2017 WI 37

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP2581

COMPLETE TITLE: Taft Parsons, Jr. and Carol Parsons,

 Plaintiffs-Appellants,

v.

Associated Banc-Corp,

 Defendant-Respondent-Petitioner,

XYZ Insurance Company,

 Defendant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

2016 WI App 44

Reported at: 370 Wis. 2d 112, 881 N.W.2d 793

OPINION FILED: April 13, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 2, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: Jeffrey A. Conen

JUSTICES:

CONCURRED:

DISSENTED: A.W. BRADLEY, J. joined by ABRAHAMSON, J. 

dissents (opinion filed).

NOT PARTICIPATING: KELLY, J. did not participate. 

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs

by Robert G. Pyzyk, James J. Carrig and Niebler, Pyzyk, Roth and 

Carrig, LLP, Menomonee Falls. Oral argument by James J. Carrig.

For the plaintiffs-appellants, there was a brief by Alex 

Flynn, Marjorie R. Maguire and Alex Flynn and Associates, S.C., 

Milwaukee. Oral argument by Alex Flynn.
2

An amicus curiae brief was filed by Jonh E. Knight, Kirsten 

E. Spira and Boardman & Clark LLP, Madison, for Wisconsin 

Bankers Association.

An amicus curiae brief was filed by Michael J. Cerjak, 

PKSD, Milwaukee, Mark L. Thomsen and Cannon & Dunphy, S.C.,

Brookfield for Wisconsin Association for Justice.
2017 WI 37

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP2581

(L.C. No. 2011CV8389)

STATE OF WISCONSIN : IN SUPREME COURT

Taft Parsons, Jr. and Carol Parsons,

 Plaintiffs-Appellants,

 v.

Associated Banc-Corp,

 Defendant-Respondent-Petitioner,

XYZ Insurance Company,

 Defendant.

FILED

APR 13, 2017

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed and 

cause remanded. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a 

published decision of the court of appeals, Parsons v. 

Associated Banc-Corp, 2016 WI App 44, 370 Wis. 2d 112, 881 

N.W.2d 793, which reversed the Milwaukee County circuit court's1

order granting Associated Banc-Corp's ("Associated") motion to 

strike Taft and Carol Parsons' ("the Parsons") demand for a 

jury.

 

1 The Honorable Jeffrey A. Conen presided.
No. 2014AP2581 

2

¶2 The Parsons are approaching a trial in their lawsuit 

against Associated for alleged racketeering activity and 

negligent hiring, training, and supervision. We are asked to 

decide what form that trial will take. The Parsons seek a jury 

trial, but Associated asserts that the Parsons contractually 

waived their right to a jury several years ago, before this 

litigation arose. 

¶3 There are two basic issues on this appeal. First, we 

must examine whether the pre-litigation jury waiver provision in 

the contract between the Parsons and Associated is enforceable, 

either with or without proof extrinsic to the terms of the 

contract that the Parsons knowingly and voluntarily agreed to 

this waiver. Second, if we conclude that the provision is 

enforceable, we must examine whether Associated's motion to 

strike the Parsons' jury demand was untimely. 

¶4 We conclude that the pre-litigation jury waiver 

provision in the contract between the Parsons and Associated is 

enforceable and that Associated does not need to offer 

additional proof that the Parsons knowingly and voluntarily 

agreed to this waiver. We further conclude that Associated's 

motion to strike the Parsons' jury demand was not untimely. 

Consequently, we reverse the decision of the court of appeals 

and remand the case to the circuit court for further proceedings 

consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 In part because of the unusual posture of this case, 

the facts pertaining to this lawsuit are largely unimportant to 
No. 2014AP2581 

3

the disposition of this appeal. On May 26, 2011, the Parsons 

sued Associated in Milwaukee County circuit court asserting 

claims pertaining to, in the words of the Parsons, "a failed 

construction project in inner-city Milwaukee." 

¶6 More specifically, the Parsons' complaint contains the 

following relevant allegations. In or before 2002, Taft Parsons 

("Taft") "conceived of the idea to turn the run-down houses on 

his block into modern affordable rowhouses." The Parsons 

obtained financing for this project through State Financial 

Bank, Associated's predecessor in interest.2 According to the 

Parsons, however, Associated "conspired with, aided, and/or 

allowed the general contractor and project manager [of the 

project] to improperly take hundreds of thousands of dollars of 

construction funds from the [Parsons] causing the [Parsons] 

substantial injury." The complaint asserted ten causes of 

action and, importantly, demanded a 12-person jury.

¶7 On December 12, 2012, the Parsons filed an amended 

complaint asserting eight causes of action. Before this court, 

the Parsons contend that they have now "limited their case" to 

the following two claims presented in their amended complaint: 

(1) racketeering activity in violation of Wis. Stat. § 946.83(1) 

 

2 For simplicity, we will refer to both State Financial Bank 

and Associated as "Associated" for the remainder of this 

opinion. We express no position on the merits of the underlying 

dispute.
No. 2014AP2581 

4

(2013-14);3 and (2) negligent hiring, training, and supervision. 

In their amended complaint the Parsons again demanded a 12-

person jury. On January 9, 2013, the Parsons submitted the jury 

fee to the circuit court. 

¶8 On May 14, 2014, Associated filed a motion to strike 

the Parsons' jury demand. Associated provided the circuit court 

with a Promissory Note for several hundred thousand dollars 

dated May 26, 2004 and listing Taft as "Borrower" and Associated 

as "Lender." The note contained the following relevant 

language:

WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER (BY 

THEIR ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, 

KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY 

RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY 

DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR 

OTHERWISE) BETWEEN OR AMONG THE BORROWER AND THE 

LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS 

DOCUMENT, ANY OTHER RELATED DOCUMENT, OR ANY 

RELATIONSHIP BETWEEN THE BORROWER AND THE LENDER. THIS 

PROVISION IS A MATERIAL INDUCEMENT TO THE LENDER TO 

PROVIDE THE FINANCING DESCRIBED HEREIN OR IN OTHER 

LOAN DOCUMENTS.

. . .

PRIOR TO SIGNING THIS NOTE, BORROWER READ AND 

UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE . . . . 

BORROWER AGREES TO THE TERMS OF THE NOTE.

(Boldface omitted from first four words and last paragraph.) A 

few lines below this text was Taft's signature. Accordingly, 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2014AP2581 

5

Associated asked the court to strike the Parsons' jury demand 

"because it was contractually waived."

¶9 The Parsons offered a number of arguments in response 

to the motion to strike; the following ones are relevant to this 

appeal. First, while conceding that "the statutes do not 

provide a deadline for an opposing party to object to a jury 

demand," the Parsons argued that Associated's motion to strike 

was untimely and that Associated had waived its right to object 

to the jury demand. Second, the Parsons claimed that because of 

the lack of Wisconsin case law regarding contractual jury 

waivers, the circuit court was not required to enforce the jury 

waiver provided by Associated. Third, the Parsons contended 

that Carol Parsons ("Carol") had not signed the Promissory Note 

and thus had not waived her right to a jury. Finally, the 

Parsons asserted that Taft "had no freedom not to sign the 

Promissory Note for the construction loan." 

¶10 With regard to this final argument, the Parsons 

attached an affidavit in which Taft swore to the following, 

among other things: Taft "never noticed any jury waiver clause 

in the Promissory Note . . . because [he] was not given time to 

review the loan documents prior to the closing"; Taft "had no 

counsel" at the time he signed the Promissory Note; Taft was 

told "that if [he] did not sign the closing documents 

immediately, [Associated] would withdraw its support for the 

construction project"; if Taft "had not gotten the construction 

loan," tens of thousands of dollars he had already obtained 

under another loan "for pre-construction costs would have been 
No. 2014AP2581 

6

down the drain, and [he] would still have owed that money"; Taft 

"did not knowingly and freely waive any right to a jury trial"; 

and Taft signed the Promissory Note "under pressure."

