George T. Stelling v. Middlesex Insurance Company

2023 WI App 10

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP536

†Petition for Review filed

Complete Title of Case:

GEORGE T. STELLING, A MINOR BY HIS GUARDIAN AD LITEM
ERIC J. RYBERG, MARK STELLING AND REBEKAH STELLING,

PLAINTIFFS-RESPONDENTS,

V.

MIDDLESEX INSURANCE COMPANY, FRIEDE & ASSOCIATES, LLC
AND ZACHARY J. DOROW,

DEFENDANTS,

MT. MORRIS MUTUAL INSURANCE COMPANY, EDWARD P. SCANLAN
AND OLIVER J. SCANLAN,†

DEFENDANTS-APPELLANTS,

TREK BICYCLE CORPORATION GROUP HEALTH BENEFIT PLAN,
DELTA DENTAL OF WISCONSIN AND STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,

SUBROGATED DEFENDANTS.

Opinion Filed: January 12, 2023
Oral Argument: December 5, 2022

JUDGES: Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

Appellant
ATTORNEYS: On behalf of the defendants-appellants, the cause was submitted on the
briefs of Jeffrey T. Nichols and Micaela E. Haggenjos of Crivello
Carlson S.C., Milwaukee. There was oral argument by Micaela E.
Haggenjos.

Respondent
ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the
brief of Eric J. Ryberg and David S. Blinka of Habush Habush &
Rottier, S.C., Madison. There was oral argument by David S. Blinka.

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2023 WI App 10

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 12, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP536 Cir. Ct. No. 2021CV2999

STATE OF WISCONSIN IN COURT OF APPEALS

GEORGE T. STELLING, A MINOR BY HIS GUARDIAN AD LITEM
ERIC J. RYBERG, MARK STELLING AND REBEKAH STELLING,

PLAINTIFFS-RESPONDENTS,

V.

MIDDLESEX INSURANCE COMPANY, FRIEDE & ASSOCIATES, LLC
AND ZACHARY J. DOROW,

DEFENDANTS,

MT. MORRIS MUTUAL INSURANCE COMPANY, EDWARD P. SCANLAN AND
OLIVER J. SCANLAN,

DEFENDANTS-APPELLANTS,

TREK BICYCLE CORPORATION GROUP HEALTH BENEFIT PLAN,
DELTA DENTAL OF WISCONSIN AND STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,

SUBROGATED DEFENDANTS.
No. 2022AP536

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed and cause remanded for further
proceedings.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

¶1 KLOPPENBURG, J. George Stelling was injured when the vehicle
in which he was a passenger was involved in an accident in Sauk County,
Wisconsin. George Stelling, by his guardian ad litem, and his parents Mark and
Rebekah Stelling (collectively, “Stelling”), subsequently filed this negligence action
in the Dane County Circuit Court against the drivers and owners of the vehicles
involved in the accident and their insurers. Defendants Mt. Morris Mutual
Insurance Company, Edward Scanlan, and Oliver Scanlan filed a motion to change
venue from Dane County to Sauk County. Defendants Middlesex Insurance
Company, Friede & Associates, LLC, and Zachary Dorow filed a letter in the circuit
court joining Mt. Morris’s motion.1 In support of its motion, Mt. Morris argued that
it is entitled to a change in venue as a matter of right under WIS. STAT.
§ 801.50(2)(a) and (c) (2019-20) because it presented evidence showing that
Mt. Morris Mutual does not do substantial business in Dane County, thereby
rendering venue improper as to Mt. Morris Mutual.2 In the alternative, Mt. Morris
sought a discretionary change in venue to Sauk County in the interest of justice and

1
When referring to the parties’ filings and arguments, we refer to defendants Mt. Morris
Mutual Insurance Company, Edward Scanlan, and Oliver Scanlan collectively as “Mt. Morris,” and
to defendants Middlesex Insurance Company, Friede & Associates, LLC, and Zachary Dorow
collectively as “Middlesex.” We refer to each insurance company individually as “Mt. Morris
Mutual” and “Middlesex Insurance,” and to Friede and Associates, LLC, individually as “Friede.”
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2022AP536

for the convenience of the parties and witnesses under WIS. STAT. § 801.52. The
circuit court denied the motion to change venue under both §§ 801.50(2) and
801.52. This court granted Mt. Morris’s petition for leave to appeal the circuit
court’s order under WIS. STAT. § 808.03(2).3

¶2 Mt. Morris focuses in this appeal, as it did in the circuit court, on
whether venue in Dane County is proper as to Mt. Morris Mutual. Mt. Morris
argues that Mt. Morris Mutual is entitled to a change in venue as a matter of right
because WIS. STAT. § 801.50(2)(c) limits venue to only one county where a
defendant does “substantial business,” and the evidence shows that Dane County is
not that county as to Mt. Morris Mutual. Mt. Morris argues in the alternative that,
if venue in Dane County is proper as to Mt. Morris Mutual, the circuit court
erroneously exercised its discretion in determining that a change of venue to Sauk
County is not “in the interest of justice or for the convenience of the parties or
witnesses” under WIS. STAT. § 801.52.

¶3 We reject Mt. Morris’s argument for a change of venue as a matter of
right, and affirm the circuit court, on several independent bases. One basis stems
from the longstanding rule from our supreme court that, in an action against multiple
defendants, if venue is proper as to any one defendant, then the action is properly
venued, and any other defendant is not entitled to a change in venue as a matter of
right. State ex rel. Boyd v. Aarons, 239 Wis. 643, 646, 2 N.W.2d 221 (1942) (“[I]t
is the rule in Wisconsin that if there are several parties defendant and the venue is
well founded in respect of any one defendant, the other defendants are not entitled
to secure a change of venue.”).

3
Middlesex did not petition for leave to appeal the circuit court order on venue.

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No. 2022AP536

¶4 The moving defendants in the circuit court were Mt. Morris Mutual
and its insureds, and Middlesex Insurance and its insureds. The circuit court’s order
denied “[t]he Defendants’” motion to change venue as a matter of right. Middlesex
Insurance and Friede have not petitioned for appellate review. The circuit court
venue order as to Middlesex Insurance and Friede controls and cannot be reversed.
Thus, the rule in Boyd requires that we reject Mt. Morris’s appeal, affirm the order,
and remand for further proceedings.

¶5 The next independent basis to conclude that Mt. Morris’s appeal fails
is that the movants did not show in the circuit court that venue in Dane County is
improper as to each of Middlesex Insurance, Friede, and Mt. Morris Mutual under
the venue selection statutes, WIS. STAT. §§ 801.50-801.53. This basis is supported
by alternative grounds: (1) the challenge to venue fails because Middlesex did not
timely move in the circuit court to change venue as to the non-natural person
defendants Middlesex Insurance and its insured Friede, and did not present any
proof or argument in the circuit court showing that Middlesex Insurance and Friede
do not do substantial business in Dane County; (2) the circuit court properly denied
the motion to change venue as a matter of right because Mt. Morris failed to support
the motion with proof or argument in the circuit court that Middlesex Insurance and
Friede do not do substantial business in Dane County; (3) the circuit court properly
determined that the proof provided by Mt. Morris is sufficient to show that
Mt. Morris Mutual does substantial business in Dane County. For each of those
reasons, the motion to change venue as a matter of right was properly denied by the
circuit court.

¶6 As to Mt. Morris’s argument under WIS. STAT. § 801.52, we conclude
that the circuit court properly exercised its discretion in denying the motion to
change venue under § 801.52. Accordingly, we affirm.

