Danelle Duncan v. Asset Recovery Specialists, Inc.

2022 WI 1, 968 N.W.2d 661, 400 Wis. 2d 1

• Court: Wisconsin Supreme Court
• Decided: January 6, 2022
• Docket: 2019AP001365
• Status: Published

Opinion

2022 WI 1

SUPREME 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 419 PDC 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 1 NOTICE 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.

2 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.

3 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. 4 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.

6 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;

7 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.

9 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 10 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 11 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 12 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).

13 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).

14 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: 15 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. 16 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?

¶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 &

17 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.

¶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.

¶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,

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.

¶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.

¶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.

1 No. 2019AP1365.pdr

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). 4 No. 2019AP1365.pdr

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 14

54, ¶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:

(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).

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. 13 No. 2019AP1365.pdr

¶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

¶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

¶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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