¶11 On October 24, 2014, the circuit court granted 

Associated's motion to strike the Parsons' jury demand. Citing 

as "particularly relevant considerations" "the parties' 

sophistication, whether the contract was procured fraudulently, 

and whether the jury waiver clause is conspicuous," the circuit 

court concluded that the waiver was enforceable. The circuit 

court explained in part:

[Taft] is an intelligent business man who undoubtedly 

has experience reviewing paperwork and entering into 

contracts; he surely knows the importance of 

thoroughly reviewing documents. . . . [T]he promissory 

note also contained multiple bold, capital letter 

acknowledgements above the signature line. The jury 

waiver clause is set off from the rest of the document 

by bold, capital letters, stating "WAIVER OF THE JURY 

TRIAL." [sic] It is unlikely that [Taft] overlooked 

the jury waiver clause as the promissory note itself 

is just a two-page document. Finally, Wisconsin 

courts presume that a party to a contract had 

knowledge of it and consented to its terms.

¶12 The circuit court rejected the Parsons' timeliness 

argument in part because the Parsons had not provided any law 

establishing that Associated's putative delay in objecting to 

the jury demand waived Associated's right to object to the 

demand. With regard to the Parsons' claim that Carol was not 

bound by the jury waiver, the court concluded:

The argument made in the Parsons' brief . . . was 

superficial. Regardless, the jury waiver applies to 

"any dispute . . . between or among the Borrower and 

the Lender arising out of" the promissory note[,] any 
No. 2014AP2581 

7

other related document, or "any relationship between 

the Borrower and the Lender." As [Carol]'s claims are 

ones arising out of the relationship between the 

borrower and the Bank, the waiver clause also applies 

to her.

The circuit court ordered that the Parsons' cause would be heard 

by court trial.

¶13 On November 25, 2014, the Parsons petitioned the court 

of appeals for leave to appeal a non-final order. On 

December 12, 2014, the court of appeals granted the petition. 

On May 20, 2016, in a published opinion, the court of appeals 

reversed the decision of the circuit court and remanded the case 

for a jury trial. Parsons, 370 Wis. 2d 112, ¶1.

¶14 The court of appeals began with the broad proposition 

that a person may waive his or her right to a jury trial under 

Article I, section 5 of the Wisconsin Constitution. Id., ¶16. 

However, the court of appeals concluded that Associated bore the 

burden of demonstrating that the Parsons "understood the scope 

of and the specific nature of the rights given up by the 

waiver." Id., ¶31. Relying on Taft's affidavit, the court 

determined that Associated had not met that burden and that the 

circuit court erred in concluding otherwise. See id., ¶¶29-31.

¶15 The court of appeals then explained that because "the 

additional question of whether the waiver clause is invalid 

because it is unconscionable may well arise during trial, as it 

did at oral argument, [it would] consider whether the clause, on 

the record before [it], survives an unconscionability analysis." 

Id., ¶32. The court of appeals concluded the waiver was 

procedurally and substantively unconscionable. Id., ¶39.
No. 2014AP2581 

8

¶16 The court of appeals also considered whether the 

circuit court erred in allowing Associated to object to the 

Parsons' jury demand and concluded it had erred for three 

reasons. First, Associated had forfeited its right to object 

because its objection was not timely. Id., ¶22. Second, 

Associated had waived its right to object under Wis. Stat. 

§ 805.01(3). Id. Third, Associated was "equitably estopped 

from making its much belated claim for a court trial." Id., 

¶23. The court of appeals remanded the case for a jury trial. 

Id., ¶1.

¶17 On June 9, 2016, Associated filed a petition for 

review in this court. On September 13, 2016, we granted the 

petition.

II. STANDARD OF REVIEW

¶18 In this case we interpret Article I, section 5 of the 

Wisconsin Constitution. We review state constitutional 

questions de novo. State v. Lagrone, 2016 WI 26, ¶18, 368 

Wis. 2d 1, 878 N.W.2d 636 (quoting State v. Schaefer, 2008 WI 

25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457). 

¶19 We also interpret and apply Wis. Stat. § 805.01 ("Jury 

trial of right."). "'Statutory interpretation and application 

present questions of law that we review de novo while benefiting 

from the analyses of the court of appeals and circuit court.'" 

Journal Times v. Racine Bd. Police & Fire Comm'rs, 2015 WI 56, 

¶42, 362 Wis. 2d 577, 866 N.W.2d 563 (quoting 118th St. Kenosha, 

LLC v. DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486).
No. 2014AP2581 

9

III. ANALYSIS

¶20 We first address whether the pre-litigation jury 

waiver provision in the contract between the Parsons and 

Associated is enforceable. We then address whether 

Associated's motion to strike the Parsons' jury demand is 

untimely. 

A. Whether the Pre-litigation Jury Waiver Provision in the 

Contract between the Parsons and Associated is Enforceable

¶21 That a person may waive his or her right to a civil 

jury trial in Wisconsin is already settled law. Under Article 

I, section 5 of the Wisconsin Constitution:

The right of trial by jury shall remain inviolate, and 

shall extend to all cases at law without regard to the 

amount in controversy; but a jury trial may be waived 

by the parties in all cases in the manner prescribed 

by law. Provided, however, that the legislature may, 

from time to time, by statute provide that a valid 

verdict, in civil cases, may be based on the votes of 

a specified number of the jury, not less than 

five−sixths thereof.

Wis. Const. art. I, § 5 (emphasis added). 

¶22 The Wisconsin Statutes set forth a number of ways in 

which a civil jury trial may be waived. For example, under Wis. 

Stat. § 805.01(2), "Any party entitled to a trial by jury or by 

the court may demand a trial in the mode to which entitled at or 

before the scheduling conference or pretrial conference, 

whichever is held first. The demand may be made either in 

writing or orally on the record." § 805.01(2). However, 

[t]he failure of a party to demand in accordance with 

sub. (2) a trial in the mode to which entitled 

constitutes a waiver of trial in such mode. The right 
No. 2014AP2581 

10

to trial by jury is also waived if the parties or 

their attorneys of record, by written stipulation 

filed with the court or by an oral stipulation made in 

open court and entered in the record, consent to trial 

by the court sitting without a jury.

§ 805.01(3). Further, under Wis. Stat. § 814.61(4), "If the 

jury fee is not paid, no jury may be called in the action, and 

the action may be tried to the court without a jury." 

§ 814.61(4). See generally Rao v. WMA Sec., Inc., 2008 WI 73, 

¶¶19-20, 310 Wis. 2d 623, 752 N.W.2d 220 (discussing the same 

statutes); Phelps v. Physicians Ins. Co. of Wis., 2005 WI 85, 

¶¶28-29, 282 Wis. 2d 69, 698 N.W.2d 643 (same). "Wisconsin 

Stat. §§ 805.01(3) and 814.61 are but two examples of how waiver 

may be effectuated." Phelps, 282 Wis. 2d 69, ¶28. 

¶23 The central question in this case, therefore, is not 

whether a civil jury trial may be waived, but instead whether a 

pre-litigation jury waiver provision in a contract constitutes 

waiver "in the manner prescribed by law." Wis. Const. art. I, 

§ 5. 

¶24 We observe that the parties have not presented us with 

a statute governing contractual jury waivers. However, as we 

will now explain, that is not dispositive of the issue. It is 

true that in another context——interpretation of the "powers, 

duties and compensation" of the attorney general pursuant to 

Article VI, section 3 of the Wisconsin Constitution——this court 

has interpreted the word "law" in the phrase "prescribed by law" 

to mean statutory law. See, e.g., State v. City of Oak Creek, 

2000 WI 9, ¶19, 232 Wis. 2d 612, 605 N.W.2d 526. And 

"[u]ndoubtedly, there is a natural presumption that identical 
No. 2014AP2581 

11

words used in different parts of the same act are intended to 

have the same meaning." Atl. Cleaners & Dyers v. United States, 

286 U.S. 427, 433 (1932). Yet this presumption "is not rigid 

and readily yields whenever there is such variation in the 

connection in which the words are used as reasonably to warrant 

the conclusion that they were employed in different parts of the 

act with different intent." Id. Here, a number of 

considerations lead us to conclude that the phrase "prescribed 

by law" in Article I, section 5 of the Wisconsin Constitution is 

not restricted to statutory law. 

