No. 83-153
I N THE SUPREME COURT OF THE STATE O F MONTANA
1983
DAVID J. LETFORD AND DEBORAH R. LETFORD,
P l a i n t i f f s and R e s p o n d e n t s ,
-VS-
WILBERT KRAUS AND V I V I A N L . KPAUS,
D e f e n d a n t s and A p p e l l a n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G r a n i t e ,
T h e H o n o r a b l e R o b e r t J. B o y d , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellants:
R e x P a l m e r , M i s s o u l a , Plontana
F o r Respondents:
J. A l l e n B r a d s h a w , Philipsburg, Yontana
S u b m i t t e d on B r i e f s : July 21, 1983
Decided: November 15, 1 9 8 3
Filed:
-&%,b --
Clerk
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Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant sellers of real property in Granite County
appeal from a Granite County District Court order denyinq
their request for a change of venue to Missoula County.
Plaintiffs purchased the real property from the defendants
and the sole issue for trial is whether defendants breached
their warranty to deliver the property without defects. We
affirm and hold that venue is proper in Granite County.
The buyers, David and Deborah Letford, filed suit in
Granite County against the sellers, Wilbert and Vivian Kraus,
alleging a breach of warranty in failing to deliver real
property free of defects, the real property being in Granite
County. At the time suit was filed, the buyers were
residents of Granite County and the sellers were residents of
Missoula County. The defendant sellers moved on three
grounds to have the trial changed to Missoula County. First
they alleged that, as residents, they were entitled under
section 25-2-108, MCA, to be sued in the county of their
residence. Second, they alleged that the contract was to be
performed in Missoula County. Third, they alleged that
convenience of witnesses required a change of venue to
Missoula County.
We hold that the trial court properly found the contract
was to be performed in Granite County, which, under section
25-2-101, MCA, defeats the right of the sellers to be sued in
their county of residence. We further hold that the trial
court properly exercised its discretion in holding that the
convenience of witnesses did not require a change of venue to
Missoula County.
The record indicates that the real estate deal for
property located in Granite County was closed in Missoula
County and that payments under the contract for deed were
paid into an escrow account in Missoula. However, when the
buyers filed this action, all payments under the contract had
been made, and the sellers acknowledged this fact. The
buyers' complaint deals solely with the issue of whether the
house had a defective fireplace and sewer system.
Sometime after taking possession of the house in 1981,
the buyers allegedly experienced problems with the fireplace
and sewer system. The pa.rties agreed that the fireplace
needed some work, and arrangements were made for the escrow
agent to set aside $2,850 of the purchase money to repair the
fireplace. The buyers then ha-d the fireplace and. sewer
system repaired but allege that their personal outlay for the
repairs exceeded the $2,850 in the escrow account by
$12,231.69. The buyers therefore seek $12,231.69 as damages.
The sellers present essentially two issues on appeal.
First, they argue that under the general statutory rule,
venue is proper in Missoula County because that is where they
reside. Sellers agree that suits on contracts may be brought
in the county where the contract is to be performed,
regardless of where defendant resides. Sellers argue,
however, that the contract here was to be performed in
Missoula County, not Granite County as alleged by buyers, and
therefore venue remains proper in Missou1.a County. Second,
sellers argue that the trial court abused its discretion in
denying their request for a change of venue when sellers
presented "uncontradicted" evidence that hardship and
inconvenience would result to sellers a.nd their witnesses if
the ca.se was tried in Granite County.
Subject to the specific exceptions provided in sections
25-2-101 through -107, MCA, the statutory rule in Montana is
that a defendant is entitled to be sued in the county where
he resides. That general rule is set out in section
25-2-108, MCA, which provides that "In all other cases . . ."
(not specificall-y dealt with in sections 25-2-101 through
-107, MCA), the action shall be tried in the county where
defendant resides. Section 25-2-101, MCA, however, provides
a specific exception in suits on contracts. That section
gives the plaintiff a choice to bring the action on the
contract in the county where the contract was to be
performed, regardless of where defendant resides. Buyers in
this case are entitled to try the case in Granite County if
the contract in question was to be performed there. Payment
of monies was only part of the performance. The gravamen of
buyers' complaint is whether sellers have performed by
delivering the property in Granite County defect-free. The
issue has nothing to do with the payments in Missoula.
We have held that where there is no clear expression on
the face of the contract, the place of performance can be
indicated by "necessary impli.cation." LaForest v. Ronald
Leland and Company (1-977),171 Mont. 518, 559 P.2d 1177. The
real property in question is located in Granite County.
Assuming, as alleged, that sellers were to perform by
delivering the property defect-free, the fact that the
property is located in Granite County necessarily implies
that performance by delivery would take place in that county.
Therefore, buyers are entitled under section 25-2-101, MCA,
to bring this action in Granite County.
Sellers also argue that under section 25-2-201(3), MCA,
the trial court was required to grant their request for a
change of venue to Missoula County because the
"uncontradicted" evidence showed a trial in Granite County
would inconvenience them and their witnesses. Sellers
presented the testimony of seller, Wilbert Kraus, and
affidavits of prospective witnesses to show that travel to
and from Granite County would disrupt their work schedules
and jeopardize their employment. However, the trial court
has wide discretion under section 25-2-201(3), MCA, to
determine whether the evidence warrants a change of venue.
Being familiar with the geographic distances between the
counties, the trial court here determined that sellers and
their witnesses would not be greatly inconvenienced by trying
the case in Granite County and refused to move the action to
Missoula County.
We believe the trial court was correct in determining
that venue is proper in Granite County, despite the testimony
of Kraus and the affidavits of defense witnesses, and the
failure of the trial court to hear evidence from the buyers
contesting the motion. Sellers ' evidence went
"uncontradicted" because the trial court refused defendants'
motion without hearing evidence from plaintiffs. Sel-lers
were not prejudiced by the failure of the trial court to hear
defendants' evidence contesting the motion. Further, in
cases involving real property, the location of the property
is an important factor in determining proper venue, and the
trial court relied heavily on this fact. The complaint
alleges breach of warranty to deliver defect-free real
property in Granite County. The trier of fact must determine
whether the property was in fact defective and may desire to
visually inspect the property regarding repairs and
modifications. Any visual inspection would have to be in
Granite County and that fact militates against changing venue
for purposes of the sellers' convenience. We hold that the
trial court did not abuse its discretion in refusing to grant
sellers' motion under section 25-2-201(3), MCA.
We briefly comment on the trial court's denial of the
sellers' motion without hearing evidence from the buyers who
contested the motion for change of venue. While this
procedure did not prejudice the buyers here, it is
conceivable that an appeal where only part of the evidence is
heard would require this Court to remand the case so that the
other side could present their evidence. This procedure
could well result in a double appeal on a preliminary
question of a change of venue, and we therefore recommend
that in the future all the evidence be presented before the
trial court rules.
The order of the trial court keeping venue in Granite
County is affirmed.
We Concur:
? L w J L s 9 , w
Chief Justvce