibits consumer credit
contracts from allowing "[t]he merchant or other person acting
on the merchant's behalf . . . to enter the customer's dwelling
or to commit any breach of the peace in the course of taking
possession of collateral securing the transaction." This
statute is the subject of an administrative rule adopted shortly
after the Act took effect. See 210 Wis. Admin. Reg. 72 (June 1,
1973); see also Wis. Stat. § 426.104(1)(e) (authorizing the
Department of Financial Institutions' administrator to
"adopt . . . rules to carry out the policies of chs. 421 to 427
and 429"). That rule, Wis. Admin. Code § DFI-WCA 1.392,
specifies that, for purposes of § 422.419(1)(a), "dwelling"
includes "any garage, shed, barn or other building on the
premises whether attached or unattached."
¶15 In light of the relationship between Wis.
Stat. §§ 425.206(2) and 422.419(1)(a), the Department's rule
reinforces our reading of "dwelling" in § 425.206(2)(b). As
discussed above, § 425.206(2) prohibits merchants from breaching
the peace or entering a dwelling used by the customer as a
residence during a repossession. And § 422.419(1)(a) prohibits
merchants from contracting around that prohibition. As the
court of appeals put it in this case, these statutes "appear to
be two sides of the same coin." Duncan, 393 Wis. 2d 814, ¶28.
Because "dwelling" in § 422.419(1)(a) includes any garage on the
premises, see Wis. Admin. Code § DFI-WCA 1.392, Defendants could
not have contracted for the right to repossess Duncan's car from
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No. 2019AP1365
her apartment building's parking garage. We see no reason why
"dwelling" in § 425.206(2)(b) should exclude that same garage,
especially since both statutes prevent merchants from entering a
dwelling to repossess property.
¶16 To be clear, we do not adopt the administrative
definition of "dwelling" as the statutory definition under Wis.
Stat. § 425.206(2)(b). Rather, we rely on the administrative
definition only as further support for our conclusion that
"dwelling" in § 425.206(2)(b) means, at a minimum, a building in
which at least one person lives. Based on that definition,
Duncan's "dwelling" includes the parking garage, because it is
located in the building in which she lives. The remaining
question then is whether the phrase "used by the customer as a
residence" nevertheless excludes the garage.
B
¶17 Despite the parties' general agreement on the common
meaning of "dwelling," they offer competing readings of the
phrase "used by the customer as a residence." Defendants assert
that a "residence" is the place where a person "actually lives."
They conclude that "used by the customer as a residence" limits
"dwelling" to only the parts of the building that are also
"integral parts" of a residence; for example, the areas in which
a person might sleep, eat, cook, or shower. Because Duncan did
not sleep, eat, cook, or shower in the garage, Defendants claim
that they could lawfully enter the garage because it was not
used by Duncan as a residence. In contrast, Duncan suggests
that "used by the customer as a residence" simply distinguishes
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No. 2019AP1365
her particular dwelling from all other dwellings. She therefore
acknowledges that Defendants would not have violated Wis. Stat.
§ 425.206(2)(b) if they had repossessed her car from the parking
garage of a different apartment building, or while it was parked
in a friend's open garage.
¶18 We agree with Duncan's interpretation and conclude
that "used by the customer as a residence" distinguishes the
customer's dwelling from all other dwellings. To begin with,
this is the more natural reading of the language of Wis. Stat.
§ 425.206(2)(b). As we have already explained, "dwelling"
generally refers to an entire building in which people live.
The modifier "used by the customer as a residence" is best
understood as imposing a limitation on which dwelling
§ 425.206(2)(b) protects——the dwelling this customer uses as a
residence——not what parts of the dwelling it protects. Nothing
in the language "dwelling used by the customer as a residence"
suggests that the protections in § 425.206(2)(b) are limited to
only the "integral parts" of a residence or the areas with
"indicia of residential use." Indeed, the best evidence against
those interpretations is that neither phrase appears in the
statute.
¶19 Additionally, reading "used by the customer as a
residence" as distinguishing the customer's dwelling from all
other dwellings provides simple, clear guidance to parties to
consumer credit transactions. This interpretation makes clear
to merchants that "dwelling used by the customer as a residence"
refers to the customer's entire dwelling, the full structure in
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No. 2019AP1365
which she lives. In this respect, our interpretation of Wis.
Stat. § 425.206(2)(b) furthers one of the legislatively
expressed purposes of the Wisconsin Consumer Act,8 namely
"simplify[ing], clarify[ing], and moderniz[ing] the law
governing consumer transactions." See Wis. Stat.
§ 421.102(2)(a); see also § 421.102(1) (directing courts to
"liberally construe[] and appl[y]" the Wisconsin Consumer Act in
furtherance of its expressed purposes and policies); Kalal, 271
Wis. 2d 633, ¶49 (explaining that when the legislature states
the purposes of a statute, we interpret the statute in light of
those purposes).
¶20 In contrast, Defendants' reading of "used by the
customer as a residence" is unworkable. See Kalal, 271
Wis. 2d 633, ¶46 (explaining that we should read statutes to
avoid "unreasonable results"). Defendants' proposed
interpretation of Wis. Stat. § 425.206(2)(b) requires merchants
to perform a case-by-case analysis of how the customer uses
certain parts of her dwelling to decide whether a repossession
is permitted. But Defendants offer no principled way to decide
when "indicia of residential use" or "residential activities"
8 There are four legislatively expressed purposes of the
Wisconsin Consumer Act: (1) "[t]o simplify, clarify, and
modernize the law governing consumer transactions"; (2) "[t]o
protect consumers against unfair, deceptive, false, misleading
and unconscionable practices by merchants"; (3) "[t]o permit and
encourage the development of fair and economically sound
consumer practices in consumer transactions"; and (4) "[t]o
coordinate the regulation of consumer credit transactions with
the policies of the federal consumer credit protection act."
Wis. Stat. § 421.102(2)(a)-(d).
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No. 2019AP1365
are prevalent or frequent enough such that a particular part of
a dwelling is "used by the customer as a residence." Even more
to the point, Defendants fail to explain how a would-be
repossessor would know, without entering the building first,
whether a customer sometimes sleeps, eats, cooks, or showers in
a particular part of her dwelling.
¶21 Like the court of appeals, we also reject any
definition of "dwelling used by the customer as a residence"
that depends on whether the customer has the right to exclude
others from a particular area or whether the customer has a
reasonable expectation of privacy in a particular area under the
Fourth Amendment.9 For one thing, there is no basis in the text
of Wis. Stat. § 425.206(2)(b) for either notion. The statute's
protections apply to a building——the "dwelling"——that the
customer uses in a particular way——"as a residence." Its
protections turn on neither who owns the building nor what level
of privacy a resident might reasonably expect. Additionally,
the Wisconsin Consumer Act reflects a balance the legislature
struck between customers' and merchants' interests in certain
transactions. That courts have struck a different balance
between citizens and law enforcement in the Fourth Amendment
context says nothing about how we should interpret
§ 425.206(2)(b).
9 See, e.g., State v. Dumstrey, 2016 WI 3, ¶51, 366
Wis. 2d 64, 873 N.W.2d 502 (concluding that a parking garage
under the defendant's apartment building was not curtilage and
that the defendant lacked a reasonable expectation of privacy
there).
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No. 2019AP1365
¶22 Similarly, it is irrelevant whether Defendants
breached the peace by entering Duncan's garage. The text and
structure of Wis. Stat. § 425.206(2)(b) make clear that
"[e]nter[ing] a dwelling used by the customer as a residence" is
not synonymous with breaching the peace. Section 425.206(2)(a)
codifies the rule in the Uniform Commercial Code prohibiting
repossessions in breach of the peace. See Wis. Stat.