¶25 As a preliminary matter, we note the obvious 

proposition that the phrase "prescribed by law" is susceptible 

to a broader definition than simply "prescribed by statute." 

The word "law" can denote "[t]he aggregate of legislation, 

judicial precedents, and accepted legal principles," not just 

legislation. Law, Black's Law Dictionary 1015 (10th ed. 2014). 

Likewise, to "prescribe" simply means "[t]o dictate, ordain, or 

direct; to establish authoritatively (as a rule or guideline)." 

Prescribe, id. at 1373.4

 

4 The phrase "prescribed by law" appeared in the original 

version of Article I, section 5 of the Wisconsin Constitution 

adopted in 1848. Both "law" and "prescribe" carried similar 

definitions during that time period. One legal dictionary of 

the time defines "law" in part as follows: 

(continued)
No. 2014AP2581 

12

¶26 Next, we must acknowledge a second, related 

interpretative presumption, namely the intuitive presumption 

that "different words have different meanings." Pawlowski v. 

Am. Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777 

N.W.2d 67 ("When the legislature chooses to use two different 

words, we generally consider each separately and presume that 

different words have different meanings."); Antonin Scalia & 

Bryan A. Garner, Reading Law 170 (2012) ("A word or phrase is 

presumed to bear the same meaning throughout a text; a material 

variation in terms suggests a variation in meaning."). While 

Article I, section 5 of the Wisconsin Constitution provides that 

"a jury trial may be waived by the parties in all cases in the 

 

[T]hat body or system of rules which the government of 

a country has established for its internal regulation, 

and for ascertaining and defining the rights and 

duties of the governed, . . . commonly called 

municipal or civil law, and, in popular language, "the 

law of the land." The municipal law of England is 

composed of written and unwritten laws (lex scripta

and lex non scripta): or, in other words, of the 

statutes of the realm, and of the custom of the realm, 

otherwise termed the "common law[";] on both of which 

branches of the law the superior courts exercise their 

judgment, giving construction and effect to the 

former, and by their interpretation declaring what is, 

and what is not the latter.

Henry James Holthouse, A New Law Dictionary 245 (2d ed., Boston, 

Charles C. Little and James Brown, London, Thomas Blenkarn 

1850). Another contemporaneous dictionary defines "prescribe" 

in part as "[t]o set or lay down authoritatively for direction; 

to give as a rule of conduct. To direct." 2 John Boag, A 

Popular and Complete English Dictionary 1016 (Glasgow, William 

Collins 1848).
No. 2014AP2581 

13

manner prescribed by law," that sentence is immediately followed 

by this sentence: "Provided, however, that the legislature may, 

from time to time, by statute provide that a valid verdict, in

civil cases, may be based on the votes of a specified number of 

the jury, not less than five−sixths thereof." Wis. Const. art. 

I, § 5 (emphases added). The fact that the same section in the 

state constitution refers generally to a matter being 

"prescribed by law" and specifically to the legislature 

"provid[ing]" something "by statute" strongly suggests that 

"law" in that section has a broader meaning than simply 

"statutory law." 

¶27 We turn now to a significant factor in our analysis: 

this is not the first time this court has addressed the question 

of whether the manner of jury waiver under Article I, section 5 

of the Wisconsin Constitution must find prior authorization in a 

statute. In interpreting the meaning of "prescribed by law" in 

the attorney general section of our constitution in City of Oak 

Creek, we declared that "this court has consistently stated that 

the phrase 'prescribed by law' in art. VI, § 3 plainly means 

prescribed by statutory law." City of Oak Creek, 232 

Wis. 2d 612, ¶19. But just the opposite is true with regard to 

Article I, section 5: as made clear by our decision in 

Theuerkauf v. Schnellbaecher, 64 Wis. 2d 79, 218 N.W.2d 295 

(1974), a long line of early cases of this court determined, 

without any reference to an authorizing statute, that a jury 

trial had been waived. See Theuerkauf, 64 Wis. 2d at 87 (citing 

Leonard v. Rogan, 20 Wis. 568 (*540), 571 (*543) (1866); Charles 
No. 2014AP2581 

14

Baumbach Co. v. Hobkirk, 104 Wis. 488, 80 N.W. 740 (1899); 

McCormick v. Ketchum, 48 Wis. 643, 4 N.W. 798 (1880); Wooster v. 

Weyh, 194 Wis. 85, 216 N.W. 134 (1927); Gifford v. Thur, 226 

Wis. 630, 276 N.W. 348 (1938)).

¶28 Thus this court announced in Theuerkauf: "[T]he 

conclusion has been reached that [Wis. Stat. §] 270.32"——the 

predecessor to the current Wis. Stat. § 805.015——"does not state 

the exclusive conditions for finding waiver of jury trial." 

Theuerkauf, 64 Wis. 2d at 87. In referring, after stating this 

proposition, to cases where no statute at all was cited in 

discussions of jury waiver, the Theuerkauf court was plainly 

implying not that conditions for finding waiver of a jury trial 

could be found in other statutes, but that some such conditions 

had their source independent of any statute enacted by the 

legislature. This proposition was hinted at later in Rao, where 

we looked to "court-promulgated rule[s] of pleading, practice, 

or procedure" as well as "case law interpreting and applying 

these rules" to determine "the manner by which a party waives 

its Article I, Section 5 right of trial by jury." Rao, 310 

Wis. 2d 623, ¶¶35 n.25, 45 (citing Phelps, 282 Wis. 2d 69, ¶28).6

 

5 See Sup. Ct. Order, Rules of Civil Procedure, 67 

Wis. 2d 585, 585-86, 689-90, 760 (1975).

6 That is not to say that our case law has been wholly 

consistent. In Bennett v. State, a criminal case, this court 

noted in passing that:

Under [Article I, section 5 of the Wisconsin 

Constitution], this court has repeatedly held that a 

party to an action may waive the right of trial by 

(continued)
No. 2014AP2581 

15

¶29 It makes sense to interpret Article I, section 5 in 

this fashion given the often broad definition of the term 

"waiver." See, e.g., Rao, 310 Wis. 2d 623, ¶22 (quoting State 

v. Kelty, 2006 WI 101, ¶18 n.11, 294 Wis. 2d 62, 716 N.W.2d 886) 

("[A] party's 'waiver' of the Article I, Section 5 right of 

trial by jury need not be a 'waiver' in the strictest sense of 

that word, that is, an 'intentional relinquishment of a known 

right.'"); William R. Anson, Principles of the Law of Contract

419 (Arthur L. Corbin ed., 3d Am. ed. 1919), quoted in Black's, 

supra ¶25, at 1813 ("The term waiver is one of those words of 

indefinite connotation in which our legal literature abounds; 

like a cloak, it covers a multitude of sins."). Interpreting 

"prescribed by law" to mean "prescribed by the legislature" 

assigns to the legislature the task of defining all the possible 

ways a person might waive his or her right to a jury trial. 

Interpreting the phrase to, for example, encompass the common 

law, allows the legislature to enumerate additional, specific 

manners of waiver, or to preclude particular manners of waiver 

 

jury, not only in the manner prescribed by law, but by 

not taking exceptions on the trial of an action 

without a jury, the right to which is secured to him 

by this section. 