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No. 2022AP536

BACKGROUND

¶7 The following material facts are not disputed. In October 2019, two
vehicles accidentally collided in Sauk County. Oliver Scanlan was the driver of one
of the vehicles involved in the collision, and George Stelling was in the passenger
seat of that vehicle. At the time of the accident, Oliver Scanlan was a minor and he
was driving the vehicle owned by, and with the permission of, Edward Scanlan. The
other vehicle was owned by Friede and was driven by Zachary Dorow, a Friede
employee.

¶8 Stelling filed a complaint in Dane County naming as defendants the
drivers and the owners of the vehicles, their insurers, and several subrogated
parties.4 In the complaint, Stelling alleged that the drivers were negligent in the
operation of their respective vehicles and that George Stelling suffered severe
injuries as a result of the collision.

¶9 George Stelling and his parents are residents of Sauk County. Oliver
Scanlan and Edward Scanlan are also residents of Sauk County. Zachary Dorow is
a resident of Sauk County. Dorow’s employer, Friede, is a domestic business with
its principal office in Sauk County. Mt. Morris Mutual, which insured Edward and
Oliver Scanlan at the time of the collision, has its principal office in Waushara
County. Middlesex Insurance, which insured Friede and Dorow at the time of the
collision, has its principal office in Portage County.

¶10 Mt. Morris filed a motion to change venue to Sauk County and
Middlesex, by letter, subsequently joined the motion. Mt. Morris argued that it is
entitled to a change in venue as matter of right because venue in Dane County is

4
The parties do not discuss whether the subrogated parties must be considered in the venue
analysis. Thus, we do not decide that issue or refer further to the subrogated parties.

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No. 2022AP536

improper as to Mt. Morris Mutual under WIS. STAT. § 801.50(2)(c), based on
evidence that it asserted shows that Mt. Morris Mutual does not do substantial
business in Dane County.5 That evidence comprises averments that Mt. Morris
Mutual had, as of February 1, 2022, 559 insurance policies in force in Dane County
and, as of March 7, 2022, earned $859,145 in annual premiums from those policies.
Alternatively, Mt. Morris sought a discretionary change of venue to Sauk County in
the interest of justice and for the convenience of the parties and witnesses under
WIS. STAT. § 801.52. Mt. Morris and Stelling filed briefs with supporting affidavits
and presented arguments at a hearing, at the conclusion of which the circuit court
issued a ruling denying “[t]he Defendants’ motion.”

¶11 After this court granted Mt. Morris’s petition for leave to appeal,
Mt. Morris and Stelling filed their appellate briefs and this court held oral argument.

¶12 We will present additional background regarding the parties’ filings,
the evidence presented in the circuit court, and the circuit court’s ruling in the
analysis that follows.

5
WISCONSIN STAT. § 801.50(2) provides as follows:

(2) 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.

Sec. 801.50(2).

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No. 2022AP536

DISCUSSION

¶13 The parties do not dispute that venue in Dane County is not proper as
to the Stellings, the Scanlans, and Dorow. The resolution of Mt. Morris’s appeal
based on its asserted entitlement to a change of venue as a matter of right depends
on whether venue in Dane County is also improper as to Mt. Morris Mutual,
Middlesex Insurance, and Friede. In the first two sections that follow, we explain
why we reject Mt. Morris’s appeal on this basis. In the third section, we explain
why we reject Mt. Morris’s appeal based on its challenge to the circuit court’s denial
of its motion for a change a venue as a matter of discretion.

I. FAILURE OF MT. MORRIS’S APPEAL BASED ON MIDDLESEX
INSURANCE’S AND FRIEDE’S FAILURE TO APPEAL

¶14 To repeat, the circuit court order that Mt. Morris’s appeal denied
“[t]he Defendants’ motion” to change venue, and those defendants were Mt. Morris
and Middlesex.

¶15 In this court, more than three months after we granted Mt. Morris’s
petition for leave to appeal that order, Middlesex filed a “Statement Joining
Mt. Morris’ Appeal.” The Statement notes that Middlesex joined Mt. Morris’s
motion in the circuit court and states that Middlesex had advised Mt. Morris’s
counsel that Middlesex “supports and joins” Mt. Morris’s position on appeal. The
Statement concludes, “There is no formal procedure set forth in the Wisconsin
Statutes to join/support another party’s position without filing a separate brief. That
being the case, Middlesex respectfully requests that the Court of Appeals take notice
that Middlesex joins Mt. Morris’ appeal.”

¶16 This court issued an order stating, “Defendant Middlesex Insurance
Company, Inc., has written this court that it is aligned with the position of the

7
No. 2022AP536

appellant. However, while Middlesex participated as a defendant in the circuit
court, it is not designated as a party on appeal, and does not assert that it should be
designated as a party in this appeal.” Accordingly, this court stated that it “will take
no action on the current filing.”

¶17 Orders relating to venue are appealable by permission under WIS.
STAT. § 808.03(2). A party must petition for leave to appeal a non-final order within
14 days after entry of the order. WIS. STAT. §§ 808.04(1); 809.50(1). Middlesex
Insurance and Friede have not petitioned for leave to appeal the venue order, and
those corporations have not moved to intervene in this appeal pursuant to WIS.
STAT. § 809.13.

¶18 Under Boyd, venue must be improper as to all defendants in order to
entitle any one defendant to a change in venue. Boyd, 239 Wis. at 646 (“[I]t is the
rule in Wisconsin that if there are several parties defendant and the venue is well
founded in respect of any one defendant, the other defendants are not entitled to
secure a change of venue.”).6 The circuit court’s order here rejected the position of
the moving defendants, Mt. Morris and Middlesex, that venue in Dane County is
improper as to them. Thus, the circuit court order that venue in Dane County is
proper as to Mt. Morris Mutual, Middlesex Insurance, and Friede controls in terms
of venue as to those defendants unless reversed by this court. Because Middlesex
did not petition to appeal the order determining that venue in Dane County is proper
as to Middlesex Insurance and Friede, and because those parties did not intervene
in this appeal, Boyd requires that we reject Mt. Morris’s appeal of the venue order.

6
The rule that venue is proper unless it is improper as to all defendants, as stated in State
ex rel. Boyd v. Aarons, 239 Wis. 643, 646, 2 N.W.2d 221 (1942), remains the law. Our research
reveals no published Wisconsin case that has cited or modified this proposition stated in Boyd.

8
No. 2022AP536

¶19 On appeal in its reply brief, Mt. Morris does not respond to Stelling’s
reliance, in his response brief on appeal, on Middlesex Insurance’s and Friede’s
failures “to dispute the circuit court’s ruling,” under the rule stated in Boyd, as one
basis for affirming the circuit court’s venue order. At oral argument, Mt. Morris
asserted that the circuit court did not decide that venue in Dane County is proper as
to Middlesex Insurance and Friede. However, this assertion is shown to be incorrect
by the circuit court’s order denial of “[t]he Defendants’ motion,” which by its terms
includes all of the moving defendants including Middlesex Insurance and Friede.
Accordingly, Mt. Morris has provided no basis to counter our conclusion that, under
these circumstances, Boyd requires that this court affirm the circuit court’s venue
order.

¶20 Our discussion to this point is dispositive, and we could end our
discussion of WIS. STAT. § 801.50(2) here and move directly to our discussion of
the request for a discretionary change of venue under WIS. STAT. § 801.52.
Nevertheless, for the sake of completeness and based on the nature of the parties’
arguments, we discuss other issues in the section that follows.