§ 409.609(2)(b); see also Hollibush v. Ford Motor Credit Co.,
179 Wis. 2d 799, 806, 508 N.W.2d 449 (Ct. App. 1993) (concluding
that "breach of the peace" in § 425.206(2)(a) has the same
meaning as in the Uniform Commercial Code). And § 425.206(2)(b)
separately prohibits merchants from repossessing collateral by
either breaching the peace or "enter[ing] a dwelling used by the
customer as a residence," a distinction that would make little
sense if both prohibitions meant the same thing. See Augsburger
v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385,
856 N.W.2d 874.
¶23 In sum, we conclude that "dwelling used by the
customer as a residence" in Wis. Stat. § 425.206(2)(b) includes
a garage attached to the residential building in which the
customer lives. Defendants therefore violated § 425.206(2)(b)
when they repossessed Duncan's car from the parking garage of
her apartment building without her consent.
IV
¶24 We turn next to Duncan's claim of unconscionability
pursuant to Wis. Stat. § 425.107(1). We begin with the language
of the statute:
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No. 2019AP1365
With respect to a consumer credit transaction, if the
court as a matter of law finds that any aspect of the
transaction, any conduct directed against the customer
by a party to the transaction, or any result of the
transaction is unconscionable, the court shall, in
addition to the remedy and penalty authorized in sub.
(5), either refuse to enforce the transaction against
the customer, or so limit the application of any
unconscionable aspect or conduct to avoid any
unconscionable result.
§ 425.107(1). The statute enumerates a number of different
factors the court may consider pertinent to determining whether
a transaction, conduct directed against the customer, or the
result of the transaction are unconscionable. See
§ 425.107(3)(a)-(i). In addition to the remedies specified in
subsec. (1), upon a finding of unconscionability a customer may
recover statutory and actual damages pursuant to Wis. Stat.
§ 425.303. See § 425.107(5).
¶25 The general rule in the Wisconsin Consumer Act is that
"[a]ny right or obligation declared" in the Act "is enforceable
by action unless the provision declaring it specifies a
different and limited effect." Wis. Stat. § 425.301(2). But
Wis. Stat. § 425.102 states that the provisions of that
subchapter, including the unconscionability provision in Wis.
Stat. § 425.107, "appl[y] to actions or other proceedings
brought by a creditor to enforce rights arising from consumer
credit transactions and to extortionate extensions of credit
under s. 425.108."10 We are therefore left with two
Duncan does not allege a violation of
10 Wis. Stat.
§ 425.108, which prohibits extortionate extensions of credit.
As a result, we do not address the implications of Wis. Stat.
§ 425.102 on the available remedies for violations of § 425.108.
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No. 2019AP1365
questions: (1) can customers bring claims of unconscionability
under § 425.107 only in "actions or other proceedings brought by
a creditor to enforce rights arising from consumer credit
transactions"?; and (2) is a non-judicial repossession pursuant
to Wis. Stat. § 425.206(1)(d) such an action or other
proceeding?
A
¶26 Although we have not previously addressed the first
question, several federal district courts have, and all have
concluded that a consumer may raise an unconscionability claim
under Wis. Stat. § 425.107 only in response to an action or
other proceeding brought by a creditor. In Riel v. Navient
Sols., Inc., No. 16-CV-1191-JPS, 2017 WL 168900 (E.D. Wis.
Jan. 17, 2017), the court concluded that the scope statement in
Wis. Stat. § 425.102 meant that consumers could not enforce
"[s]ection 425.107's prohibitions on unconscionability via a
separate civil lawsuit." Id. at *3 (citing Tammi v. Porsche
Cars N.A., Inc., 2009 WI 83, ¶27, 320 Wis. 2d 45, 768
N.W.2d 783). The court held that, because § 425.107(1) applied
only to actions or other proceedings brought by a creditor, the
statute implied "that [customers] must raise unconscionability
in the form of an affirmative defense to [a creditor's] lawsuit
to collect the loans, if one is filed." Id. Other federal
district courts have followed Riel's reasoning. See, e.g.,
Gable v. Universal Acceptance Corp., 338 F. Supp. 3d 943, 956-57
(E.D. Wis. 2018); VanHuss v. Rausch, Sturm, Israel, Enerson &
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No. 2019AP1365
Hornik, No. 16-cv-372-slc, 2017 WL 1379402, at *10 (W.D. Wis.
Apr. 14, 2017).
¶27 We agree with the federal courts that the scope
language of Wis. Stat. § 425.102 bars a customer from bringing a
claim of unconscionability under Wis. Stat. § 425.107 except in
response to "actions or other proceedings brought by a
creditor." Although the protections of the Wisconsin Consumer
Act are generally enforceable in actions brought by consumers,
§ 425.102 makes statutory unconscionability claims available in
a more limited set of circumstances. These limitations are in
line with the common law doctrine of unconscionability, which is
a defense to contract enforcement, not an affirmative claim
available outside a contract-enforcement or breach-of-contract
action. See Rosecky v. Schissel, 2013 WI 66, ¶57, 349
Wis. 2d 84, 833 N.W.2d 634.
¶28 We therefore hold that a consumer may assert a claim
of unconscionability under Wis. Stat. § 425.107 only in response
to "actions or other proceedings brought by a creditor to
enforce rights arising from consumer credit transactions." See
Wis. Stat. § 425.102.
B
¶29 On the second question, we conclude that a non-
judicial repossession pursuant to Wis. Stat. § 425.206(1)(d) is
not one of the "actions or other proceedings brought by a
creditor" contemplated by Wis. Stat. § 425.102.11 Although
There are multiple ways a creditor can obtain the right
11
to non-judicially repossess a vehicle. The creditor may, as in
18
No. 2019AP1365
neither "actions" nor "other proceedings" is defined in the
Wisconsin Consumer Act, the context of the Act reveals that
these terms refer to creditor-initiated litigation or other
legal processes akin to litigation pursued by a creditor.
¶30 Taking the word "actions" first, this term is
consistently used throughout the Wisconsin Consumer Act to refer
to litigation. For example, Wis. Stat. § 425.205, titled
"Action to recover collateral," explains that "a creditor
seeking to obtain possession of collateral or goods subject to a
consumer lease shall commence an action for replevin of the
collateral or leased goods." § 425.205(1) (emphasis added).
The statute goes on to describe the process a creditor must
follow in filing a replevin action, and it specifies the form
and contents of the summons and complaint "in such actions."
See § 425.205(1)-(3). Several other statutes similarly use
this case, follow the notice process laid out in Wis.
Stat. §§ 425.205(1g) and 425.206(1)(d); or a creditor may, after
obtaining a judgment in a replevin action, non-judicially
repossess the vehicle. See § 425.205(5)(b). In the latter
case, "non-judicial" is something of a misnomer, since that
remedy is available only after a creditor files and prevails in
a replevin case. Section 425.205(5)(b) nevertheless refers to
this as a "nonjudicial recovery" of collateral distinct from the
creditor's right after obtaining judgment in a replevin action
to "[h]ave execution issue to require the sheriff of the county
where the collateral or leased goods may be to take the same
from the defendant and deliver it to the plaintiff."
§ 425.205(5)(a).
Our holding that "actions or other proceedings" does not
encompass non-judicial repossessions is limited to non-judicial
repossessions pursuant to § 425.206(1)(d), since a non-judicial
repossession pursuant to § 425.205(5)(b) is possible only after
a creditor prevails in an "action[] or other proceeding[]"——that
is, a replevin action. See § 425.205(1).
19
No. 2019AP1365
"action" to refer to a lawsuit or other judicial proceeding.
