                                                                 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.
      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.




                                      2
                                                                             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.
                                                                          FILED
Associated Banc-Corp,                                                APR 13, 2017

              Defendant-Respondent-Petitioner,                          Diane M. Fremgen
                                                                     Clerk of Supreme Court

XYZ Insurance Company,

              Defendant.




      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     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
                                                 2
                                                                         No.    2014AP2581



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.


                                              3
                                                                  No.     2014AP2581



(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.


                                           4
                                                                           No.    2014AP2581



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
                                             5
                                                                  No.     2014AP2581



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

                                        6
                                                                        No.        2014AP2581


       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.

                                            7
                                                                                No.     2014AP2581



       ¶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).


                                                 8
                                                                             No.    2014AP2581



                                    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

                                             9
                                                                         No.    2014AP2581


       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

                                             10
                                                                        No.       2014AP2581



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)
                                         11
                                                            No.    2014AP2581



    ¶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).


                                    12
                                                                          No.    2014AP2581



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
                                            13
                                                                               No.     2014AP2581



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)
                                                14
                                                                   No.   2014AP2581



       ¶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.


                                         15
                                                                           No.     2014AP2581



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).
                                               16
                                                                         No.    2014AP2581



       ¶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
                                               17
                                                           No.   2014AP2581



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 pre-

litigation 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.


                                    18
                                                                           No.     2014AP2581



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
                                             19
                                                                             No.     2014AP2581



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
                                               20
                                                                       No.    2014AP2581



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.").


                                           21
                                                             No.    2014AP2581



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.


                                   22
                                                                         No.       2014AP2581



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
                                            23
                                                                          No.        2014AP2581



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
                                              24
                                                            No.     2014AP2581



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.




                                   25
                                                                                No.    2014AP2581.awb


       ¶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

                                                    1
                                                                       No.    2014AP2581.awb


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.


                                                2
                                                                         No.   2014AP2581.awb


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

                                              3
                                                                            No.    2014AP2581.awb


'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



                                                  4
                                                        No.    2014AP2581.awb


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)
                                5
                                                                 No.   2014AP2581.awb


      ¶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).

                                         6
                                                                            No.    2014AP2581.awb


("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

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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

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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.


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     ¶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.

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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

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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 pre-

printed      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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