II. FAILURE OF MT. MORRIS’S APPEAL UNDER WIS. STAT. § 801.50(2)

¶21 Addressing the merits of Mt. Morris’s challenge to the circuit court’s
venue order would call for the interpretation of the venue selection statutes, WIS.
STAT. §§ 801.50-801.53, and their application to undisputed facts, which are
questions of law that we review independently of the circuit court. Enpro
Assessment Corp. v. Enpro Plus, Inc., 171 Wis. 2d 542, 545-46, 492 N.W.2d 325
(Ct. App. 1992); Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶9, 400
Wis. 2d 417, 970 N.W.2d 1.

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No. 2022AP536

¶22 When interpreting a statute, our analysis begins with the statutory text.
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. We give the words used by the legislature their “common,
ordinary and accepted meaning.” Id. In addition, statutory language must be
interpreted “in the context in which it is used; not in isolation but as part of a whole;
in relation to the language of surrounding or closely-related statutes; and reasonably,
to avoid absurd or unreasonable results.” Id., ¶46. A review of statutory history
can be part of a plain meaning analysis “because it is part of the context in which
we interpret statutory terms.” County of Dane v. LIRC, 2009 WI 9, ¶27, 315
Wis. 2d 293, 759 N.W.2d 571 (quoting Richards v. Badger Mut. Ins. Co., 2008 WI
52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581); see also Brey, 400 Wis. 2d 417, ¶20.
“Previous cases construing a statute also become a part of our understanding of a
statute’s plain meaning.” Meyers v. Bayer AG, 2007 WI 99, ¶23, 303 Wis. 2d 295,
735 N.W.2d 448. “If this process of analysis yields a plain, clear statutory meaning,
then there is no ambiguity, and the statute is applied according to this ascertainment
of its meaning.” Kalal, 271 Wis. 2d 633, ¶46 (citation omitted).

A. Applicable Statutes

¶23 The following statutes are pertinent to this issue. WISCONSIN STAT.
§ 801.50(2) states the alternative ways of establishing venue in civil actions, and we
have provided the text of this statute in footnote four above.

¶24 WISCONSIN STAT. § 801.51 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 [the
party’s] first motion or responsive pleading in the action.

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No. 2022AP536

(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.

Sec. 801.51; see also WIS. STAT. § 802.06(2)(b) (“Objection to venue shall be made
in accordance with s. 801.51.”).

¶25 Pursuant to WIS. STAT. § 801.53, motions to change venue “under ss.
801.51 and 801.52 shall be determined on the basis of proofs submitted by the
parties unless the court orders a hearing or oral argument.” Sec. 801.53.

¶26 As quoted above, WIS. STAT. § 801.50(2) presents three categories of
connections between a county and a case from which a plaintiff may choose to
support the plaintiff’s choice of venue—where the claim arose, where property that
is the subject of the claim is situated, or where a defendant resides or does substantial
business—and provides that, where no such connections exist, venue is in any
county designated by the plaintiff. Sec. 801.50(2). The parties do not dispute that,
because the statute uses the connector “or,” a plaintiff may choose among whichever
of the options in § 801.50(2)(a)-(c) apply and, if none apply, then proceed to select
a county under (d).

¶27 The parties dispute whether venue is proper in Dane County as to the
non-natural person defendants Mt. Morris Mutual, Middlesex Insurance, and Friede
under WIS. STAT. § 801.50(2)(c) (“where a defendant resides or does substantial
business”). Putting aside what we have determined to be a dispositive Boyd issue
as explained above, we now discuss why we reject Mt. Morris’s challenge to venue
as to all three of the non-natural person defendants, Mt. Morris Mutual, Middlesex
Insurance, and Friede. We begin by interpreting the language in § 801.50(2)(c),
which provides that venue is proper “where a defendant resides or does substantial
business.” Sec. 801.50(2)(c). We next provide additional pertinent background.

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No. 2022AP536

We then apply § 801.50(2)(c) together with WIS. STAT. § 801.51 (governing the
procedure by which “any party” may move to change venue) and WIS. STAT.
§ 801.53 (providing that a motion to change venue “shall be determined on the basis
of proofs submitted by the parties”) to the circumstances here and explain why we
would affirm the circuit court on this alternative set of grounds.

B. Interpretation of “where a defendant resides or does substantial business”
in WIS. STAT. § 801.50(2)(c)

¶28 Mt. Morris argues that the legislature intended to establish in WIS.
STAT. § 801.50(2)(c) that venue is proper for non-natural person defendants in at
most two counties, the one where the defendant has its principal office and the one
where it does substantial business. We reject this argument. Mt. Morris does not
cite to any legal authority to support its position and conceded at oral argument that
it is aware of no Wisconsin law supporting its position. Further, as we now explain,
Mt. Morris’s position is contrary to the meaning of the statute’s plain language and
to case law interpreting the statute.

¶29 We first turn to the interpretation of the word “business” in the phrase
“does substantial business” in WIS. STAT. § 801.50(2)(c). This court defined that
word in Enpro, 171 Wis. 2d at 546. The court applied the basic principles that “[w]e
construe nontechnical words and phrases according to their common and ordinary
usage” and that “[t]he common and ordinary usage of words may be established by
their definition in a recognized dictionary.” Id. at 546. The court adopted the
following dictionary definitions of “business”: “activity directed toward some end”
or “a commercial or mercantile activity customarily engaged in as a means of
livelihood.” Id. The court then applied those definitions to the defendant’s
“activities” in St. Croix County, which consisted of direct mail and other

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No. 2022AP536

advertising, and determined that those activities constituted mercantile activity
directed to the end of reaching customers. Id. Accordingly, the court concluded
that the defendant “engaged in business” in the county. Id. Summarizing, the use
of the term “business” as interpreted in Enpro requires a showing that the defendant
engages in commercial activity.

¶30 We now turn to the meaning of “does substantial business” in WIS.
STAT. § 801.50(2)(c). Enpro is the only binding Wisconsin precedent that has
applied the phrase “does substantial business” in § 801.50(2)(c) to the facts of a
case. Id. at 546-52. In Enpro, this court addressed whether a Wisconsin corporation
with its corporate office in Calumet County was properly sued in St. Croix County.
Id. at 542. The sole issue was whether the corporation did substantial business “in
the county where venue is sought.” Id. at 542, 549. The corporation made no sales
in St. Croix County and its only contacts with St. Croix County consisted of
advertising in two statewide publications, six or seven direct mailing efforts that
reached St. Croix County, and a listing on a statewide Department of Natural
Resources directory of consultants and contractors. Id. at 545.

¶31 Notably for our purposes, the Enpro court clarified that the inquiry
does not ask which is the county where the defendant does the most business but,
instead, asks whether there is “substantial business” by the defendant in “the
county” designated as the lawsuit venue by the plaintiff. Enpro, 171 Wis. 2d at 549
(quoting WIS. STAT. § 801.50(2)(c)).

¶32 This court first stated that “substantial business” within a county does
not require the presence of any office or employees there. Id. at 549. Rather, the
court considered the defendant’s commercial activities in St. Croix County to
determine whether the defendant did substantial business so as to support venue in

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No. 2022AP536

that county, even though the defendant’s principal office was in Calumet County.
Id. at 551-52. Thus, under Enpro, evidence of where a defendant has its principal
office does not suffice to show that a defendant does substantial business only in
that county.

¶33 In Enpro, this court also considered case law that has addressed what
activities constitute “substantial business” under other statutes. In particular, the
court considered personal jurisdiction cases that involved the issue of whether a
plaintiff has established personal jurisdiction (at the statewide level, not the county
level) under Wisconsin’s “long-arm” statute, WIS. STAT. § 801.05, and in that
context applied the phrase “substantial and not isolated activities” contained in the
long-arm statute. Id. at 547-51; see § 801.05. This court in Enpro noted that the
corporation’s contacts with St. Croix County in that case were not as great as those
of the nonresident defendants in the personal jurisdiction cases. Id. at 551. The
court ultimately determined that, when one gives the language in WIS. STAT.
§ 801.50(2)(c) “its ordinary and accepted meanings,” the corporation’s contacts
with St. Croix County were too “slight” to constitute “substantial business.” Id. at
552. The court reached this conclusion by applying “the ordinary and accepted
meaning” of the words “substantial business” in § 801.50(2)(c). Id.