See, e.g., Wis. Stat. § 425.111(1) ("Prior to entry of judgment
in an action subject to this subchapter, no process, . . . shall
issue" except under certain circumstances (emphases added));
Wis. Stat. § 425.203(1) (explaining that, after certain
conditions are met, "a merchant may commence an action to
recover collateral . . . or reduce the claim to a judgment by
any available judicial procedure" (emphases added)). Unlike
these actions, non-judicial repossession under Wis.
Stat. § 425.206(1)(d) is an explicit alternative to litigation
that does not require a creditor to assert its rights in court.
Non-judicial repossession is available to a creditor
under § 425.206(1)(d) only if the customer fails to demand that
the creditor file a replevin action. See § 425.206(1)(b), (d).
As a result, a non-judicial repossession under § 425.206(1)(d)
is not an "action[]" described in § 425.102.
¶31 As for "other proceedings," we know from the phrase
"actions or other proceedings," that it, too, refers to
something like litigation. Wis. Stat. § 425.102. After all,
"actions or other proceedings" implies that "actions" (i.e.
litigation) are one type of "proceedings." Id. (emphasis
added); see Stroede v. Soc'y Ins., 2021 WI 43, ¶¶13, 15, 397
Wis. 2d 17, 959 N.W.2d 305 (explaining that in the list "owner,
lessee, tenant, or other lawful occupant," an "other lawful
occupant" covered only those persons who had the same type of
control over property as did owners, lessees, and tenants).
Other sections in ch. 425 provide further contextual support for
20
No. 2019AP1365
that conclusion. For example, Wis. Stat. § 425.110(1) prevents
employers from firing an employee because "a merchant has
subjected or attempted to subject unpaid earnings of the
employee to garnishment or like proceeding directed to the
employer for the purpose of paying a judgment arising from a
consumer credit transaction." Id. (emphasis added). The
earnings-garnishment statutes use the terms "action" and
"proceeding" synonymously, and set forth a process different in
some respects from ordinary civil litigation. See, e.g., Wis.
Stat. § 812.31(3) (referring to an "earnings garnishment
action"); § 812.31(4) (describing the form of pleadings in "an
earnings garnishment proceeding"); see also Wis. Stat. § 812.35
(laying out the process for "commenc[ing] an earnings
garnishment proceeding"). Similarly, Wis. Stat. § 425.203(3)(b)
refers to "a proceeding for a deficiency judgment pursuant to
s. 425.209(1)," which occurs in court following repossessions
performed pursuant to a replevin judgment. See also
§ 425.203(3)(a). In other words, "other proceedings" are formal
legal processes similar to litigation that allow a creditor to
enforce its rights.12
12 At the time the Wisconsin Consumer Act was adopted,
Black's Law Dictionary used the term "proceeding" almost
identically with "action." Proceeding, Black's Law Dictionary
1368 (4th rev. ed. 1968) ("In a general sense, the form and
manner of conducting juridical business before a court or
judicial officer; regular and orderly progress in form of law;
including all possible steps in an action from its commencement
to the execution of judgment."). A subsequent edition included
a slightly different definition, but not one that suggests that
non-judicial repossession is an action or proceeding.
"Proceeding" included "action and special proceedings before
21
No. 2019AP1365
¶32 Other scope provisions in the Wisconsin Consumer Act
demonstrate that "actions or other proceedings" refers to a
narrow subset of things a creditor might do to enforce its
rights. For example, Wis. Stat. § 427.102 demonstrates that
when the legislature wants a statute's scope to encompass the
full range of steps a creditor might take in recovering debts,
it knows how to write a sufficiently broad statement: "This
chapter applies to conduct and practices in connection with the
collection of obligations arising from consumer transactions."
Id. (emphasis added). Slightly narrower is Wis. Stat.
§ 425.201, which provides that subchapter II of Chapter 425
"applies to the enforcement by a creditor of security interests
in collateral." The general "enforcement . . . of security
interests" is broad enough to encompass non-judicial
repossessions, because that is a means by which a creditor may
enforce a security interest in collateral. But "actions or
other proceedings" is narrower than "conduct and practices" and
"enforcement . . . of security interests." "Actions or other
proceedings" includes only a limited subset of ways a creditor
might enforce its rights, namely through litigation or similar
formal legal processes.
judicial tribunals as well as proceedings pending before quasi-
judicial officers and boards," and "any action, hearing,
investigation, inquest, or inquiry (whether conducted by a
court, administrative agency, hearing officer, arbitrator,
legislative body, or any other person authorized by law) in
which, pursuant to law, testimony can be compelled to be given."
Proceeding, Black's Law Dictionary 1083-84 (5th ed. 1979).
22
No. 2019AP1365
¶33 Non-judicial repossessions under Wis.
Stat. § 425.206(1)(d), however, are unlike litigation. For one
thing, the non-judicial repossession process is highly informal.
Indeed, all a merchant has to do prior to non-judicially
repossessing a car is send the customer a notice containing the
disclosures required by Wis. Stat. § 425.205(1g)(a). If the
customer does nothing for 15 days, then the merchant may
repossess the car, no additional process or procedures required.
See § 425.206(1)(d). For another thing, non-judicial
repossessions under § 425.206(1)(d) are non-adversarial, and
require no third-party involvement at all, let alone that of a
neutral third party like a judge. Indeed, aside from curing the
default under Wis. Stat. § 425.105, a customer's only way of
contesting a non-judicial repossession is by demanding the
merchant instead file a replevin action in the circuit
court. §§ 425.205(1g)(a)3.; 425.206(1)(d). In other words,
non-judicial repossession is permitted only after the customer
fails to demand the creditor file an "action[] or other
proceeding[]." See §§ 425.206(1)(d); 425.102.
¶34 We therefore conclude that non-judicial repossessions
under Wis. Stat. § 425.206(1)(d) are not "actions or other
proceedings brought by a creditor." As a result, a claim of
unconscionability under Wis. Stat. § 425.107(1) is unavailable
in this case. See Wis. Stat. § 425.102.
V
¶35 We conclude that "dwelling used by the customer as a
residence" in Wis. Stat. § 425.206(2)(b) includes a garage
23
No. 2019AP1365
attached to the residential building in which the customer
lives. Defendants therefore violated § 425.206(2)(b) when they
repossessed Duncan's car from the parking garage in her
apartment building. We also conclude that Duncan's
unconscionability claim under Wis. Stat. § 425.107 fails because
such claims are available only in response to "actions or other
proceedings brought by a creditor," Wis. Stat. § 425.102, and
Defendants' non-judicial repossession of Duncan's car under Wis.
Stat. § 425.206(1)(d) was not an action or other proceeding.
Accordingly, we affirm the court of appeals' decision as
modified by our conclusion on unconscionability and remand to
the circuit court for further proceedings.
By the Court.—The decision of the court of appeals is
modified and affirmed and, as modified, the cause remanded
to the circuit court.
24
No. 2019AP1365.jjk
¶36 JILL J. KAROFSKY, J. (concurring). I agree that
Defendants violated Wis. Stat. § 425.206(2)(b) by entering
Duncan's "dwelling" and concur in the court's ultimate mandate.
I disagree, however, with the conclusion that a customer can
never raise unconscionability as a defense to a non-judicial
repossession. Because the applicable statutes plainly permit an
unconscionability defense, I respectfully concur.
I
¶37 A creditor may repossess a motor vehicle that serves
as collateral through either a judicial or a non-judicial
process. Judicial repossession follows a creditor's successful
replevin action. See Wis. Stat. §§ 425.205 & 425.206(1)(b).
Non-judicial repossession requires no court order, but the
creditor must still adhere to the legally prescribed process
under § 425.206(1)(d)-(2). That non-judicial process includes:
 Providing the customer detailed notice per § 425.205(1g);
 Taking no action for at least 15 days after that notice
is given, § 425.206(1)(d);
 Committing no "breach of the peace" when repossessing the
car, § 425.206(2)(a); and
 Abstaining from entering "a dwelling used by the customer
as a residence" absent the customer's voluntary request,
§ 425.206(2)(b).