Bennett v. State, 57 Wis. 69, 74 (1883). For the reasons 

provided in this opinion, we conclude that the proper inquiry 

under Article I, section 5, is to examine whether a particular 

form of jury waiver not particularly described in a statute is 

nevertheless "prescribed by law" other than statutory law, 

rather than to anchor that form to some (unexplained) basis 

independent of the constitutional text, as Bennett appears to 

have done. 
No. 2014AP2581 

16

if it so desires. This latter is the more reasonable 

interpretation, and thus the likelier one.

¶30 For all of these reasons, we conclude that the text of 

Article I, section 5 of the Wisconsin Constitution does not 

limit the manner of jury trial waiver to those set forth by 

statute. Consequently, we may look to other sources of law to 

determine whether the Parsons' putative waiver of their right to 

a jury trial was valid. This particular case may be resolved by 

turning to common law——specifically, to longstanding principles 

of contract law in Wisconsin.

¶31 "Wisconsin public policy favors freedom of contract." 

Solowicz v. Forward Geneva Nat'l, LLC, 2010 WI 20, ¶34, 323 

Wis. 2d 556, 780 N.W.2d 111 (citing AKG Real Estate, LLC v. 

Kosterman, 2006 WI 106, ¶34, 296 Wis. 2d 1, 717 N.W.2d 835); see 

also Watts v. Watts, 137 Wis. 2d 506, 521, 405 N.W.2d 303 (1987) 

("Wisconsin courts have long recognized the importance of 

freedom of contract and have endeavored to protect the right to 

contract."). "[F]reedom of contract rests on the premise that it 

is in the public interest to accord individuals broad powers to 

order their affairs through legally enforceable agreements." 

Ash Park, LLC v. Alexander & Bishop, Ltd., 2015 WI 65, ¶38 n.24, 

363 Wis. 2d 699, 866 N.W.2d 679 (alteration in original) 

(quoting E. Allan Farnsworth, 2 Farnsworth on Contracts § 5.1, 

at 1 (3rd ed. 2004)). That is, "individuals should have the 

power to govern their own affairs without governmental 

interference." Merten v. Nathan, 108 Wis. 2d 205, 211, 321 

N.W.2d 173 (1982). 
No. 2014AP2581 

17

¶32 There is no reason why waiver of a person's Article I, 

section 5 right to a jury trial should constitute an exception 

to our general presumption in favor of freedom of contract. "It 

is well settled that constitutional rights . . . may be waived." 

Booth Fisheries Co. v. Indus. Comm'n, 185 Wis. 127, 132, 200 

N.W. 775 (1924), aff'd, 271 U.S. 208 (1926). Moreover, the 

action a party must take to waive his or her Article I, section 

5 right to a jury trial pursuant to statute is quite minimal. 

For example, as explained above, a jury may be waived simply by 

failure to pay the required fee. Wis. Stat. § 814.61(4). 

Compared to a potentially accidental waiver like that, there is 

nothing inherently unjust about allowing parties to agree 

voluntarily to forego a jury in advance of trial.

¶33 In fact, the legislature has indicated agreement with 

this conclusion. Wisconsin Stat. ch. 218 ("Finance Companies, 

Auto Dealers, Adjustment Companies and Collection Agencies") 

contains a provision which states that "[e]xcept as provided 

[elsewhere], provisions of an agreement which do any of the 

following are void and prohibited: . . . waive the dealer's or 

distributor's right to a jury trial." Wis. Stat. 

§ 218.0114(9)(a)2. The chapter defines "agreement" to mean "a 

contract that describes the franchise relationship between 

manufacturers, distributors, importers and dealers." Wis. Stat. 

§ 218.0101(1) (emphasis added). In other words, the legislature 

has, in a very narrow context, prohibited contractual jury 

waivers. It would be strange for the legislature to foreclose 

such waivers under these limited circumstances if it thought 
No. 2014AP2581 

18

contractual jury waivers were prohibited in general due to a 

lack of express statutory authorization.7 

¶34 Accordingly, we conclude that, consistent with 

longstanding principles of contract law in Wisconsin, the prelitigation jury waiver provision in the contract between the 

Parsons and Associated is enforceable.

¶35 As explained, the court of appeals concluded that 

Associated bore the additional burden of demonstrating that the 

Parsons "understood the scope of and the specific nature of the 

rights given up by the waiver." Parsons, 370 Wis. 2d 112, ¶31. 

We disagree. First of all, as is apparent from our previous 

discussion, "a party's 'waiver' of the Article I, Section 5 

right of trial by jury need not be a 'waiver' in the strictest 

sense of that word, that is, an 'intentional relinquishment of a 

known right.'" Rao, 310 Wis. 2d 623, ¶22 (quoting Kelty, 294 

Wis. 2d 62, ¶18 n.11).

¶36 Second, in Wisconsin, "[w]here the terms of a contract 

are clear and unambiguous, we construe the contract according to 

its literal terms. 'We presume the parties' intent is evidenced 

by the words they [choose], if those words are unambiguous.'" 

Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348 Wis. 2d 631, 

 

7 Nor was the legislature simply considering arbitration 

agreements; Wisconsin Stat. § 218.0114(9)(b)1. explains that 

"[n]otwithstanding par. (a)2." and subject to certain 

conditions, "an agreement may provide for the resolution of 

disputes by arbitration, including binding arbitration." 

§ 218.0114(9)(b)1. 
No. 2014AP2581 

19

833 N.W.2d 586 (citation omitted) (quoting Kernz v. J. L. French 

Corp., 2003 WI App 140, ¶9, 266 Wis. 2d 124, 667 N.W.2d 751). 

While "the presumption is not conclusive in all cases," "[i]t is 

a familiar rule that those who sign written instruments are 

presumed to know their contents and their legal effect." 

Creasey Corp. v. Dunning, 182 Wis. 388, 396, 196 N.W. 775 

(1924). "Men, in their dealings with each other, cannot close 

their eyes to the means of knowledge equally accessible to 

themselves and those with whom they deal, and then ask courts to 

relieve them from the consequences of their lack of vigilance." 

Kruse v. Koelzer, 124 Wis. 536, 541, 102 N.W. 1072 (1905).

¶37 The words of the Parsons' contract are unambiguous. 

By those words, both Associated and the Parsons waived any right 

to a jury trial. Further, the contract provides, in boldface, 

that "PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD 

ALL THE PROVISIONS OF THIS NOTE." "It is not the function of 

the court to relieve a party to a freely negotiated contract of 

the burdens of a provision which becomes more onerous than had 

originally been anticipated." Ash Park, LLC, 363 Wis. 2d 699, 

¶38 (quoting 11 Richard A. Lord, Williston on Contracts § 1:1

(4th ed. 2002)). We conclude that Associated does not need to 

offer additional proof that the Parsons knowingly and 

voluntarily agreed to this waiver.

¶38 Before proceeding, we address Taft's affidavit. 

Relying on the affidavit, the court of appeals suggested that 

Associated had obtained the jury waiver provision fraudulently. 

However, "a party seeking to invalidate a provision in a 
No. 2014AP2581 

20

contract . . . has the burden of proving facts that justify a 

court's reaching the legal conclusion that the provision is 

invalid." Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 

53, ¶30, 290 Wis. 2d 514, 714 N.W.2d 155. The circuit court was 

"unpersuaded" by the allegations in Taft's affidavit and 

apparently found them to be incredible, relying in part on its 

view of Taft's business acumen and the specific characteristics 

of the waiver itself. The record adequately supports the 

circuit court's determination, and thus the court of appeals was 

not entitled to substitute its own view of the evidence for the 

circuit court's view of the evidence. See, e.g., Lemke v. 