¶34 Enpro does not provide specific definitions of the term “substantial”
or the phrase “substantial business” in this context, and therefore we supplement
our interpretation of the statutory language and Enpro by turning to dictionary
definitions. See Lemmer v. Schunk, 2008 WI App 157, ¶10, 314 Wis. 2d 483, 760
N.W.2d 446 (“We may use a dictionary to establish the common meaning of a
word”). The following definition is reasonably representative of various dictionary
definitions of the word “substantial”: “considerable in importance, value, degree,

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No. 2022AP536

amount, or extent.” Substantial, AMERICAN HERITAGE COLLEGE DICTIONARY (3rd
ed. 1992).

¶35 With all of that as background, we determine the meaning of “does
substantial business” in WIS. STAT. § 801.50(2)(c) by: (1) applying Enpro’s focus
on the extent of business done by the defendant in the county designated as the
lawsuit venue by the plaintiff; and (2) using the dictionary definition of “business”
noted in Enpro, 171 Wis. 2d at 546, along with the dictionary definition of
“substantial” just quoted. Doing so, we interpret the phrase “does substantial
business” in § 801.50(2)(c) to mean that the extent of the defendant’s various
commercial activities and business relationships, of any type, conducted or
occurring at least in part in the county at issue, considered in isolation or relative to
the defendant’s total commercial activity and business relationships, is
considerable.

¶36 The “statutory history that underlies the current version” of WIS.
STAT. § 801.50(2) supports this plain language interpretation. See County of Dane,
315 Wis. 2d 293, ¶27 (statutory history is part of a plain meaning analysis). In 1983
Wisconsin Act 228, Section 10, the legislature repealed WIS. STAT. §§ 801.50-
801.53 (1981-82) and created the current version of §§ 801.50-801.53, including the
current version of § 801.50(2). The prior version of the statute included numerous
subsections that addressed proper venue specific to different types of actions and
different classes of parties, as well as the current “catch-all” subpart (now
§ 801.50(2)(d)) providing for venue in any county if none of the other subparts
apply. See § 801.50 (1981-82). Pertinent here, the current version of § 801.50 no
longer distinguishes among types of businesses or defendants, but simply allows a

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No. 2022AP536

plaintiff to designate a county as the lawsuit venue if it is one in which the defendant
does substantial business, as we have interpreted that language above.7

¶37 Mt. Morris makes a series of arguments contesting our plain language
interpretation. We now explain why none of these arguments have merit.

¶38 First, Mt. Morris argues that, had the legislature intended in WIS.
STAT. § 801.50(2)(c) to provide that venue is proper if the county designated by a
plaintiff is one in which a defendant does substantial business, it would have used
the phrase “any county,” not “the county,” and that the use of “the” before “county”
denotes exclusively one county. However, this argument ignores the phrase
qualifying the county to be designated, as being one in which the defendant “does
substantial business.” Sec. 801.50(2)(c). Had the legislature intended to limit such
a designation to only one county, it would have necessarily used such limiting
phrases as “does the most business” or “does a majority of its statewide business.”8
Indeed, at oral argument Mt. Morris appeared to concede that its argument required

7
The Judicial Council Prefatory Note for 1983 Wisconsin Act 228 explains that the
amendment “provides[] simplification of the general venue statute for civil actions. By eliminating
archaic distinctions under the prior statute, the substitute amendment liberalizes the plaintiff’s
initial choice of forum.”

“The Judicial Council notes appear with the text of the rules and laws in the Wisconsin
Statutes, but neither the court nor the legislature ordinarily adopts the Notes as part of the statute
or rule. Courts have used the Notes to aid in interpretation of a statute.” State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶69, 271 Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, J.,
concurring). See also Moya v. Aurora Healthcare, Inc., 2017 WI 45, ¶18, 375 Wis. 2d 38, 894
N.W.2d 405 (“we may consult extrinsic sources to confirm our understanding of the plain language
of a statute.”); Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶¶11, 21, 400 Wis. 2d 417, 970
N.W.2d 1 (noting that legislative history is extrinsic evidence of a statute’s meaning that “becomes
relevant only to confirm” the statute’s fair meaning).
8
One additional problem with Mt. Morris’s proposed interpretation is that, in the context
of determining venue, it does not account for, and does not allow reasoned analysis regarding, the
non-natural person defendant that engages in extensive national or international business activities,
some of which occur in significant amount in one or more counties in Wisconsin but the most
substantial of which occur outside Wisconsin.

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No. 2022AP536

inserting “the most” before “substantial business” in the statute. However, this court
has no authority to insert such qualifying words into a statute. See Fond du Lac
Cnty. v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (“One of the
maxims of statutory construction is that courts should not add words to a statute to
give it a certain meaning.”); State v. Wiedmeyer, 2016 WI App 46, ¶13, 370 Wis. 2d
187, 881 N.W.2d 805 (“It is not up to the courts to rewrite the plain words of statutes
….”); Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d
316 (“We decline to read into the statute words the legislature did not see fit to
write.”).

¶39 Second, Mt. Morris argues that the use of “the” rather than “a” before
“county” in WIS. STAT. § 801.50(2)(c) indicates that the subpart (c) applies only to
a single county. We acknowledge that “the” is a definite article that is generally
“used as a function word to indicate that a following noun or noun equivalent refers
to someone or something that is unique.” State v. Arberry, 2018 WI 7, ¶19, 379
Wis. 2d 254, 905 N.W.2d 832 (citing The American Heritage Dictionary of the
English Language 1333 (1969) (“The” is used “[b]efore singular or plural nouns and
noun phrases that denote particular specified persons or things.”)). In contrast to
“a” or “any,” which are indefinite articles that could refer to an unspecified noun,
“the” generally signifies a specific, unique noun. Id. Under this general rule, here,
“the county where a defendant resides or does substantial business” would mean the
single county in which a defendant does substantial business. However, as
explained above, Mt. Morris’s interpretation, that a defendant can do substantial
business in only one county, would require adding words to the statute to clarify
that “substantial” means “the most substantial,” which we cannot do. Further, as
we next explain, Mt. Morris’s interpretation is also not consistent with an
interpretation of the statute viewed as a whole.

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No. 2022AP536

¶40 That the general rule about the meaning of “the” does not apply here
follows logically from the immediately preceding section, WIS. STAT.
§ 801.50(2)(b): “In the county where the real or tangible personal property, or some
part thereof … is situated.” “The county” cannot logically mean a single county
when a “part” of some property is located in one county and another “part” is located
in a different county. Just as it would suffice under the statute if the county
designated by the plaintiff is one in which a part of the property is located, so it
suffices under the statute if the county designated by the plaintiff is one in which
the defendant does substantial business. To interpret “the” as Mt. Morris proposes
would be to disregard the statute as a whole, ignore the statutory history noted
above, and adopt a “literalistic” approach divorced from the context and “fair
meaning” of the text. See Brey, 400 Wis. 2d 417, ¶11.