Failure to follow these steps exposes the creditor to legal
sanctions. See § 425.206(3).
¶38 Here, in response to the non-judicial repossession of
her car, Duncan alleges that Defendants acted unconscionably
1
No. 2019AP1365.jjk
both during and after the repossession, contrary to Wis. Stat.
§ 425.107. The question is, may she raise this
unconscionability defense? To answer that question, I first
look to the plain meaning of the statutes governing
unconscionability. I then explain why we should give the
operative statutory text at issue its common, ordinary, and
accepted meaning. I conclude by applying that meaning to
Duncan's circumstances and determine that she and customers like
her may raise an unconscionability defense, regardless of which
repossession alternative a creditor brings.
A
¶39 The unconscionability defense codified in Wis. Stat.
§ 425.107 entitles a customer to additional relief "if the court
as a matter of law finds that any aspect of the transaction, any
conduct directed against the customer by a party to the
transaction, or any result of the transaction is
unconscionable." § 425.107(1). I agree with my colleagues that
this defense is subject to the scope provision at Wis. Stat.
§ 425.102, and as such is only available in response "to actions
or other proceedings brought by a creditor to enforce rights
arising from consumer credit transactions" (emphasis added). I
further agree that a non-judicial repossession is not an
"action." We diverge, however, on whether a non-judicial
repossession constitutes a "proceeding."
¶40 "Proceeding" is neither specially defined nor
technical and therefore carries its "common, ordinary, and
accepted meaning." See, e.g., Stroede v. Soc'y Ins., 2021
2
No. 2019AP1365.jjk
WI 43, ¶11, 397 Wis. 2d 17, 959 N.W.2d 305; see also Wis. Stat.
§ 990.01(1). To discern that common, ordinary, and accepted
meaning the court often looks to dictionaries as well as the
word's usage in common parlance. See, e.g., Stroede, 397
Wis. 2d 17, ¶12; Topolski v. Topolski, 2011 WI 59, ¶42, 335
Wis. 2d 327, 802 N.W.2d 482; State ex rel. McManus v. Bd. of
Trs. of Policemen's Pension Fund, 138 Wis. 133, 136, 119
N.W. 806 (1909) (adopting a word's broader "ordinary modern
usage" as used in "common parlance" over a dated common-law
meaning). Here, dictionary and judicial definitions of
"proceeding," as well as its usage in common parlance, all
confirm that "proceeding" means any legally prescribed process
for enforcing a legal right.
¶41 The Oxford English Dictionary's leading "Law"
definition for "proceeding" broadly includes "[a] legal action
or process." Proceeding, Oxford English Dictionary (3d ed.
2007) (emphasis added). That breadth is mirrored in another
dictionary's "proceeding" definition: "A course of action; a
procedure." Proceeding, American Heritage Dictionary 1444 (3d
ed. 1992). These broad dictionary definitions match
comprehensive judicial definitions of "proceeding." Several
courts have recited the Words and Phrases definition that
"proceeding" is "a very comprehensive term" generally meaning "a
prescribed course of action for enforcing a legal right." See,
e.g., Wash. Ry. & Elec. Co. v. D.C., 77 F.2d 366, 369 (D.C. Cir.
1935) (quoting Hyattsville Bldg. Ass'n v. Bouic, 44 App. D.C.
408, 413 (D.C. Cir. 1916)); Borough of Jamesburg v. Hubbs, 80
3
No. 2019AP1365.jjk
A.2d 100, 102 (N.J. 1951) (quoting Words and Phrases at 83). As
the U.S. Court of Appeals for the Eighth Circuit aptly
summarized: "'Proceeding' is a comprehensive term meaning the
action of proceeding——a particular step or series of steps,
adopted for accomplishing something. This is the dictionary
definition as well as the meaning of the term in common
parlance." Rice v. United States, 356 F.2d 709, 712 (8th
Cir. 1966).
¶42 Indeed, in common parlance "proceeding" regularly
describes a legally prescribed process for enforcing rights that
occurs without any litigation before a judicial or
administrative tribunal. For example, under the United States
Code the federal government may execute a civil forfeiture of
certain contraband via a "nonjudicial civil forfeiture
proceeding." 18 U.S.C. § 983 (2018).1 The United State Supreme
Court has dubbed similar non-judicial forfeitures permitted
under 19 U.S.C. §§ 1607-09 as "nonjudicial, summary forfeiture
proceedings." See United States v. Von Neumann, 474 U.S. 242,
244 n.4 (1986); United States v. Eight Thousand Eight Hundred &
Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 557 n.2
(1983). More recently, the Court referred to Colorado's non-
judicial foreclosure procedure as "nonjudicial foreclosure
proceedings," as did the Tenth Circuit opinion the Court was
1Courts interpreting 18 U.S.C. § 983 similarly use the
"nonjudicial civil forfeiture proceeding" or "nonjudicial
forfeiture proceeding" moniker. See, e.g., Omidi v. United
States, 851 F.3d 859 (9th Cir. 2017); Langbord v. U.S. Dep't of
Treasury, 832 F.3d 170, 182 (3d Cir. 2016). All references to
the United States Code are to the 2018 version.
4
No. 2019AP1365.jjk
reviewing. See Obduskey v. McCarthy & Holthus LLP,
___ U.S. ____, 139 S. Ct. 1029 (2019), aff'g Obduskey v. Wells
Fargo, 879 F.3d 1216 (10th Cir. 2018). State courts speak
similarly, such as the California Supreme Court discussing that
state's "nonjudicial foreclosure proceedings." Dreyfuss v.
Union Bank of Cal., 11 P.3d 383, 385-86, 390 (Cal. 2000). Other
examples abound.2
¶43 Taken together, the dictionary and judicial
definitions of "proceeding" as well as that word's usage in
common parlance converge on one, comprehensive common, ordinary,
and accepted meaning: a legally prescribed process for
enforcing a legal right.
B
¶44 I would simply give "proceeding" its common, ordinary,
and accepted meaning here. I see nothing in the statutory
context that requires a different result. True, context and a
word's relationship "to the language of surrounding or closely-
related statutes" can affect a word's otherwise common,
ordinary, and accepted meaning. See, e.g., Stroede, 397 Wis. 2d
17, ¶11. It is also true that in the statutes surrounding Wis.
Stat. § 425.102, "proceeding" is most often used to connote
"something like litigation." But that fact does not in and of
2See, e.g., United States v. Henderson, 707 F.2d 853 (5th
Cir. 1983); Bryan E. Meek, Mortgage Foreclosure
Proceedings: Where We Have Been and Where We Need to Go, 48
Akron L. Rev. 129 (2015); Stefan D. Cassella, The Civil Asset
Forfeiture Reform Act of 2000, 27 J. Legis. 97 (2001); Jaime
Marie Nies, 15A Cyc. of Fed. Proc. § 88:45 (3d ed.).
5
No. 2019AP1365.jjk
itself override the word's otherwise common, ordinary, and
accepted meaning.
¶45 Rather, the legislature instructs that we must apply
an undefined, non-technical word's "common and approved usage,"
except in the limited circumstance where it "would produce a
result inconsistent with the manifest intent of the
legislature." Wis. Stat. § 990.01(1). Thus, only if
"proceeding" as used in related or nearby provisions evinces a
real conflict between that word's common, ordinary, and accepted
meaning and those provisions' "manifest [legislative] intent"
may this court depart from the common, ordinary, and accepted
meaning. But nothing in how "proceeding" is used in neighboring
provisions causes such a conflict.