Lemke, 2012 WI App 96, ¶55, 343 Wis. 2d 748, 820 N.W.2d 470 

("[A]n appellate court does not find facts."); State v. Turner, 

136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987) ("In general, we are 

bound not to upset the trial court's findings of historical or 

evidentiary fact unless they are contrary to the great weight

and clear preponderance of the evidence."); Klein-Dickert 

Oshkosh, Inc. v. Frontier Mortg. Corp., 93 Wis. 2d 660, 663, 287 

N.W.2d 742 (1980) ("[W]hen the trial judge acts as the finder of 

fact, he is the ultimate and final arbiter of the credibility of 

witnesses. When more than one inference can be drawn from the 

credible evidence, the reviewing court must accept the inference 

drawn by the trier of fact.").

¶39 The court of appeals did not stop there, additionally 

concluding that the clause was substantively and procedurally 

unconscionable. Parsons, 370 Wis. 2d 112, ¶¶32-39. The court 

of appeals explained that it was addressing this question 
No. 2014AP2581 

21

because it "may well arise during trial, as it did at oral 

argument." Id., ¶32. Given the posture of the case, the 

findings of the circuit court regarding the affidavit, and the 

skeletal state of the record, the decision of the court of 

appeals to reach out and opine on unconscionability was 

erroneous. The conclusion of the court of appeals that the 

Parsons' contractual jury waiver is unconscionable is reversed. 

The circuit court may decide on remand whether (and if so, when) 

unconscionability may be addressed.8

B. Whether Associated's Motion is Untimely

¶40 We have concluded that that the pre-litigation jury 

waiver provision in the contract between the Parsons and 

Associated is enforceable. But the Parsons counter Associated's 

waiver claim with a "waiver" claim of their own: they claim that 

Associated waited too long to object to the Parsons' jury demand 

 

8 The Parsons argued before the circuit court that Carol was 

not bound by the jury waiver signed by Taft. The circuit court 

rejected that argument, characterizing it as "superficial." 

Despite this warning, the Parsons' argument on this issue before 

this court is a single paragraph long and does not cite to any 

legal authorities. "[W]e do not usually address undeveloped 

arguments," and we will not do so here. State v. Gracia, 2013 

WI 15, ¶29 n.13, 345 Wis. 2d 488, 826 N.W.2d 87.

Additionally, the parties do not develop arguments that we 

should analyze waiver of any statutory right to a jury trial the 

Parsons possess differently from how we analyze waiver of their 

constitutional right to a jury trial, so we do not do so. See

Wis. Stat. § 805.01(1) ("The right of trial by jury as declared 

in article I, section 5, of the constitution or as given by a 

statute and the right of trial by the court shall be preserved 

to the parties inviolate.").
No. 2014AP2581 

22

and thus may not now do so. The circuit court below rejected 

this claim in part because the Parsons had not provided law 

supporting it. The court of appeals reversed this conclusion, 

stating that Associated had forfeited the right to strike the 

Parsons' jury demand, had waived the right under Wis. Stat. 

§ 805.01(3), and were equitably estopped from asserting the 

right. Parsons, 370 Wis. 2d 112, ¶¶21-23. We disagree with all 

three determinations.

¶41 The only statutory authority provided in this case is 

Wis. Stat. § 805.01, which states in relevant part:

(1) Right Preserved. The right of trial by jury 

as declared in article I, section 5, of the 

constitution or as given by a statute and the right of 

trial by the court shall be preserved to the parties 

inviolate.

(2) Demand. Any party entitled to a trial by 

jury or by the court may demand a trial in the mode to 

which entitled at or before the scheduling conference 

or pretrial conference, whichever is held first. The 

demand may be made either in writing or orally on the 

record.

(3) Waiver. The failure of a party to demand in 

accordance with sub. (2) a trial in the mode to which 

entitled constitutes a waiver of trial in such mode.

§ 805.01(1)-(3) (emphases added). The court of appeals 

concluded Associated was bound by the emphasized text because 

Associated viewed itself as "entitled to a trial . . . by the 

court." See Parsons, 370 Wis. 2d 112, ¶22. One problem with 

the reasoning of the court of appeals is that, pursuant to it, 

both Associated and the Parsons could waive any entitlement to a 

mode of trial and the mode of trial would remain undetermined. 
No. 2014AP2581 

23

In any event, Associated was not, in fact, "demand[ing] a trial 

in the mode to which entitled." It was instead moving to strike 

the Parsons' jury demand because the Parsons were not themselves

"entitled to a trial by jury." These are not identical actions. 

See Judicial Council Committee Note, 1974, to Wis. Stat. 

§ 805.01, S. Ct. Order, Rules of Civil Procedure, 67 Wis. 2d at 

690 ("The reference to trial by the court is included because 

Wisconsin, unlike most states, has long recognized a 

constitutional right to trial by the court in appropriate 

cases." (citing Callanan v. Judd, 23 Wis. 343 (1868)). 

¶42 The parties devote a significant amount of briefing to 

establishing with precision the timeline below and whether 

Associated's putative delay was reasonable in light of various 

events that occurred as litigation proceeded. In the absence of 

a statutory directive, we cannot conclude that the circuit 

court——the entity with the best grasp of the unfolding of the 

proceedings below and of the relative equities of the 

situation——erroneously exercised its discretion in allowing 

Associated to rely on its otherwise-enforceable agreement with 

the Parsons not to try this case before a jury. C.f., e.g., 

Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 220, 226-27 

(3d Cir. 2007) (reviewing district court's decision not to 

"bar[] DaimlerChrysler's motion to strike Tracinda's jury demand 

on the basis of laches" after DaimlerChrysler waited three years 

to file the motion under abuse-of-discretion standard). 

Further, having contracted away their right, any reliance that 

the Parsons might have had on Associated's initial acquiescence 
No. 2014AP2581 

24

in their unfounded demand for a jury trial was not reasonable. 

Because reasonable reliance is a requirement of equitable 

estoppel, Associated is not equitably estopped from striking the 

Parsons' demand. See Affordable Erecting, Inc. v. Neosho 

Trompler, Inc., 2006 WI 67, ¶33, 291 Wis. 2d 259, 715 N.W.2d 620 

("There are four elements of equitable estoppel: (1) action or 

non-action; (2) on the part of one against whom estoppel is 

asserted; (3) which induces reasonable reliance thereon by the 

other, either in action or non-action; (4) which is to the 

relying party's detriment." (emphasis added) (citing Village of 

Hobart v. Brown Cnty., 2005 WI 78, ¶36, 281 Wis. 2d 628, 698 

N.W.2d 83)).

¶43 In sum, Associated's motion to strike the Parsons' 

jury demand was not untimely.

¶44 Before we conclude, we stress that the Parsons are not 

being denied their day in court. We simply decide today that 

any trial that occurs on remand will be a bench trial. We add 

that the circuit court may determine, as this litigation 

proceeds, whether the Parsons may bring additional arguments 

related to the validity of any agreements into which they 

entered with Associated.

IV. CONCLUSION

¶45 We conclude that the pre-litigation jury waiver 

provision in the contract between the Parsons and Associated is 

enforceable and that Associated does not need to offer 

additional proof that the Parsons knowingly and voluntarily 

agreed to this waiver. We further conclude that Associated's 
No. 2014AP2581 

25

motion to strike the Parsons' jury demand was not untimely. 

Consequently, we reverse the decision of the court of appeals 

and remand the case to the circuit court for further proceedings 

consistent with this opinion.

By the Court.—The decision of the court of appeals is 

reversed, and the cause is remanded to the circuit court for 

further proceedings consistent with this opinion.

¶46 DANIEL KELLY, J., did not participate.
No. 2014AP2581.awb

1

¶47 ANN WALSH BRADLEY, J. (dissenting). The right to a 

jury trial is a bedrock principle upon which this state is 

founded. Article I, section 5 of the Wisconsin Constitution 

guarantees that the "right of trial by jury shall remain 

inviolate . . . but . . . may be waived by the parties in all 

cases in the manner prescribed by law . . . ." This case 

requires us to examine the prescribed manner by which a party 

may contractually waive this guaranteed right.