¶41 In addition, Mt. Morris’s interpretation would have the
counterintuitive result of imposing an unreasonable burden on plaintiffs and
generating uncertainty for all parties, because a plaintiff would be required to
determine before filing suit: all of the counties in which a defendant does business;
in which of those counties the business is substantial; and, of those counties, the
county in which the defendant does the most substantial business. We note that
Mt. Morris acknowledged at oral argument in this appeal that the information it
disclosed for purposes of the venue issue regarding the number of its policies in
force and the revenue earned from those policies is not publicly available. Under
our plain meaning interpretation, which matches the apparent intention of the
legislature, the plaintiff may be able to determine whether a defendant does
substantial business in the county it seeks to designate as venue without the
unreasonable burden proposed by Mt. Morris’s argument.

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No. 2022AP536

¶42 Third, Mt. Morris points to the use of “any county” in subpart (d),
which provides that “venue shall be in any county designated by the plaintiff” if the
provisions of (a), (b), and (c) do not apply. WIS. STAT. § 801.50(2)(d). Mt. Morris’s
argument based on the phrase “any county” in subpart (d) is not clear. In any case,
as noted above, subpart (d) on its face is a catch-all provision that reflects the
legislature’s intent to impose no limits on venue only when there is no connection
between particular counties and where the claim arose, where parts of property that
is the subject of the claim are situated, or where a natural person defendant resides
or a non-natural person defendant does substantial business. Sec. 801.50(2)(a)-(d).
Whatever Mt. Morris intends to argue on this point, there is no indication in the
reference to “any county” in subpart (d) that the references to “the county” in
subparts (a)-(c) must be to connections with only one county.

¶43 Fourth, Mt. Morris argues that subparts (a) and (b) of WIS. STAT.
§ 801.50(2) show that “the legislature chose to limit proper venue to a small list of
places” and that to interpret subpart (c) as allowing a plaintiff to designate venue in
any county where a defendant does substantial business is contrary to that choice.
This argument is based on a false premise. A defendant may do business that is
substantial in a large number of counties. Moreover, we discern no language in
subparts (a) or (b) limiting proper venue to only one county. A complaint may
contain one or more claims that arose in more than one county and parts of property
that are the subject of the claim or claims may be situated in more than one county;
no language in these subparts precludes a plaintiff from designating venue in any of
those counties.

¶44 Fifth, Mt. Morris argues that our plain meaning interpretation of the
language in WIS. STAT. § 801.50(2)(c) must be rejected because it would be absurd
to allow a defendant such as an insurance company that does business throughout

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No. 2022AP536

Wisconsin to be sued in any of the counties in which it conducts substantial
business. However, Mt. Morris does not explain why it would be absurd for a
defendant that does business throughout Wisconsin to be subject to suit in the
counties where the commercial activity it conducts is substantial, even if that
represents most or all 72 counties. As stated above, we understand the legislature
to have intended to avoid the unreasonable and counterintuitive results that would
seemingly follow from requiring a plaintiff to determine before filing suit in which
county the defendant conducts the most substantial commercial activity in order to
identify the county that the plaintiff may designate as venue. Moreover, in a given
case, a defendant can seek redress for any perceived injustice or inconvenience
through a motion for discretionary change of venue under § 801.52.

¶45 We next provide additional background pertinent to the application of
WIS. STAT. § 801.50(2)(c) here.

C. Additional Background

¶46 Middlesex timely filed an answer to Stelling’s complaint and, in its
answer, Middlesex asserted improper venue as an affirmative defense.

¶47 Mt. Morris timely filed an answer and filed a motion to change venue
and a supporting brief and affidavits. Mt. Morris argued that it is entitled to a change
in venue as a matter of right because venue in Dane County is improper and, in the
alternative, for a discretionary change of venue. In its brief, Mt. Morris stated that
all of the following occurred or were located in Sauk County: the accident itself;
the residences of defendants Edward and Oliver Scanlan and Zachary Dorow; and
defendant Friede “is in” that county. Mt. Morris stated that Stelling failed to allege
that the insurance companies do substantial business in Dane County and that
Stelling cannot show that both insurance companies do substantial business in Dane

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No. 2022AP536

County.9 Mt. Morris referenced the averments in one of its affidavits regarding the
number of polices sold in each county in Wisconsin and the revenue from the sales
of the policies in Dane County, and asserted that that evidence shows that
Mt. Morris does not do substantial business in Dane County.

¶48 Approximately one month after filing its answer, Middlesex
submitted a letter informing the circuit court that it joined Mt. Morris’s motion to
change venue.

¶49 In his response brief in the circuit court, Stelling asserted that
Middlesex Insurance is a subsidiary of Sentry Insurance and that a Google search
shows that Sentry has two agency offices in Dane County. Stelling argued that that
information and the evidence presented by Mt. Morris show that both insurance
companies do substantial business in Dane County. Stelling also filed an affidavit
attaching George Stelling’s medical records showing that he received accident-
related care at the University Hospital in Madison.

¶50 At the start of the hearing on the motion, the circuit court addressed
Middlesex’s counsel: “Your client has joined in this motion. Do you intend to
present any argument today?” Counsel responded, “No.” The court then told
Mt. Morris’s counsel, “You may proceed,” and counsel presented arguments
consistent with those it makes on appeal regarding venue for Mt. Morris Mutual.
Stelling’s counsel argued that the evidence presented by Mt. Morris shows that
Mt. Morris Mutual does substantial business in Dane County, and that Middlesex,

9
Mt. Morris actually stated that Stelling cannot show that both insurance companies do
substantial business “in Wisconsin.” We understand this to be an erroneous reference to the State,
and Mt. Morris meant Dane County.

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No. 2022AP536

“which is a subsidiary of Sentry Insurance [which] has two agency offices in Dane
County,” also does substantial business in Dane County.10

¶51 The circuit court began its oral ruling by saying, “This motion was
brought by the defendant Mt. Morris [and joined] by the defendant Middlesex and
their clients.” The court then explained its determination that “the evidence set forth
in the affidavits with the 559 policies, a million dollars in revenue” showed that
Mt. Morris Mutual does substantial business in Dane County. The court concluded
that Stelling’s choice of venue is proper under WIS. STAT. § 801.50(2)(c).

¶52 The circuit court subsequently issued a written order that references
“the Motion to Change Venue brought by Defendants Mt. Morris [and the Scanlans]
and joined by Defendants Middlesex [and Friede and Dorow]” and concludes that
“based on the materials filed and for the reasons stated on the record, which are
incorporated herein, THE COURT HEREBY ORDERS AS FOLLOWS: The
Defendants’ Motion is DENIED.”

10
Neither Mt. Morris nor the circuit court addressed Stelling’s reference to Middlesex’s
offices in Dane County. In his response brief on appeal, Stelling reiterates his assertion, modified
to reflect an assertion that Sentry has three agency offices in Dane County, and Mt. Morris does
not address that assertion in its reply brief. Stelling’s assertions do not affect our analysis based on
Middlesex’s and Mt. Morris’s failures to present any evidence in the circuit court regarding
business done by Middlesex Insurance and Friede in support of the motion for change of venue
filed by Mt. Morris.

Stelling also presents on appeal additional information purportedly showing that both
Mt. Morris Mutual and Middlesex Insurance Company do substantial business in Dane County.
We do not consider this additional information because it was not presented to the circuit court.
See South Carolina Equip., Inc. v. Sheedy, 120 Wis. 2d 119, 125-26, 353 N.W.2d 63 (Ct. App.
1984) (“An appellate court can only review matters of record in the [circuit] court and cannot
consider new matter attached to an appellate brief outside that record.”); Keplin v. Hardware Mut.
Casualty Co., 24 Wis.2d 319, 326, 129 N.W.2d 321 (1964) (“This court cannot consider facts
outside the record even though stated as such in the briefs.”).