¶46 To the contrary, the comprehensive common, ordinary,
and accepted meaning of "proceeding" harmonizes that word's
varied use across the two neighboring provisions cited by the
majority/lead opinion. The first, Wis. Stat. § 425.110(1),
discusses "garnishment or like proceedings directed to the
employer for the purpose of paying a judgment arising from a
consumer credit transaction." Garnishment is a type of legal
action, see Wis. Stat. §§ 812.30-812.44, so a "proceeding" like
garnishment is something like a legal action. In other words,
"proceeding" is used as a synonym for a legal action. That
usage fits the common, ordinary, and accepted meaning of
"proceeding" because a legal action——such as a garnishment
proceeding——is a statutorily prescribed process for enforcing a
legal right. See, e.g., id.
6
No. 2019AP1365.jjk
¶47 A slightly different meaning of "proceeding" appears
in Wis. Stat. § 425.203(3)(b). Section 425.203(3)(b) declares
that for certain consumer transactions, a judicial hearing to
confirm a creditor's sale of repossessed collateral "shall be
considered a proceeding for a deficiency judgment." Here,
"proceeding" refers to a specific procedure within a larger
action rather than the action itself. And, consistent with the
common, ordinary, and accepted meaning of "proceeding," this
intra-action procedure is also a statutorily prescribed process
for enforcing a legal right. See Wis. Stat. §§ 425.209-425.210.
The varied meaning of "proceeding" across these two nearby
provisions——a synonym of legal action in the former and a
particular procedure within an action in the latter——verifies
that in this statutory chapter, "proceeding" is used as
comprehensively as its common, ordinary, and accepted meaning.
See Int'l Wire Works v. Hanover Fire Ins. Co., 230 Wis. 72, 74-
75, 283 N.W. 292 (1939) (concluding that different statutes'
particular uses of a word that "do not conflict with [its]
common meaning . . . indicate[s] that the legislature of this
state has adopted th[at] definition").
¶48 Similarly, nothing in other nearby scope provisions
calls for a departure from the common, ordinary, and accepted
meaning of "proceeding." In contrast to the "actions or other
proceedings" phrase at issue here, the nearby "Debt Collection"
chapter's scope extends to "conduct and practices." See Wis.
Stat. § 427.102. "[C]onduct and practices" might very well
encompass a non-judicial repossession. But just because
7
No. 2019AP1365.jjk
"conduct and practices" could include non-judicial
repossessions, does not mean the legislature is forever bound to
use that exact language each and every time it intends for a
statute to cover such repossessions. That logic unduly hampers
the legislature's freedom to use different but overlapping
language to accomplish valid policy distinctions. Distinct
scopes can harmoniously overlap without any conflict. As such,
the legislature's chosen phrasing in a different, apparently
overlapping——but non-conflicting——scope provision has no bearing
on whether "proceeding" in this scope provision should carry its
common, ordinary, and accepted meaning. In sum, I find no
evidence of a conflicting "manifest [legislative] intent" in the
statutory context that Wis. Stat. § 990.01(1) requires to
justify a departure from the common, ordinary, and accepted
meaning of "proceeding."
¶49 Beyond lacking contextual support, the "something like
litigation" limitation produces two results at odds with the
Wisconsin Consumer Act's textually expressed purposes. First,
it sets a trap for an unwary customer subjected to a creditor's
unconscionable conduct. A savvy customer who within 15 days of
the notice makes a written demand that a creditor instead file a
replevin action, see Wis. Stat. § 425.206(1)(d), preserves her
unconscionability defense. But an unwary customer who misses
that tight demand deadline would lose even a meritorious claim
against a creditor's unconscionable conduct——giving an
unconscionable creditor a free pass. Second, an interpretation
narrower than the common, ordinary, and accepted meaning renders
8
No. 2019AP1365.jjk
the unconscionability defense a nullity in situations where, as
alleged here, a creditor's unconscionable conduct first occurs
during or after the actual repossession, well beyond the 15-day
demand deadline. Even a savvy customer, who simply preferred
the efficiency of the non-judicial route, would suddenly be
without recourse for a creditor's post-repossession conduct,
despite the unconscionability provision applying to "any conduct
directed against the customer." See Wis. Stat. § 425.107(1)
(emphasis added). Both results conflict with the legislature's
textually expressed directive that we "liberally construe[] and
appl[y]" the Act "to promote" the "protect[ion of] customers
against unfair, deceptive, false, misleading and unconscionable
practices by merchants." Wis. Stat. § 421.102(1), (2)(b).
¶50 At bottom, "proceeding" should carry its common,
ordinary, and accepted meaning in Wis. Stat. § 425.102. The
legislature and our case law require it to because nothing in
the surrounding context justifies a departure from that
interpretation. And, importantly, applying the common,
ordinary, and accepted meaning here offers the additional
benefit of satisfying the "cardinal rule" that we "favor an
interpretation that will fulfill the [textually expressed]
purpose of the statute over an interpretation that defeats the
manifest objective of the act." See, e.g., State v. Davis, 2001
WI 136, ¶13, 248 Wis. 2d 986, 637 N.W.2d 62.
C
¶51 Applying the common, ordinary, and accepted meaning of
"proceeding," I conclude that "other proceedings" includes a
9
No. 2019AP1365.jjk
non-judicial repossession. A non-judicial repossession is a
legally prescribed process for enforcing a legal right. The
statute prescribes the initiating notice, the 15-day wait
period, and the prohibitions against both "breach[ing] of the
peace" and entering "a dwelling used by the customer as a
residence." Wis. Stat. § 425.206(1)(d)-(2). It matters not
that the legislature made a policy decision to cut out the
expense and time of litigation. Nothing in that policy choice
indicates a simultaneous desire to foreclose a customer in
Duncan's position from even requesting judicial scrutiny of
unconscionable creditor conduct. Quite the opposite. The
legislature directs us to "liberally construe[] and appl[y]" the
entire Act to "protect customers against . . . unconscionable
practices by merchants." See Wis. Stat. § 421.102(1), (2)(b).
Put simply, the statutorily prescribed non-judicial repossession
process to enforce a creditor's right to collateral plainly
constitutes an "other proceeding[] brought by a creditor to
enforce rights arising from [a] consumer credit transaction[]"
under Wis. Stat. § 425.102.
¶52 Before concluding that Duncan can bring her
unconscionability claim here, I address one last wrinkle. At
common law, unconscionability claims arose defensively. That is
precisely the posture Duncan is in here, albeit not in the
traditional sense. Duncan raises unconscionability as a defense
to Defendants enforcing their right to repossess her car. Had
that repossession commenced via a replevin action, Defendants
would have filed a complaint and Duncan would raise
10
No. 2019AP1365.jjk
unconscionability in her answer or some post-judgment filing if
the unconscionable conduct occurred during or after the
repossession. But a non-judicial repossession dispenses with
these traditional pleadings. Therefore, Duncan can raise
unconscionability only in her own complaint. That is of no
moment because when it comes to pleadings, this court considers
not their form or title but their substance. See, e.g., Wis.
Pub. Serv. Corp. v. Arby Const., Inc., 2012 WI 87, ¶37, 342
Wis. 2d 544, 818 N.W.2d 863 (observing that this court looks
"beyond 'hypertechnical'" labels to the pleading's actual
"substance"). Accordingly, Duncan may raise unconscionability
even under a pleading technically labeled "complaint" because
its substance remains a defense to a creditor's non-judicial
repossession.
II
¶53 I conclude that Duncan could raise an
unconscionability defense to Defendants' non-judicial
repossession. Here, however, her allegations do not as a matter
11
No. 2019AP1365.jjk
of law rise to the level of unconscionable.3 Therefore, I concur
in the court's ultimate mandate and join all but ¶29 and ¶¶31–34
of the majority/lead opinion.