¶48 Specifically we address whether Taft and Carol Parsons 

("the Parsons") waived the right to a jury trial when Taft 

Parsons signed several loan documents, including one that 

contained a provision waiving the right to a have a jury resolve 

any claims against the lending institution.

¶49 The majority concludes that the pre-litigation jury 

waiver provision in the contract between the Parsons and 

Associated Bank-Corp ("Associated") is enforceable. Majority 

op., ¶45. In reaching its conclusion, the majority opinion 

ignores both significant precedent and the facts of this case.

¶50 Following a clear United States Supreme Court 

directive, numerous federal circuits have determined that a 

party must voluntarily and knowingly agree to a jury waiver. 

Rather than examining the totality of the circumstances, the 

majority instead rests on an ipse dixit analysis——if the jury 

waiver clause states that the waiver is knowingly and 

voluntarily made, then it must be so.

¶51 The damaging effect of the majority's departure from 

this well-established rule is demonstrated by the egregious
No. 2014AP2581.awb

2

facts of this case, which the majority to a large extent also 

ignores. Indeed, the facts here are so egregious that the court 

of appeals determined that the jury waiver clause was 

unenforceable because it "is both procedurally and substantively 

unconscionable."1 Parsons v. Associated Banc-Corp, 2016 WI App 

44, ¶39, 370 Wis. 2d 112, 881 N.W.2d 793.

¶52 According to the amended complaint, an affidavit, and 

the documents of record, the Parsons planned a townhouse 

development to refurbish their neighborhood, but their plans 

went awry during the course of dealing with the bank. Instead 

of a townhouse development they were faced with bankruptcy, 

foreclosure and loan repayment demands for work that was never 

done. The loan officer involved was convicted of bank fraud in 

federal court related to a different townhouse project, with 

remarkably similar facts to those presented here.

¶53 Among the many documents he presented for their 

signature was a promissory note that contained a jury waiver 

clause. The Parsons were not allowed any time to review the 

documents or consult with an attorney before signing them. The 

loan officer threatened them by stating that he would withdraw 

the construction loan if they did not promptly sign the 

documents. Faced with the option of losing it all or promptly 

signing the documents, Taft Parsons signed. In their complaint 

 

1 "Unconscionability has often been described as the absence 

of meaningful choice on the part of one of the parties, together 

with contract terms that are unreasonably favorable to the other 

party." Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, 

¶32, 290 Wis. 2d 514, 714 N.W.2d 155.
No. 2014AP2581.awb

3

the Parsons allege multiple acts of fraud, extortion and threats 

that occurred under the bank's watch.

¶54 Additionally, Associated waited years to object after 

the Parsons demanded a jury trial in compliance with Wisconsin's 

civil procedure statutes. The majority pays no heed to this 

delay, however, concluding that Associated's motion to strike 

the Parsons' jury demand was timely. Majority op., ¶4.

¶55 Contrary to the majority, I conclude that Associated 

Bank has not met its burden of proving that the Parsons 

knowingly and voluntarily waived their right to trial by jury. 

I further determine that Associated's motion to strike the 

Parsons' jury demand was untimely. Accordingly, I respectfully 

dissent.

I

¶56 In the span of only three paragraphs, the majority 

opinion dispenses with the question of whether Associated must 

demonstrate that the Parsons knowingly and voluntarily waived 

their right to a jury trial. See majority op., ¶¶35-37. 

Ignoring relevant precedent including the numerous federal 

circuits that have addressed this issue, the majority determines 

that "Associated does not need to offer additional proof that 

the Parsons knowingly and voluntarily agreed to this waiver." 

Id., ¶37.

¶57 Relying instead on this court's decision in Rao v. WMA 

Securities, Inc., the majority asserts that "a party's 'waiver' 

of the Article I, Section 5 right of trial by jury need not be a 

'waiver' in the strictest sense of that word, that is, an 
No. 2014AP2581.awb

4

'intentional relinquishment of a known right.'" Majority op., 

¶35 (quoting Rao, 2008 WI 73, ¶22, 310 Wis. 2d 623, 752 

N.W.2d 220). Additionally, it contends that Associated need not 

demonstrate that the waiver was knowing and voluntary because 

the terms of the Parsons' contract with Associated are 

unambiguous. Majority op., ¶¶36-37.

¶58 Despite its proffered rationales, the majority opinion 

finds little support in the law. First, its reliance on Rao is 

misplaced. In Rao, this court concluded that the circuit court 

did not violate the defendant's right to a jury trial because 

the defendant waived its right to a jury in the manner 

prescribed by law set forth in Wis. Stat. §§ 804.12(2) (failure 

to make discovery; sanctions) and 806.02 (default judgment). 

310 Wis. 2d 623, ¶5.

¶59 Taking language out of context, the majority quotes 

Rao for the proposition that a jury waiver need not be an 

intentional relinquishment of a known right. Majority op., ¶35 

(quoting Rao, 310 Wis. 2d 623, ¶22). However, the majority 

ignores that Rao did not address contractual waiver of the 

right. Rather, the context in which Rao made this statement was 

in addressing the consequences of a party's failure to comply 

with statutory requirements. See Rao, 310 Wis. 2d 623, ¶22 (a 

party may waive the right to a trial by jury "by failing to 

assert the right timely (as when a party fails to demand a jury 

trial timely in accordance with § (Rule) 805.01) or by violating 

a law setting conditions on the party's exercise of the jury 
No. 2014AP2581.awb

5

trial right (as when a party fails to pay the jury fee timely in 

accordance with Wis. Stat. § 814.61).").

¶60 Second, the majority superficially addresses the issue 

of a contractual waiver by citing the basic principle that where 

the terms of a contract are unambiguous, we presume the parties 

intent is reflected in those words. Majority op., ¶36 (quoting 

Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348 Wis. 2d 631, 

833 N.W.2d 586). The majority reasons that "it is a familiar 

rule that those who sign written instruments are presumed to 

know their contents and their legal effect." Majority op., ¶36 

(quoting Creasy Corp. v. Dunning, 182 Wis. 388, 396, 196 N.W. 

775 (1924). Accordingly, it concludes that because the words of 

the contract are unambiguous, "[b]y those words, both Associated 

and the Parsons waived any right to a jury trial." Majority 

op., ¶37.

¶61 Reliance on general principles regarding freedom of 

contract is insufficient when a contract waives a constitutional 

right. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 756 (6th 

Cir. 1985). Indeed, none of the cases cited by the majority as 

support for its conclusion——that Associated need not offer 

additional proof of knowing and voluntary waiver——even addresses 

the waiver of a constitutional right.2

 

2 See Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348 

Wis. 2d 631, 833 N.W.2d 586 (addressing a contract dispute 

between a landlord and a tenant over the terms of a commercial 

lease of property); Kernz v. J.L. French Corp., 2003 WI App 140, 

¶9, 266 Wis. 2d 124, 667 N.W.2d 751 (employment contract 

dispute); Creasy Corp. v. Dunning, 182 Wis. 388, 396, 196 

N.W. 775, 778 (1924) (action to recover payment for 

merchandise); Kruse v. Koelzer, 124 Wis. 536, 541, 102 N.W. 1072 

(continued)
No. 2014AP2581.awb

6

¶62 Third, in its fervor to genuflect at the altar of 

freedom of contract, the majority ignores the significant 

precedent that has addressed the means by which a party may 

contractually waive its right to a jury trial. As the United 

States Supreme Court explains, courts should "indulge every 

reasonable presumption" against waiver of a jury trial due to 

the right's fundamental nature. Aetna Ins. Co. v. Kennedy to 

Use of Bogash, 301 U.S. 389, 393 (1937) (citations omitted); see

also D.H. Overmyer Co. Inc., of Ohio v. Frick Co., 405 U.S. 174, 

186 (1972) ("[W]e do not presume acquiescence in the loss of 

fundamental rights.") (citation omitted). Indeed, it has 

instructed that waivers be intentional. Brookhart v. Janis, 384 

U.S. 1, 4 (1966); see also Bogash, 301 U.S. at 393; Ohio Bell 

Tel. Co. v. Public Utils. Comm'n of Ohio, 301 U.S. 292, 307 

(1937); D.H. Overmyer, 405 U.S. at 187.