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No. 2022AP536

D. Failure To Show That Venue Is Improper as to Middlesex Insurance and
Friede under WIS. STAT. §§ 801.50(2)(c), 801.51, and 801.53

¶53 As summarized above, WIS. STAT. § 801.51 provides, “Any party may
challenge venue.” The parties do not address whether the term “any party” means
that any party may challenge venue only as to itself or that any party may challenge
venue as to itself and other defendants. Regardless, as also stated above, a challenge
to venue can be successful only if venue is improper as to all defendants. See Boyd,
239 Wis. 646. Thus, to be entitled to a change in venue as a matter of right, each
defendant must show that venue is improper as to itself or instead at least one
defendant must show that venue is improper as to itself and all other defendants.
We now explain why we conclude that, under either scenario, the challenge here
fails because venue is not shown to be improper in Dane County by any party as to
at least two of the non-natural person defendants, Middlesex Insurance and Friede.

¶54 To the extent that WIS. STAT. § 801.51 means that “any party” may
challenge venue only as to that party, there is no challenge to venue as to Middlesex
Insurance and Friede properly before us, for each of the following reasons:
(1) Middlesex was too late in raising its purported challenge to venue in the circuit
court as to Middlesex Insurance and its insured, Friede; (2) Middlesex failed to
present in the circuit court any evidence or argument showing that venue is improper
in Dane County as to Middlesex Insurance and Friede.

¶55 As to the timing of Middlesex’s purported challenge in the circuit
court, WIS. STAT. § 801.51 provides that a party may challenge venue only by filing
a motion for change of venue: “(1) At or before the time the party serves [the
party’s] 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.” Sec. 801.51. Middlesex raised

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No. 2022AP536

improper venue as an affirmative defense in its answer, but did not file a motion at
the initial pleadings stage and made no showing, when it joined Mt. Morris’s motion
one month later, that, despite reasonable diligence, it did not discover the issue at or
before the time it filed its initial pleading. Accordingly, Middlesex “lost” its right
to move for change of venue as to Middlesex Insurance and Friede. See State ex
rel. Sprinkman v. Huiras, 240 Wis. 154, 2 N.W.2d 721 (1942) (if a motion is not
made within the time set in the statute, the right to change venue is “lost”); Bahr v.
Galonski, 80 Wis. 2d 72, 85, 257 N.W.2d 869 (1977) (when change of venue is not
sought until after the statutory period for a change as of right, “any request for a
change at [that] date must, therefore, be addressed to the [circuit] court’s discretion”
under the currently numbered WIS. STAT. § 801.52).

¶56 As to the substance of Middlesex’s purported challenge, the only
evidence in the circuit court regarding Middlesex Insurance and Friede is the alleged
locations of their principal offices. However, we have explained that the location
of the principal office of a non-natural person defendant is not sufficient to show
that venue is improper and that the propriety of venue in these circumstances
depends on where the defendant does substantial business. And Middlesex did not
provide any proof or argument pertaining to the business, if any, done by Middlesex
Insurance and Friede in either the counties where their principal offices are located
or in Dane County, either in support of the motion or at oral argument. Because
Middlesex failed to support the motion filed by Mt. Morris in the circuit court with
proof or argument that venue in Dane County as to Middlesex Insurance and Friede
is improper based on the position that neither does substantial business in Dane
County, the circuit court properly denied the motion as to those defendants. See
WIS. STAT. § 801.53 (circuit court shall decide a motion to change venue “on the

24
No. 2022AP536

basis of proofs submitted by the parties unless the court orders a hearing or oral
argument”).

¶57 For all of these reasons, Middlesex failed to show in the circuit court
that venue in Dane County is improper as to Middlesex Insurance and Friede.

¶58 To the extent that WIS. STAT. § 801.51 may be interpreted to allow
“any party” to challenge venue as to any or all of multiple defendants, the record
summarized above establishes that Mt. Morris also failed to present any proof or
argument in the circuit court in support of the motion to change venue showing that
venue in Dane County is improper as to Middlesex Insurance and Friede. In its brief
filed in the circuit court in support of the motion, Mt. Morris stated only that
Friede’s principal office is in Sauk County, that Middlesex Insurance’s principal
office is in Portage County, and that Middlesex Insurance “knows how much
business it conducts in Dane County.” Mt. Morris presented no evidence or
argument as to the business done by Middlesex Insurance and Friede in Dane
County or in any other county in Wisconsin. Because Mt. Morris failed to support
the motion in the circuit court with proof that venue in Dane County as to Middlesex
Insurance and Friede is improper based on evidence showing that neither does
substantial business in Dane County, the circuit court properly denied the motion as
to those defendants.

¶59 In sum, we conclude that this challenge to venue fails on either of two
alternative bases. First, Middlesex did not timely file a motion to change venue, nor
did it present any evidence or argument to support the motion to change venue filed
by Mt. Morris based on venue in Dane County being improper as to Middlesex
Insurance and Friede. Second, Mt. Morris, in support of that motion, failed to show
that venue in Dane County is improper as to Middlesex Insurance and Friede.

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No. 2022AP536

Accordingly, Mt. Morris cannot prevail in this appeal of the circuit court’s denial of
the motion to change venue under WIS. STAT. § 801.50(2)(c).

E. Failure To Show That Venue Is Improper as to Mt. Morris Mutual under
WIS. STAT. §§ 801.50(2)(c) and 801.53

¶60 We now explain why this appeal also fails as to Mt. Morris Mutual.

¶61 First, we conclude that Mt. Morris Mutual’s holding 559 insurance
policies in force in Dane County and earning revenue of $859,145 in annual
premiums from those policies, based on averments it submitted, constitute business
conducted in Dane County under the definition of “business” provided in Enpro.
Enpro, 171 Wis. 2d at 546. That is, the activity of issuing and earning premiums
on insurance policies constitutes commercial activity directed to the end of selling
insurance policies to customers. This activity necessarily represents continuous
relationships between the customers who have purchased the policies and paid the
annual premiums to Mt. Morris Mutual as the insurer, which takes on ongoing
obligations related to potential claims.

¶62 At oral argument, Mt. Morris argued that this Dane County activity
does not constitute “business” in this context under the reasoning in an Illinois court
opinion. However, we are not bound by non-Wisconsin case law. See Enpro, 171
Wis. 2d at 547 (rejecting the citation of non-Wisconsin cases to show that the
defendant was not doing business under non-Wisconsin venue statutes as neither
binding nor persuasive). And, we are bound by the definition in Enpro of
“business” as that term is used in WIS. STAT. § 801.50(2)(c). Mt. Morris also
contended at oral argument that the Enpro court did not apply that definition to find
whether the activity in that case constituted business. However, the court expressly
determined that the activity in that case did constitute “engaging in business.” Id.

26
No. 2022AP536

at 546. Accordingly, we reject Mt. Morris’s argument that the evidence as to
insurance policies in force and revenue earned in annual premiums from those
policies does not establish that Mt. Morris Mutual was doing business in Dane
County.

¶63 Second, we agree with the circuit court that the evidence of the
number of policies in force in Dane County and the annual revenue from those
policies is sufficient to establish that Mt. Morris Mutual does substantial business
in Dane County within the meaning of WIS. STAT. § 801.50(2)(c). According to
Mt. Morris’s own averments, the 559 policies in force in Dane County constitutes
2.28% of the total of 24,431 policies that Mt. Morris had in force in the 72 counties
in Wisconsin. In terms of number of policies, Dane County ranks 14th highest out
of the 72 counties where Mt. Morris Mutual issues policies in Wisconsin. The
annual revenue from the Dane County policies constitutes 2.6% of Mt. Morris’s
total annual revenue in Wisconsin.