3 The court decides unconscionability claims "as a matter of
law." Wis. Stat. § 425.107(1). Duncan alleges that in addition
to unlawfully entering her "dwelling," Defendants engaged in
unconscionable behavior by obfuscating and misleading her as to
the cost to redeem her car; charging her nearly one-sixth of the
car's original value to redeem it; providing her limited time to
pay the redemption fee; vaguely referencing the possibility of
additional fees; denying Duncan an opportunity to inspect the
car's post-repossession condition before redeeming it; and
communicating with Duncan in a manner that was "rude and
aggressive," so much so that Duncan eventually contacted the
police. Accepting these statement as true and upon considering
the factors listed in § 425.107(3), I conclude that the
Defendants' conduct, while very troubling, did not rise to the
level of unconscionable as a matter of law. Therefore, I agree
that on remand the circuit court need not address Duncan's
unconscionability claim.
12
No. 2019AP1365.pdr
¶54 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The
court of appeals defined "dwelling," as employed in Wis. Stat.
§ 425.206(2)(b), by choosing an administrative rule definition
that by the definition's explicit terms applies only to Wis.
Stat. § 422.419(1)(a). In so doing, the court of appeals
avoided a plain-meaning analysis of § 425.206(2)(b) and the
rules of statutory interpretation that we have repeated and
repeated in countless cases since 2004.
¶55 The majority opinion follows the errant lead of the
court of appeals.1 Instead of interpreting "dwelling" within the
structure of the statute in which it appears, e.g., "used by the
customer as a residence," and instead of relying on Danelle
Duncan's own statements that she never lived or resided in the
apartment building's garage, the majority opinion ignores a
plain-meaning analysis of Wis. Stat. § 425.206(2)(b). Rather,
it patches together a hodgepodge of theories in order to affirm
the court of appeals. Because I conclude that the plain meaning
of § 425.206(2)(b) does not apply to the apartment building's
garage, which Duncan shared with many others and has said in two
court proceedings that she has never lived or resided in, I
would reverse the court of appeals and affirm the summary
judgment granted by the circuit court. Therefore, I
respectfully dissent from the majority opinion.
I. BACKGROUND
¶56 Duncan purchased a vehicle that she financed with an
installment sales contract with the dealership. The dealership
1 Majority op., ¶¶14-16.
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assigned the contract to Wells Fargo, and Wells Fargo then
became the lien holder for Duncan's vehicle.
¶57 Duncan defaulted on her loan, and on February 26,
2015, Wells Fargo gave her notice of the right to cure the
default by paying $887.15. Duncan did not exercise her right to
cure the default. On July 30, 2015, Wells Fargo gave Duncan a
second notice of right to cure, this time by paying $1,907.76.
Again, Duncan did not cure the default. Wells Fargo sent her a
third notice of right to cure by paying $1,372.70. Once again,
Duncan did not cure the default.
¶58 Therefore, pursuant to Wis. Stat. § 425.205(1g)(a),
Wells Fargo gave notice to Duncan that it intended to repossess
her vehicle. The notice told Duncan that she had the right to
demand that Wells Fargo proceed through a court action for
replevin, and that if she did so, Wells Fargo would not proceed
with repossession until after a court judgment was issued.
Duncan made no response to the statutory notice of intent to
repossess that Wells Fargo had provided.
¶59 Wells Fargo then retained Greg Strandlie's company,
Asset Recovery Specialists ("ARS"), to proceed with non-judicial
repossession of the vehicle. Duncan lived in a large, multi-
story apartment building, where she rented an apartment and also
separately rented a space in the apartment building's garage
that was located under the building.
¶60 On January 27, 2016, ARS went to the apartment
building where Duncan lived to locate the vehicle. ARS found
Duncan's vehicle in the large multi-vehicle garage under the
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apartment building. There was no sign at the entrance of the
garage indicating that access was restricted, and the vehicle
entry door was open when ARS arrived.2 A maintenance man was
present during the process of repossessing the vehicle, and he
never spoke with ARS personnel or raised any objection.
Accordingly, ARS towed Duncan's vehicle out of the apartment
building's garage. The garage door remained open when ARS left.
¶61 On February 3, 2016, Duncan contacted the City of
Madison's West Police District, saying that she wanted to have
criminal charges filed against the repossession company that
took her car. She "felt her underground apartment parking
garage was part of her dwelling." Upon investigation, the
officer visually verified that there were no signs or postings
indicating "no trespassing" at the apartment building's garage
and that a maintenance man saw the repossession from the open
garage on January 27, 2016.
¶62 After checking with the city attorney's office in
Madison, where the officer was told that no Madison Ordinance
applied to ARS's entry into the apartment building's garage, the
criminal investigation that Duncan requested was closed.
¶63 Duncan then brought suit in the federal court for the
Western District of Wisconsin against ARS, Greg Strandlie and
There is a photo of a sign at the front of the building
2
that said "Resident Parking Only Unauthorized Violators Will Be
Towed at Vehicle Owner or Operator's Expense." The record does
not disclose the purpose of that sign, but it is likely that it
applied to the out-of-doors parking that tenants had available
too. The photo of the car door at the rear of the building, has
no sign of any type.
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Wells Fargo. As part of its proceedings, the district court
found there "are no living quarters, places to sleep, cook, eat,
watch television, use a restroom or bathe or shower in the
garage area, [and that] Duncan admits that she has never lived
or resided in the garage."3 The court made various other
findings relative to her federal claim and then granted the
defendants' motion for summary judgment in part.4 It dismissed
her federal claim and any portion of her state claims against
Wells Fargo that was based on alleged unlawful retention of
Duncan's personal property.5
¶64 Duncan then filed suit in Dane County Circuit Court.6
The circuit court found that Duncan did not dispute the facts as
found by Judge Conley in district court, but that the "real"
issue was a question of law.7 The circuit court focused its
efforts on whether ARS complied with the Wis. Stat.
§ 425.206(2)(b) directive that in taking possession of
collateral a merchant may not "[e]nter a dwelling used by the
customer as a residence except at the voluntary request of a
customer." After noting that ch. 425 does not define
"dwelling," the court recognized that "dwelling" has various
3Duncan v. Asset Recovery Specialists, Inc., No. 16-cv-530,
2017 WL 2870520, at *3 (W.D. July 5, 2017), aff'd, 907 F.3d 1016(7th Cir. 2018).
4 Id., at *7.
5 Id.
6 The Honorable Stephen E. Ehlke presided.
7Duncan v. Asset Recovery Specialists, Inc., No. 17CV1704,
at 3 (op. issued June 19, 2019).
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statutory definitions.8 For example, the circuit court noted
that Wis. Stat. § 101.71 defines dwelling as:
[A]ny building that contains one or more dwelling
units. "Dwelling unit" means a structure or that part
of a structure which is used or intended to be used as
a home, residence or sleeping place by one person or
by two or more persons maintaining a common household
to the exclusion of all others.[9]
The court also considered part of the criminal code, Wis. Stat.
§ 943.13, "Trespass to Land," that defines "dwelling unit" as "a
structure or that part of a structure which is used or intended
to be used as a home, residence or sleeping place by one person
or by two or more persons maintaining a common household to the
exclusion of all others."10
¶65 The circuit court then found that "it is undisputed
that Ms. Duncan did not have a right to exclude others from her
apartment building's garage. Rather, the garage has over 50
parking spaces for use by the building's tenants with no tenant
having a right to exclude any other tenant or person from the
area. This is in contrast to, for example, single-family homes
where owners do have exclusive control over their garage."11 The
circuit court further found that the "parking garage was remote
and on a different floor than her apartment [and that] the
garage offers no use that is primarily or intimately tied to the
use of her apartment, for example, sleeping, eating or
8 Id. at 8.
9 Id. at 9.
10 Id. at 9-10.
11 Id. at 10-11.
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conducting her private life."12 The circuit court concluded that
the apartment building's garage did not come within the
statutory term, "dwelling," in Wis. Stat. § 425.206(2)(b).