¶63 The United States Supreme Court has directed, "for a 

waiver to be effective it must be clearly established that there 

was an intentional relinquishment or abandonment of a known 

right or privilege." Brookhart, 384 U.S. at 4 (internal 

citation omitted). In accordance with this directive, numerous 

federal circuits that have considered this issue have concluded 

that a jury waiver clause can only be effective where a party 

agrees to the provision knowingly and voluntarily. See Tracinda 

Corp. v. DaimlerChrysler AG, 502 F.3d 212, 222 (3d Cir. 2007)

 

(1905) (action brought to reform a warranty deed); Ash Park, LLC 

v. Alexander & Bishop, Ltd., 2015 WI 65, ¶38, 363 Wis. 2d 699, 

866 N.W.2d 679 (action seeking specific performance of real 

estate purchase agreement).
No. 2014AP2581.awb

7

("To be valid, a jury waiver must be made knowingly and 

voluntarily based on the facts of the case.") (citations 

omitted); Med. Air Tech. Corp. v. Marwan Inv., Inc., 303 F.3d 

11, 19 (1st Cir. 2002) ("courts will not enforce the jury waiver 

unless it was entered into knowingly and voluntarily"); Seaboard 

Lumber Co. v. United States, 903 F.2d 1560, 1563 (Fed. Cir. 

1990) ("Waiver requires only that the party waiving such right 

do so 'voluntarily' and 'knowingly' based on the facts of the 

case."); Leasing Serv. Corp. v. Crane, 804 F.2d 828, 833 (4th

Cir. 1986) ("Where waiver is claimed under a contract executed 

before litigation is contemplated, we agree with those courts 

that have held that the party seeking enforcement of the waiver 

must prove that consent was both voluntary and informed."); 

K.M.C., 757 F.2d at 756 ("Those cases in which the validity of a 

contractual wavier of jury trial has been in issue have 

overwhelmingly applied the knowing and voluntary standard."); 

Nat'l Equip. Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 

1977) ("It is elementary that the Seventh Amendment right to a 

jury is fundamental and that its protection can only be 

relinquished knowingly and intentionally."). But see IFC Credit 

Corp. v. United Bus. & Indus. Fed. Credit Union, 512 F.3d 989, 

992-94 (7th Cir. 2008) (declining to follow other federal 

circuits).

¶64 Additionally, the predominant federal rule comports 

with analogous Wisconsin case law, such as the contractual 

waiver-of-venue cases. Brunton v. Nuvell Credit Corp., 2010 WI 

50, ¶34, 325 Wis. 2d 135, 785 N.W.2d 302 ("[T]he waiver of a 
No. 2014AP2581.awb

8

fundamental constitutional right requires a knowing, 

intelligent, and voluntary waiver."). It is also in accord with 

the principle that the waiver of a constitutional right requires 

a voluntary act. Wendlandt v. Indus. Comm'n, 256 Wis. 62, 66, 

39 N.W.2d 854 (1949).

¶65 Whether a waiver of a constitutional right was knowing 

and voluntary is a fact-specific inquiry that is "separate and 

distinct from the operation of rules of substantive contract

law . . . ." K.M.C., 757 F.2d at 756. As the relevant case law 

instructs, this inquiry should focus on the totality of the 

circumstances. See, e.g., Med. Air Tech., 303 F.3d at 19 n.4.

¶66 This inquiry emphasizes the relative bargaining power 

of the parties, as well as other factors including the 

respective roles of the parties in determining the terms of the 

waiver, the amount of time the waiving party had to consider the 

waiver and whether the waiving party was represented by counsel. 

See Nat'l Equip. Rental, 565 F.2d at 258 (emphasizing the 

parties' inequality in bargaining power); Med Air Tech., 303 

F.3d at 19 n.4 (setting forth factors that have been considered 

as part of a totality of the circumstances analysis).

II

¶67 Although the question of whether a party knowingly and 

voluntarily waived the right to a jury is a fact-specific 

inquiry, the majority opinion asserts that "[i]n part because of 

the unusual posture of this case, the facts pertaining to this 

lawsuit are largely unimportant to the disposition of this 

appeal." Majority op., ¶5. The majority fails to explain how 
No. 2014AP2581.awb

9

the procedural posture of this case is so unusual. This case is 

before the court because the Parsons appeal a non-final order of 

the circuit court granting Associated's motion to strike the 

Parsons' jury demand.

¶68 Based on this slight justification, the majority 

opinion neglects to set forth or analyze the facts of the case 

beyond a brief summary of the allegations in the Parsons' 

complaint. Because the majority fails to do so, I set forth the 

necessary facts that inform the totality of the circumstances 

analysis. Like the court of appeals, I consider the allegations 

in the complaint, the loan documents, and the Parsons' 

affidavit.3

¶69 The events that gave rise to this appeal began when 

the Parsons obtained a home equity loan in the amount of $40,000 

and a construction loan in the amount of $774,000 from State 

Financial Bank.4 They obtained these loans because they wanted 

to convert deteriorating properties in their Milwaukee 

neighborhood, including their own home, into a townhouse 

project.

 

3 Additionally, the majority asserts that the court of 

appeals erred in considering the facts alleged in Taft Parsons 

affidavit, which is a part of the evidentiary record in this 

case. Majority op., ¶38. According to the majority, the 

circuit court was "unpersuaded" by the allegations in the 

affidavit and "[t]he record adequately supports the circuit 

court's determination . . . ." Id. However, because the 

majority fails to set forth the parts of the record it believes 

supports the circuit court's interpretation, it is the 

majority's reasoning here that is unpersuasive.

4 Associated Bank acquired State Financial Bank in 2006.
No. 2014AP2581.awb

10

¶70 The loan documents were signed by Aaron Moeser, a bank 

employee who was later convicted in federal court for fraudulent 

activity stemming from a loan scandal involving a similar 

townhouse construction project. Before any work was done on the 

Parson's townhouse project, the Parsons were instructed to sign 

five additional loan documents consisting of thirty pages of 

pre-printed forms, one of which contained the jury waiver clause 

at issue here.

¶71 According to Taft Parsons' affidavit, his objections

to the new loan documents were met with threats from Moeser to 

pull the construction loan. This would have left the Parsons 

with debt even when no construction had been completed. Taft 

received no explanation of any terms in the documents except 

oral instructions to insert a specific interest rate. The bank 

refused to allow him the time and opportunity to read the 

documents or consult an attorney.

5

¶72 Additionally, the loan documents gave State Financial 

Bank and Wisconsin Title Closing & Credit Services the authority 

to approve the contractor's construction draw requests. State 

Financial Bank and the title company were also given sole 

responsibility for verifying that the contractor had performed

the construction and other work on the project for which it

requested payment. The documents also allowed payments for 

services that were not authorized on the project budget and 

 

5

There is no evidence in the record contradicting the 

factual assertions made in the Parsons' affidavit.
No. 2014AP2581.awb

11

secured all of the debt, including the construction loan, with a 

mortgage on the Parsons' home.

¶73 After the loan documents were signed, multiple draws 

were approved over the Parsons' objections, despite the fact 

that no actual work had begun on the townhouse project. The 

Parsons later received a notice of tax levy against the 

contractor from the IRS, indicating that it owed over $300,000 

in taxes. It ordered the townhouse project to pay the IRS any 

money the project was obligated to pay the contractor. The 

Parsons then discovered a number of unpaid judgments against the 

contractor and forwarded the IRS notice and their findings to 

Moeser.