¶64 A key to our analysis is a point that Stelling made at oral argument
regarding the nature of insurance policies, which is that they create clear and
continuing relationships between each insured and the insurer, with obligations for
both sides of each policy that flow from its terms. Each policy represents continuing
commercial activity and here the combined effects of many such insurance
relationships in one county easily amounts to substantial business in Dane County.
In addition, the numbers in Dane County are not “substantial” just because the 13
Wisconsin counties with numbers higher than Dane County would also be counties
where Mt. Morris Mutual does substantial business for purposes of venue. That fact
merely means that, as the statute contemplates, Mt. Morris Mutual is apparently
doing substantial business in more than one county.

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No. 2022AP536

¶65 Mt. Morris appears to argue that the number of its Dane County
policies and the annual revenue from those policies do not meet the “does substantial
business” test because they are purportedly “insignificant” from Mt.Morris
Mutual’s perspective, relative to the business it does statewide, given that the annual
revenue from Dane County policies constitutes 2.6% of Mt. Morris’s total statewide
annual revenue. The initial problem with this factual assertion is that it is not
supported by a statement from Mt. Morris Mutual. Put another way, the assertion
that Mt. Morris Mutual’s business in Dane County is “insignificant” from the
perspective of Mt. Morris Mutual is not taken from an affidavit of a Mt. Morris
Mutual employee. Rather, it is an assertion solely from its counsel. In addition,
that factually unsupported perspective does not refute that the amount of business it
does in Dane County, considered by itself, is substantial; the absolute number is
substantial. Indeed, Mt. Morris acknowledged at oral argument that “a relative
analysis could potentially be rather limiting,” and that policy and revenue numbers
in a given county, considered by themselves, could denote “substantial business”
under WIS. STAT. § 801.50(2)(c).

¶66 Mt. Morris also argues that our conclusion renders the word
“substantial” superfluous because any business in a county, “no matter how slight,”
would be substantial, and that, consequently, any of Wisconsin’s 72 counties in
which Mt. Morris Mutual does business, “no matter how insubstantial,” is a proper
venue. This argument is not tethered to the facts of this case. The number of
policies that Mt. Morris Mutual had in force in Dane County and the annual revenue
from those policies indicate that Mt. Morris Mutual conducts considerable business
in the county sufficient to meet the “does substantial business” test. Those numbers
are not “slight.” See Enpro, 171 Wis. 2d at 552. Whether a smaller number of

28
No. 2022AP536

policies that could have been in force in a county and a lower annual revenue in
premiums from those policies would also meet the test is not before the court.

¶67 We pause to note that the circuit court and this court have been left to
perform the analysis on a limited set of facts. For example, we are lacking evidence
regarding physical contacts such as office space, specific activities of one or more
agents for Mt. Morris Mutual, and the history of Mt. Morris Mutual’s activities in
Dane County. But taking into account the relationships inherent in insurance
policies and the number of policies and amount of premiums here, we conclude that
the circuit court did not err in determining that Mt. Morris Mutual conducts
substantial business in Dane County based on the undisputed evidence that we do
have.

¶68 Mt. Morris argues that the business that Mt. Morris Mutual conducts
in Dane County resembles that of the defendant in a case that discussed personal
jurisdiction, Vermont Yogurt, which is cited in Enpro. See Vermont Yogurt Co. v.
Blanke Baer Fruit & Flavor Co., 107 Wis. 2d 603, 321 N.W.2d 315 (Ct. App.
1982). In Vermont Yogurt, this court determined that the defendant did not conduct
“substantial and not isolated activities” in Wisconsin even though the defendant
generated three percent of its nationwide revenue from activities in Wisconsin. Id.
at 605-06. That case is not applicable. The court in that case did not address the
“does substantial business” test for venue. Rather, the court addressed the
“substantial and not isolated activities” ground for establishing sufficient contacts
to support personal jurisdiction in a case brought by a plaintiff that was a nonresident
of the state against a defendant that was also a nonresident of the state regarding a
cause of action that was not connected to the state. Id. at 612-13. This court noted
that under those circumstances, the standard is higher than a situation in which the
“plaintiff [is] a resident or if the cause of action [is] connected to this state.” Id.

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No. 2022AP536

We tied the Wisconsin share of nationwide sales to the fact that such a share did not
make Wisconsin “one of [the defendant’s] major centers of business.” Id. at 613.
There is nothing in Vermont Yogurt that sets any kind of percentage floor relevant
to the “does substantial business” test under WIS. STAT. § 801.50(2)(c).
Mt. Morris’s argument on this point is merely a variation of its argument, which we
have rejected above, that from Mt. Morris’s perspective regarding its total range of
business the specific amount of business that it does in Dane County is relatively
less significant.

F. Mt. Morris’s Remaining Arguments

¶69 In its appellate briefing and at oral argument, Mt. Morris makes two
arguments that, as we understand them, are intended to refute our conclusion that
the circuit court properly denied the motion to change venue under WIS. STAT.
§ 801.50(2). We address each argument in turn.

¶70 First, Mt. Morris argues in its briefing that the circuit court erred in
not granting the motion to change venue because Stelling did not include in the
complaint factual allegations supporting the position that each of the non-natural
person defendants does substantial business in Dane County. However, we do not
consider this argument further because Mt. Morris has not cited any legal authority
for the proposition that a plaintiff must allege facts supporting venue. See Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d
148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not be
considered, and we will not abandon our neutrality to develop arguments.” (citations
omitted)). Moreover, Mt. Morris disavowed this position at oral argument and
acknowledged that a plaintiff is not required to allege in the complaint facts that
support the choice of venue.

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No. 2022AP536

¶71 Second, Mt. Morris argues that the circuit court erred in not granting
the motion to change venue because Stelling did not offer proof to support its venue
choice but instead relied on Mt. Morris’s evidence to show that Mt. Morris Mutual
does substantial business in Dane County. At oral argument Mt. Morris cited, as it
did in its appellate briefing, a case that reviewed whether a circuit court properly
dismissed a complaint for lack of personal jurisdiction under Wisconsin’s long-arm
statute. Lincoln v. Seawright, 104 Wis. 2d 4, 8-9, 310 N.W.2d 596 (1981). In that
case, our supreme court stated, “The burden is on the plaintiff to establish
jurisdiction under the long-arm statute.” Id. at 9. However, Mt. Morris cites no
legal authority applying that requirement to the context of a challenge to venue, and
at oral argument Mt. Morris acknowledged that it is not aware of any such authority.
Moreover, we observe that this argument is not supported by WIS. STAT. § 801.53,
which provides that motions to change venue “under ss. 801.51 and 801.52 shall be
determined on the basis of proofs submitted by the parties unless the court orders a
hearing or oral argument.” Sec. 801.53. Nothing in this statute bars the circuit court
from relying on the movants’ proof, here as to Mt. Morris Mutual, or on the
movants’ failure to provide proof, here as to Middlesex Insurance and Friede, when
it denied the motion as to all of the moving defendants.

III. FAILURE OF MT. MORRIS’S APPEAL UNDER WIS. STAT. § 801.52

¶72 Having rejected Mt. Morris’s appeal of the circuit court’s denial of the
motion seeking a change of venue as a matter of right under WIS. STAT.
§ 801.50(2)(c), we address its appeal of the denial of the motion for a discretionary
change of venue under WIS. STAT. § 801.52.