Accordingly, it granted defendants' motion for summary judgment,
and dismissed the amended complaint.13
¶66 Duncan appealed, and the court of appeals reversed.
The court of appeals acknowledged that "dwelling" is not defined
in the statutory text of the Wisconsin Consumer Act of which
Wis. Stat. § 425.206(2)(b) is a part.14 The court of appeals
also concluded that Wis. Stat. § 422.419(1)(a), which precludes
certain covenants in consumer agreements, was not at issue here.
However, the court of appeals nevertheless concluded that the
garage in Duncan's apartment building was part of a dwelling she
used as a residence based on Wis. Admin. Code § DFI-WCA 1.392
(July 2007). It provides, "For the purposes of
s. 422.419(1)(a), Stats., the term 'dwelling' shall include, any
garage, shed, barn or other building on the premises whether
attached or unattached."
II. DISCUSSION
A. Standard of Review
¶67 This matter involves a review of summary judgment. We
independently review a grant or denial of summary judgment as a
question of law. Applegate-Bader Farm, LLC v. DOR, 2021 WI 26,
12 Id. at 14.
13 Id. at 14-15.
Duncan v. Asset Recovery Specialists, Inc., 2020 WI App
1454, ¶22, 393 Wis. 2d 814, 948 N.W.2d 419.
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¶15, 396 Wis. 2d 69, 955 N.W.2d 793 (citing Sands v. Menard,
2017 WI 110, ¶28, 379 Wis. 2d 1, 904 N.W.2d 789).
¶68 In order to evaluate the summary judgment decision
made by the circuit court, we independently interpret and apply
Wis. Stat. § 425.206(2)(b). In so doing, we determine whether
Duncan's vehicle was lawfully repossessed from the apartment
building's garage. As we evaluate the court of appeals'
decision, we also interpret and assess the applicability of Wis.
Stat. § 422.419 and Wis. Admin. Code § DFI-WCA 1.392 relative to
whether ARS's repossession violated § 425.206(2)(b).
¶69 Statutory interpretation and application present
questions of law for our independent review. Wisconsin
Legislature v. Palm, 2020 WI 42, ¶14, 391 Wis. 2d 497, 942
N.W.2d 900 (citing Milwaukee Police Ass'n v. City of Milwaukee,
2018 WI 86, ¶17, 383 Wis. 2d 247, 914 N.W.2d 597). Furthermore,
statutory interpretations grounded in undisputed material facts
provide questions of law for our independent review. Westmas v.
Creekside Tree Serv., Inc., 2018 WI 12, ¶17, 379 Wis. 2d 471,
907 N.W.2d 68. We are assisted in our independent
interpretation by decisions of the district court, the circuit
court and the court of appeals. Marder v. Bd. of Regents of
Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706
N.W.2d 110.
¶70 In the matter before us, we also interpret provisions
of Wisconsin's Administrative Code independently, as questions
of law. Orion Flight Servs., Inc. v. Basler Flight Serv., 2006
WI 51, ¶18, 290 Wis. 2d 421, 714 N.W.2d 130.
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B. Statutory Interpretation
1. General principles
¶71 Statutory interpretation always begins with reading
the words the legislature chose to enact in order to apply them
and give the statute its full effect. Townsend v. ChartSwap,
LLC, 2021 WI 86, ¶12, __ Wis. 2d __, __ N.W.2d __, 2021
WL 5538667 (citing State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110).
Statutory words are given their "'common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning.'" Id. (quoting Kalal, 271 Wis. 2d 633, ¶45); Wis.
Stat. § 990.01(1).15
¶72 Context also is important to determining statutory
meaning, as is "'the structure of the statute in which the
operative language appears.'" Id., ¶13 (quoting Kalal, 271
Wis. 2d 633, ¶46). If the statute's meaning is plain we usually
stop our inquiry. However, as we determine a statute's meaning,
we assess whether the statute is ambiguous. A statute is
ambiguous if it is capable of being understood by reasonably
well-informed persons in two or more senses. Voces De La
Frontera, Inc. v. Clarke, 2017 WI 16, ¶15, 373 Wis. 2d 348, 891
N.W.2d 803. Generally, we do not consult secondary sources such
Wisconsin
15 Stat. § 990.01 provides in relevant
part: "(1) General rule. All words and phrases shall be
construed according to common and approved usage; but technical
words and phrases and others that have a peculiar meaning in the
law shall be construed according to such meaning."
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as legislative history unless the language of the statute is
ambiguous. Id.
2. Wisconsin Stat. 425.206(2)(b)
¶73 The initial focus of my inquiry is Wis. Stat.
§ 425.206(2)(b) because the terms, "dwelling used by the
customer as a residence," are central to this dispute.
"Dwelling" is not defined in ch. 425. It also is not defined in
the general definitional section, Wis. Stat. § 421.301, which
would then apply to § 425.206.
¶74 However "dwelling" is defined in many other places in
Wisconsin statutes, some of the definitions contain
similarities. See, e.g., Wis. Stat. § 943.14(1),16 which defines
"dwelling" as "a structure or part of a structure that is used
or intended to be used as a home or residence by one or more
persons to the exclusion of all others." (Emphasis added.)
Wisconsin Stat. § 943.13(1e)(ar)17 similarly states that
"'Dwelling unit' means a structure or that part of a structure
which is used or intended to be used as a home, residence or
sleeping place by one person or by 2 or more persons maintaining
a common household, to the exclusion of all others." (Emphasis
added.)
¶75 Wisconsin Stat. § 75.195(1)(a)18 defines "[d]welling"
as "any building that contains one or 2 dwelling units and any
16 Criminal trespass to dwellings, Wis. Stat. § 943.14.
17 Trespass to land, Wis. Stat. § 943.13.
18 Extended time for beginning tax foreclosure, Wis. Stat.
§ 75.195.
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land included with that building in the same entry on the tax
roll." With subsec. (1)(b) further providing detail that
"'[d]welling unit' means a structure or that part of a structure
used as a home, residence or sleeping place by one person or by
2 or more persons maintaining a common household, to the
exclusion of all others." (Emphasis added.) Wisconsin Stat.
§ 101.61(1)19 similarly defines dwelling: "'Dwelling' means any
building that contains one or 2 dwelling units. 'Dwelling unit'
means a structure or that part of a structure which is used or
intended to be used as a home, residence or sleeping place by
one person or by 2 or more persons maintaining a common
household, to the exclusion of all others." (Emphasis added.)
Wisconsin Stat. § 101.71(2)20 defines dwelling
similarly: "'Dwelling' means any building that contains one or
more dwelling units. 'Dwelling unit' means a structure or that
part of a structure which is used or intended to be used as a
home, residence or sleeping place by one person or by 2 or more
persons maintaining a common household, to the exclusion of all
others." (Emphasis added.)
¶76 Wisconsin Stat. § 425.206 appears in Subchapter II of
ch. 425, Enforcement of Security Interests in Collateral.
Section 425.206 applies to the non-judicial enforcement of lien
rights. I begin by reviewing the term, "dwelling," in the
structure of § 425.206 in which "dwelling" appears. It provides
in relevant part:
19 Definitions for ch. 101, Wis. Stat. § 101.61.
20 Definitions for ch. 101 subchapter, Wis. Stat. § 101.71.
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(2) In taking possession of collateral or leased
goods, no merchant may do any of the following:
(a) Commit a breach of the peace.
(b) Enter a dwelling used by the customer as a
residence except at the voluntary request of a
customer.
§ 425.206(2). Although, "dwelling" is not defined in regard to
portions of statutes that set out provisions that relate to
Wisconsin consumer transactions, I note that findings of the
earlier trial courts who considered this dispute provide the
factual context in which we interpret "dwelling," as that term
appears in § 425.206(2)(b).
