In Jacek Salachna v. Edgebrook Radiology, the Wisconsin Court of Appeals reversed a circuit court order denying defendant’s change of venue motion.[i] The court of appeals ruled that the circuit court committed error when it denied the motion and kept the case in Milwaukee County, even though the case involved an accident that occurred in Barron County. In doing so, the court of appeals provided helpful language for defending against forum shopping litigants.

In Jacek Salachna v. Edgebrook Radiology, the Wisconsin Court of Appeals reversed a circuit court order denying defendant’s change of venue motion.[1] The court of appeals ruled that the circuit court committed error when it denied the motion and kept the case in Milwaukee County, even though the case involved an accident that occurred in Barron County. In doing so, the court of appeals provided helpful language for defending against forum shopping litigants.

Salachna arose from a motor vehicle accident between the plaintiff, Jacek Salachna, and defendant, Shem Wark, that occurred in Barron County while Wark was in the course of his employment with Defendant Marten Transport, Ltd.[2] The plaintiff was a resident of Illinois, and the defendant was a resident of Idaho.[3] Marten Transport’s principal place of business was in Buffalo County, Wisconsin.

Defendants filed a motion to change venue pursuant to Wis. Stat. § 801.51, which provides:

Any party may challenge venue, on the grounds of noncompliance with s. 801.50 or any other statute designating proper venue, by filing a motion for change of venue:

(1) At or before the time the party serves his or her first motion or responsive pleading in the action.

(2) After the time set forth in sub. (1), upon a showing that despite reasonable diligence, the party did not discover the grounds therefor at or before that time.

Defendants argued that proper venue was in Barron County “where the claim arose” under Wis. Stat. § 801.50(2), which provides:

Except as otherwise provided by statute, venue in civil actions or special proceedings shall be as follows:

(a) In the county where the claim arose;

(b) In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;

(c) In the county where a defendant resides or does substantial business; or

(d) If the provisions under par. (a) to (c) do not apply, then venue shall be in any county designated by the plaintiff.

Defendants further argued that Barron County would be more convenient for the witnesses, including local law enforcement officers who responded to the accident, Defendant Wark who resided in Idaho, and for Marten representatives located in Buffalo County.[4]

Plaintiff argued that Milwaukee County was the proper venue because Marten does substantial business in Milwaukee.[5] Further, even if venue was not proper under Wis. Stat. § 801.50(2), plaintiff argued that the court has discretionary power under Wis. Stat. § 801.52 to “change venue” to Milwaukee County.[6] Section 801.52 states that, “[t]he court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses …” Plaintiff argued that Milwaukee was more convenient for him and most of the subrogated parties who were based in Illinois.[7] From the information available, no witnesses lived in Milwaukee County.[8]

The circuit court initially rejected plaintiff’s arguments.[9] The court (correctly) stated that “before we even get to the convenience part, you got to get through the venue statute, [Wis. Stat. §] 801.50(2)[.]”[10] The court further stated that if plaintiff was correct, then “people could be bringing lawsuits anywhere that they choose to bring them.”[11]

After a hearing, the circuit court found that Marten transport did not do substantial business in Milwaukee County.[12] Nevertheless, the court held that the convenience of the parties and witnesses warranted a discretionary change of venue under Wis. Stat. § 801.52 and entered an Order denying defendants’ motion.[13] Defendants petitioned the Wisconsin Court of Appeals for leave to file an interlocutory appeal pursuant to Wis. Stat. § 808.03(2), which was granted.[14]

On review, the court of appeals reversed the lower court’s decision and ordered the case be transferred to Barron County.[15]  The court of appeals framed the issue as, “whether a plaintiff must comply with the requirements for venue in Wis. Stat. § 801.50(2) to commence a civil action, or if a plaintiff may file an action in any county and request that the circuit court exercise its discretion under Wis. Stat. § 801.52 to keep the case.”[16] The court of appeals answered in the affirmative, observing that the use of the word “shall” in Wis. Stat. 801.50(2) indicates that compliance with the statute is mandatory, not discretionary.[17] The court indicated that Wis. Stat. § 801.50(6), stating venue “may be changed under Wis. Stat. § 801.52” is not available until venue is established under § 801.50(2).[18] Lastly, the court reasoned that Wis. Stat. § 801.52 stating a court may “change the venue to any county” does not say a court may “grant venue in any county,” suggesting Wis. Stat. § 801.52 cannot serve as the basis for proper venue in a complaint, only a motion to change venue.[19]

Notably, no insurance company was a party in Salachna, however, lessons from the case may nonetheless apply in cases involving insurance companies. It is safe to assume readers of this article frequently see complaints attempting to establish venue in a county other than the one where an accident occurred by alleging a defendant insurance company “does substantial business” in the county. Defendants in Salachna defeated this same argument regarding the defendant driver’s employer by citing an affidavit establishing that only 0.08% of the employer’s total business revenue is derived from Milwaukee County.[20] In cases where a plaintiff attempts to establish venue in a county other than where the claim arose by alleging the “substantial business” connection, parties should seek to defeat this allegation in the same fashion when warranted and cite Salachna in arguing that, because no other provisions establishing venue under Wis. Stat. § 801.50(2) apply, venue must be in the county where the claim arose.

Author Biography:

John P. Pinzl is an associate at von Briesen & Roper, S.C. in Madison. He is a member of the firm’s Litigation and Risk Management Practice Group. He focuses his practice on insurance coverage and litigation, third party recovery, medical malpractice and product liability. John obtained a bachelor’s degree from the University of Wisconsin 2010. He graduated from UW Law School in 2015. He is admitted to practice in Wisconsin state courts and both federal district courts. He is a member of the State Bar of Wisconsin and Wisconsin Defense Counsel. He was selected as a Wisconsin Rising Star by Super Lawyers in 2020-21.

[1] Jacek Salachna v. Edgebrook Radiology, 2021 Wisc. App. LEXIS 914, 2021 WL 4738850, 399 Wis. 2d 759, 966 N.W.2d 923 (single judge opinion) (recommended for publication).

[2] Id. ¶ 2.

[3] Id. ¶¶ 3-4.

[4] Id. ¶ 3.

[5] Id. ¶ 4.

[6] Id. ¶ 5.

[7] Id. ¶ 4.

[8] Id. ¶¶ 3-4.

[9] Id. ¶ 6.

[10] Id.

[11] Id.

[12] Id. ¶ 7.

[13] Id.

[14] Id. ¶ 8.

[15] Id. ¶ 20.

[16] Id. ¶ 9.

[17] Id. ¶ 14.

[18] Id. ¶ 15 (internal citation omitted).

[19] Id. ¶ 16.

[20] Id. (citing Vermont Yogurt Co. v. Blanke Baer Fruit & Flavor Co., 107 Wis.2d 603, 613, 321 N.W.2d 315, 320 (Ct. App. 1982) (Holding Defendant that conducted about 3% of its business in the given forum was not found to be enough to constitute substantial business)).