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No. 2022AP536

A. Applicable Standard of Review and Legal Principles

¶73 We affirm a change of venue decision absent an erroneous exercise of
discretion. Central Auto Co. v. Reichert, 87 Wis. 2d 9, 15-16, 273 N.W.2d 360 (Ct.
App. 1978); see also State ex rel. West v. Bartow, 2002 WI App 42, ¶10, 250
Wis. 2d 740, 642 N.W.2d 233 (affirming circuit court’s exercise of discretion in
denying motion to change venue). “[A] discretionary determination must be the
product of a rational mental process by which the facts of record and law relied upon
are stated and are considered together for the purpose of achieving a reasoned and
reasonable determination.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d
16 (1981). “Under the erroneous exercise of discretion standard, an appellate court
may affirm the circuit court’s ruling even though the appellate court would not
necessarily reach the same decision independently of the prior decision maker.”
State ex rel. Universal Processing Servs. of Wis., LLC v. Circuit Ct. of Milwaukee
Cnty., 2017 WI 26, ¶86, 374 Wis. 2d 26, 892 N.W.2d 267.

¶74 Whether or not a defendant agrees that a case has been properly
venued under the terms of WIS. STAT. § 801.50(2), the defendant may in either case
seek a discretionary change of venue under WIS. STAT. § 801.52. Salachna, 399
Wis. 2d 759, ¶20; see also § 801.50(6) (“Venue under [s. 801.50] may be changed
under s. 801.52”). WISCONSIN STAT. § 801.52 provides, in pertinent part:

Discretionary change of venue. The 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 ….11

11
The portion of WIS. STAT. § 801.52 not reproduced here concerns specific exceptions to
the discretionary change of venue rule, none of which are relevant to this appeal. WIS. STAT.
§ 801.52.

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No. 2022AP536

Sec. 801.52

¶75 By its terms, the statute requires that, in deciding whether to change
venue, a circuit court must consider the situation before it in light of “the interest of
justice or for the convenience of the parties or witnesses.” WIS. STAT. § 801.52; see
also West, 250 Wis. 2d 740, ¶10 (affirming circuit court’s exercise of discretion
based on considerations of the interest of justice and the convenience of the parties
or witnesses).

¶76 We pause to address Mt. Morris’s apparent argument in its briefing
that, in exercising its discretion under WIS. STAT. § 801.52, a circuit court “must”
consider the following factors pursuant to Littmann v. Littmann, 57 Wis. 2d 238,
245-46, 203 N.W.2d 901 (1973) (quoting Ehrenzweig and Louisell, Jurisdiction in
a Nutshell (2d ed. 1968)):

the ease of access of proof, the availability and cost of
obtaining witnesses, the possibility of harassment of the
defendant in litigating in an inconvenient forum, the
enforceability of the judgment, the burden on the community
in litigating matters not of local concern, and the desirability
of litigating local matters in local courts.

However, as we now explain, Mt. Morris points to nothing in Littmann that either
imposes such a requirement generally or applies specifically to a discretionary
change of venue decision under § 801.52.

¶77 The court in Littmann addressed the factors relevant to a motion to
stay an action pending in a Wisconsin forum to permit the commencement of an
action outside of Wisconsin under WIS. STAT. § 801.63 (then numbered WIS. STAT.
§ 262.19 (1971-72) and renumbered by Supreme Court order dated February 17,
1975). Littmann, 57 Wis. 2d 244-45. The court ruled that the factors that a circuit
court “may” consider are those stated in that statute:

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No. 2022AP536

(a) Amenability to personal jurisdiction in this state
and in any alternative forum of the parties to the action;
(b) Convenience to the parties and witnesses of trial in this
state and in any alternative forum; (c) Differences in conflict
of law rules applicable in this state and in any alternative
forum; or (d) Any other factors having substantial bearing
upon the selection of a convenient, reasonable and fair place
of trial.

Id. at 247. While the court in Littmann cited the factors now quoted by Mt. Morris
in the course of its discussion before addressing § 801.63, the court did not require
that a circuit court consider those factors in applying § 801.63 or any other statute.
Further, the Littmann court did not address the discretionary decision to transfer
venue to another county within Wisconsin under WIS. STAT. § 801.52.

¶78 Both Mt. Morris and Stelling conceded at oral argument that there is
no Wisconsin law that requires a court to consider factors other than those stated in
WIS. STAT. § 801.52. Accordingly, we reject any argument that Mr. Morris may
have intended to make that a circuit court must nevertheless do so.12

B. Circuit Court Decision

¶79 In its oral decision, the circuit court began by summarizing the
statutory standards governing a motion for a discretionary change of venue: “in the
interest of justice or for the convenience of the parties or witnesses.” The court
noted, based on the evidence presented by the parties, that the accident occurred and
the witnesses reside in Sauk County, but that the medical treatment took place and
the medical experts are in Dane County. The court determined that, given these

12
Mt. Morris also suggests in its briefing that the circuit court must consider additional
factors stated in a U.S. Supreme Court case cited in Lau v. Chicago & N.W. Ry. Co., 14 Wis. 2d
329, 336, 111 N.W.2d 158 (1961). However, in Lau our supreme court addressed whether
requiring a non-Wisconsin defendant to defend an action in a Wisconsin court would violate the
defendant’s due process rights. Id. at 333, 335. Lau does not apply here.

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No. 2022AP536

facts, convenience to the parties or witnesses did not favor a change in venue
because: (1) Sauk County and Dane County are “right next to each other,” and
Mt. Morris had not raised any “significant issue … with ease of access to proof”
given the proximity of the two counties; and (2) the only evidence regarding
convenience was that “the cost of sending medical doctors to Sauk County would
weigh in favor of [Stelling.]” As to the interest of justice factor, the court
determined that changing venue “at this stage would preclude [Stelling] from even
considering calling live [medical] witnesses at trial,” and that Mt. Morris made no
argument showing that changing venue to Sauk County from Dane County would
enhance the interest in justice. Accordingly, the court determined that Mt. Morris
failed to meet its burden to show that Stelling’s choice of venue should be disturbed.

C. Analysis

¶80 The record establishes that the circuit court considered the facts
presented by the parties as they relate to the statutory factors of the convenience of
the parties and witnesses and the interest of justice when making its decision. See
WIS. STAT. § 801.52 (stating the statutory factors); see also West, 250 Wis. 2d 740,
¶10 (affirming the circuit court’s exercise of discretion in considering the statutory
factors of the interest of justice and the convenience of the parties and witnesses).
Accordingly, the record establishes that the court “examined the relevant facts,
applied a proper standard of law, and, using a demonstrated rational process,
reached a conclusion that a reasonable judge could reach.” See Loy v. Bunderson,
107 Wis. 2d 400, 415, 320 N.W.2d 175 (1982).

¶81 Mt. Morris argues that it would be “easiest and least expensive” for
all parties if the lawsuit were moved to Sauk County because the persons involved
in the accident and witnesses to the accident reside in Sauk County and the employer

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No. 2022AP536

of one of the drivers is located in Sauk County. Mt. Morris also argues that the
interest of justice would be better served by having a Sauk County jury “evaluat[e]
and reach[] a judgment upon an incident which occurred within its own county.”
These assertions focus on the evidence most favorable to Mt. Morris and essentially
posit that the circuit court should have balanced the facts and the parties’ interests
differently. However, it is not the role of an appellate court to exercise the circuit
court’s discretion. Krier v. EOG Env’t, Inc., 2005 WI App. 256, ¶24, 288 Wis. 2d
623, 707 N.W.2d. 915.

CONCLUSION

¶82 For the reasons stated, we reject Mt. Morris’s challenge to the circuit
court’s denial of the motion to change venue under WIS. STAT. §§ 801.50(2)(c) and
801.52.

By the Court.—Order affirmed and cause remanded for further
proceedings.

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