¶77 For example, the circuit court found that the
apartment building's garage contained spaces for more than 50
cars, with no tenant having a right to exclude others, which the
circuit court also found was in contrast to single-family homes
where there is a right to exclusive control over the garage.
Duncan agreed that she did not have the right to exclude others
from the apartment building's garage. Therefore, she could not
bring suit for criminal trespass to dwellings, pursuant to Wis.
Stat. § 943.14 or for trespass to land pursuant to Wis. Stat.
§ 943.13, which she tried to do before filing in federal
district court.
¶78 It is undisputed that Duncan does not sleep in the
garage. The district court found that there "are no living
quarters, places to sleep, cook, eat, watch television, use a
restroom or bathe or shower in the garage area, [and that]
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Duncan admits that she has never lived or resided in the
garage."21
¶79 In addition, the "dwelling" identified in Wis. Stat.
§ 425.206(2)(b) is at least partially defined by the structure
of § 425.206(2)(b), which qualifies the "dwelling" as one "used
by the customer as a residence." That is, "dwelling" is limited
by the use to which the customer puts the dwelling. Stated
otherwise, the customer must use the "dwelling" referenced in
§ 425.206(2)(b) as a residence in order to come within the plain
meaning of § 425.206(2)(b).
¶80 Customer is an often utilized term. See, e.g., Wis.
Stat. § 421.301(9) (addressing a "[c]onsumer credit sale"
wherein a "customer" enters into such a transaction). Duncan
purchased the vehicle in a consumer credit sale; therefore, she
is a "customer."
¶81 "Residence" is undefined, but it has a commonly
understood meaning as the place where one actually lives.22
Here, "dwelling" must be the place used by the customer, Duncan,
as a residence. Therefore, in order to fit within the structure
of Wis. Stat. § 425.206(2)(b), the apartment building's garage
must be the place where Duncan actually lives——where she
resides. She has admitted that she never lived or resided in
the apartment building's garage, and the district court and the
21 Duncan, 2017 WL 2870520, at *3.
Residence: "the place where one actually lives as
22
distinguished from his domicile or a place of temporary
sojourn." Webster's New Collegiate Dictionary 984 (1974).
12
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circuit court both so found. Instead, she rented a parking
space in a garage shared by other residents and maintained by a
third-party apartment owner. Therefore, based on the plain
meaning of the statute that the legislature enacted, and
undisputed material facts, I conclude that the apartment
building's garage where Duncan parked her car is not a
"dwelling" within the meaning of § 425.206(2)(b).
3. Wisconsin Stat. § 422.419(1)(a)
¶82 The majority opinion and the court of appeals brought
Wis. Stat. § 422.419 into this controversy. It provides:
(1) No contract evidencing a consumer credit
transaction may contain any provision by which:
(a) The merchant or other person acting on the
merchant's behalf is given authority to enter the
customer's dwelling or to commit any breach of the
peace in the course of taking possession of collateral
securing the transaction;
(b) The customer waives any right of action
against the merchant, or other person acting on the
merchant's behalf, for any breach of the peace or
other illegal act committed in the course of taking
possession of such collateral; or
(c) The customer executes a power of attorney or
similar instrument appointing the merchant, or other
person acting on the merchant's behalf, as the
customer's agent in the taking of possession of such
collateral.
§ 442.419(1).
¶83 It is undisputed that Wis. Stat. § 422.419 has
absolutely no relevance to the contract by which Duncan
purchased the vehicle. All parties agree that the consumer
credit sales contract Duncan entered into was lawful in all
respects.
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¶84 Then why did the court of appeals and the majority
opinion bring Wis. Stat. § 422.419(1)(a) into their decision
making? It appears that they did so for two reasons: First, to
avoid a plain-meaning statutory interpretation analysis, which
we have directed be employed in countless decisions since Kalal
was issued in 2004; and second, to insert Wis. Admin. Code
§ DFI-WCA 1.392 into their discussions of "dwelling" and reach a
result that would not occur if they had undertaken a plain
meaning analysis of Wis. Stat. § 425.206(2)(b).
¶85 As I have explained above, a plain meaning analysis of
Wis. Stat. § 425.206(2)(b) unambiguously demonstrates that
"dwelling" is restricted by the use to which Duncan put the
apartment building's garage. She never resided or lived there.
Furthermore, a common meaning of dwelling is a place where one
sleeps and from which one can exclude all others. The
undisputed testimony shows that the apartment building's garage
does not meet the restrictive statutory structure of
§ 425.206(2)(b) nor does it meet common definitions of
"dwelling."
¶86 Let's look at Wis. Admin. Code § DFI-WCA 1.392. It
provides, "For the purposes of s. 422.419(1)(a), Stats., the
term 'dwelling' shall include, any garage, shed, barn or other
building on the premises whether attached or unattached."
(Emphasis added.) Note that, in addition to expressly limiting
the rule's application to Wis. Stat. § 422.419(1)(a), "dwelling"
within Wis. Admin. Code § DFI-WCA 1.392 is not restricted by the
manner in which a customer uses it, as "dwelling" is by the
14
No. 2019AP1365.pdr
structure of Wis. Stat. § 425.206(2)(b). Stated otherwise,
Duncan would not have to live or reside in the shed or barn to
cause it to be a "dwelling" within Wis. Admin. Code § DFI-WCA
1.392.
¶87 The court of appeals' decision23 avoids a plain-meaning
interpretation of Wis. Stat. § 425.206(2)(b) to seek a different
result than a plain-meaning interpretation will permit. The
majority opinion's use of Wis. Admin. Code § DFI-WCA 1.392 is
less direct than that of the court of appeals, but nevertheless
it employs Wis. Admin. Code § DFI-WCA 1.392 to support its
analysis.24 Furthermore, the majority opinion's hodgepodge of
definitions totally ignores the structure of § 425.206(2)(b)
which limits "dwelling" according to how the customer uses that
space. Again, it appears the majority opinion did so to avoid
the plain meaning of § 425.206(2)(b) and to obtain a result that
the plain meaning of the words the legislature enacted will not
permit.
¶88 Our directives on statutory interpretation assist
judges in keeping their personal policy preferences out of their
decisions. They provide certainty in the law based on the words
the legislature chose to enact. When courts avoid our
directives, they take away those protections and replace them
with personal policy preferences that then drive decisions that
follow.
23 Duncan, 393 Wis. 2d 814, ¶¶27, 28.
24 Majority op., ¶¶14-16.
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III. CONCLUSION
¶89 The court of appeals defined "dwelling," as employed
in Wis. Stat. § 425.206(2)(b), by choosing an administrative
rule definition that by the definition's explicit terms applies
only to Wis. Stat. § 422.419(1)(a). In so doing, the court of
appeals avoided a plain-meaning analysis of § 425.206(2)(b) and
the rules of statutory interpretation that we have repeated and
repeated in countless cases since 2004.
¶90 The majority opinion follows the errant lead of the
court of appeals.25 Instead of interpreting "dwelling" within
the structure of the statute in which it appears, e.g., "used by
the customer as a residence," and instead of relying on Duncan's
own statements that she never lived or resided in the apartment
building's garage, the majority opinion ignores a plain-meaning
analysis of Wis. Stat. § 425.206(2)(b). Rather, it patches
together a hodgepodge of theories in order to affirm the court
of appeals. Because I conclude that the plain meaning of
§ 425.206(2)(b) does not apply to the apartment building's
garage, which Duncan shared with many others and has said in two
court proceedings that she has never lived or resided in, I
would reverse the court of appeals and affirm the summary
judgment granted by the circuit court. Therefore, I
respectfully dissent from the majority opinion.
¶91 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
dissent.
25 Majority op., ¶¶14-16.
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1