¶74 Moeser ended the construction loan and stopped 

payments to the contractor. This left the Parsons with a debt 

for the loan proceeds that had already been paid. The Parsons 

were unable to pay and State Financial Bank commenced a 

foreclosure action against the Parsons' home. State Financial 

Bank was taken over by Associated Bank, which continued the 

foreclosure action. The Parsons filed for bankruptcy, but made 

payments to the bank on the home equity loan, which resulted in 

dismissal of the foreclosure action.

¶75 I proceed next to apply those facts to the law. As 

set forth above, the federal circuits addressing this issue 

emphasize the relative bargaining power of the parties in 

considering whether a party knowingly and voluntarily agreed to 

waive the right to a jury trial. This case is analogous to 

Nat'l Equip. Rental, in which the owner of a small construction 
No. 2014AP2581.awb

12

company entered into a predatory loan agreement when he could 

not satisfy obligations on debt owed for construction equipment. 

565 F.2d at 256-57. The pre-printed loan documents contained a 

jury waiver clause, which the Second Circuit concluded was 

unenforceable. Id. at 258.

¶76 Examining the circumstances of the jury waiver, the 

Nat'l Equip. Rental court determined that "it is clear that 

Hendrix did not have any choice but to accept the NER contract 

as written if he was to get badly needed funds." Id. Thus, the 

Second Circuit concluded that "[t]his gross inequality in 

bargaining power suggests, too, that the asserted waiver was 

neither knowing nor intentional." Id.

¶77 Similarly, the facts in the record here demonstrate 

that the Parsons did not voluntarily assent to the jury waiver 

clause. The complaint and Taft Parsons' affidavit contain facts 

sufficient to show that the promissory note was presented to him 

as a "take-it-or-leave-it" deal. He was told to sign it 

immediately or risk having Moeser cancel the $774,000 

construction loan. This would have left the Parsons with

$40,000 in debt on the home equity loan, with no work having 

been completed on the townhouse project.

¶78 A number of other factors may be considered in a 

totality of circumstances analysis. Med Air Tech., 303 F.3d at 

19 n.4. These include, but are not limited to the respective 

roles of the parties in determining the terms of the waiver, the 

amount of time the waiving party had to consider the waiver and 

whether the waiving party was represented by counsel. Id.
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¶79 A number of factors that do not support a 

determination that a waiver was knowing and voluntary are 

present in this case. The Parsons had no role in determining 

the terms of the waiver, which was included among five preprinted loan documents totaling nearly thirty pages. 

Additionally, Taft Parsons was given no time to sign the waiver 

and was not permitted the opportunity to consult with counsel.

¶80 Finally, under this court's decision in Brunton, the 

party seeking to enforce the waiver of a constitutional right 

has the burden of showing that a person had actual knowledge he 

was waiving a constitutional right. 325 Wis. 2d 135, ¶36 

("Establishing that a party knew of the right at issue is 

essential to establishing waiver."). In this case, Associated 

Bank has presented no evidence rebutting the facts presented in 

Taft Parsons' affidavit. By failing to do so Associated has not 

met its burden of proof. See, e.g., Lane v. Sharp Packaging 

Sys., Inc., 2002 WI 28, ¶41, 251 Wis. 2d 68, 640 N.W.2d 788 

(resolving discovery dispute on the basis of an uncontested 

affidavit); see also Schroeder v. Wacker, No. 2000AP83–FT, 

unpublished slip op., ¶17 (Wis. Ct. App. Apr. 26, 2000) (relying 

on an uncontested affidavit to prove damages).

¶81 Accordingly, I conclude that Associated Bank has not 

met its burden of proving that the pre-litigation jury waiver 

provision in the contract between the Parsons and Associated 

Bank was made knowingly and voluntarily.
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III

¶82 Finally, I turn to the majority's conclusion that 

Associated's motion to strike the Parsons' jury demand was 

timely. Majority op., ¶43.

¶83 Pursuant to Wis. Stat. § 805.01, a party may demand a 

trial in the mode to which it is entitled at or before the 

scheduling conference or pretrial conference, whichever is held 

first:

(1) RIGHT PRESERVED. The right of trial by jury as 

declared in article I, section 5, of the 

constitution or as given by a statute and the 

right of trial by the court shall be preserved 

to the parties inviolate.

(2) DEMAND. Any party entitled to a trial by jury 

or by the court may demand a trial in the mode 

to which entitled at or before the scheduling 

conference or pretrial conference, whichever is 

held first. The demand may be made either in 

writing or orally on the record.

(3) WAIVER. The failure of a party to demand in 

accordance with sub. (2) a trial in the mode to 

which entitled constitutes a waiver of trial in 

such mode. . . .

¶84 The Parsons' complaint and amended complaint made a 

demand for a jury trial and the jury fee was timely paid. 

Associated filed multiple pleadings with no objection to the 

jury demand. However, three years into litigation, at the third 

pretrial conference, the bank raised an off-the-record objection 

to the Parsons' jury demand. It then filed a motion to strike 

the Parsons' jury demand, arguing that when Taft Parsons signed 

the promissory note with the waiver clause ten years earlier, 

the Parsons waived any right to a jury trial involving the bank.
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¶85 Nevertheless, the majority reasons that Associated was 

not demanding a trial in the mode to which it was entitled. 

Majority op., ¶41. Instead, the majority contends that it was 

moving to strike the Parsons' jury demand because the Parsons 

were not themselves entitled to a jury trial. Id.

¶86 The majority further refuses to apply equitable 

estoppel because "having contracted away their right, any 

reliance that the Parsons might have had on Associated's initial 

acquiescence in their unfounded demand for a jury trial was not 

reasonable." Majority op., ¶42. Thus, the majority concludes 

that "[b]ecause reasonable reliance is a requirement of 

equitable estoppel, Associated is not equitably estopped from 

striking the Parsons' demand." Id. (citing Affordable Erecting, 

Inc. v. Neosho Trompler, Inc., 2006 WI 67, ¶33, 291 Wis. 2d 259, 

715 N.W.2d 620.

¶87 Contrary to the majority, I conclude that even if the 

bank's objection were timely as the majority claims, the bank is 

equitably estopped from raising this objection three years into 

litigation. Equitable estoppel generally bars one party from 

taking a position upon which another party relies and then 

subsequently changing that position to the detriment of the 

relying party. See Affordable Erecting, 291 Wis.2d 259, ¶33

("There are four elements of equitable estoppel: (1) action or 

non-action; (2) on the part of one against whom estoppel is 

asserted; (3) which induces reasonable reliance thereon by the 

other, either in action or non-action; (4) which is to the 

relying party's detriment.") (citation omitted).
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¶88 The bank's failure to challenge the Parsons' jury 

demand led the Parsons to spend three years preparing for a jury 

trial. A review of the record reveals numerous motions, 

hearings, and other activity demonstrating that the parties were

moving toward trial.

¶89 It was reasonable for the Parsons to prepare for a 

jury trial because not only did they timely demand one, the bank 

actively participated in pre-trial litigation. As the court of 

appeals explained, participation by the bank without objection 

to the mode of trial "is both action (actually participating) 

and inaction (not objecting to the mode of trial) upon which the

Parsons reasonably relied." Parsons, 2016 WI App 44, ¶23.

¶90 I agree with the court of appeals that changing the 

mode of trial three years into the case is detrimental to both 

the Parsons and to reasonable and efficient court 

administration. Thus, I conclude that even if the bank's 

objection were timely, it is equitably estopped from making its 

much belated claim for a court trial.

¶91 Contrary to the majority, I conclude that Associated 

Bank has not met its burden of proving that the Parsons 

knowingly and voluntarily waived their right to trial by jury. 

I further determine that Associated's motion to strike the 

Parsons' jury demand was untimely. Accordingly, I respectfully 

dissent.

¶92 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.
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