No. 86-114
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF LAKE COUNTY'S
OBLIGATION FOR OPERATING COSTS OF
THE FOURTH JUDICIAL DISTRICT,
MISSOULA, COUNTY,
Plaintiff and Respondent,
MICHAEL HUTCHIN, HAROLD FITZNER,
and DON PETERSON, in their official
capacities as Lake County Commissioners,
and LAKE COUNTY, a political subdivision
of the State of Montana,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Frederick, County Attorney, Polson, Montana
For Respondent:
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana
Submitted on Briefs: May 30, 1986
Decided: August 25, 1986
AUG 2 t. 1986
Filed:
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The Lake County Commissioners and Lake County appeal an
order from the Missoula County District Court denying their
motion for a change of venue. We reverse and remand with an
instruction to the District Court to change the place of
trial to the First Judicial District, Lewis and Clark County.
On August 9, 1985, the Missoula County District Court
issued an order commanding the Lake County Commissioners
within thirty days to pay Missoula County for court expenses
Lake County had incurred in Missoula County or to appear and
show cause why the payment had not been made.
Lake County responded on September 12, 1985, by
petitioning this Court for a writ of supervisory control or
other appropriate order halting any further action in
Missoula County District Court until Missoula County "files a
proper pleading in a correct court and commences lawful
process." This Court denied the writ as inappropriate at the
time .
Missoula County's motion to intervene as plaintiff was
granted by the District Court on September 20, 1985, after
Lake County failed to appear at the hearing scheduled on the
motion. The complaint attached to that motion alleges two
claims for relief. The first claim requests a writ of
mandamus ordering the Lake County Commissioners to reimburse
Missoula County for certain court expenses. The second claim
requests damages against Lake County and the Commissioners
for breach of an implied contract.
Lake County and the Commissioners then moved for a
change o f venue which t h e D i s t r i c t C o u r t d e n i e d on December
11, 1985. They a p p e a l from t h e d e n i a l o f t h e i r motion f o r a
change o f venue.
Lake County first argues that B 25-2-126 ( 2 ) , MCA,
e x c l u d e s Missoula County a s a p r o p e r p l a c e f o r t r i a l . That
section states:
The p r o p e r p l a c e o f t r i a l f o r a n a c t i o n a g a i n s t a
county i s t h a t county u n l e s s such a c t i o n i s brought
by a c o u n t y , i n which c a s e any c o u n t y n o t a p a r t y
t h e r e t o i s a l s o a proper place of t r i a l .
T h i s language e x c l u d e s a c o u n t y which i s a p l a i n t i f f i n t h e
a c t i o n from b e i n g a p r o p e r p l a c e f o r t r i a l . Here, M i s s o u l a
County intervened as a plaintiff in the action and,
t h e r e f o r e , i s not a proper place f o r t r i a l .
Missoula County a r g u e s t h a t under B 25-2-125, MCA, it i s
a proper place of trial for the claims against the Lake
County Commissioners and t h e r e f o r e Lake County c a n n o t change
venue. Section 25-2-125, MCA, states that " [ t ]h e proper
place of t r i a l f o r an a c t i o n a g a i n s t a p u b l i c o f f i c e r . . .
i s t h e county where t h e c a u s e o r some p a r t t h e r e o f a r o s e . "
I n McGrath v. Dore ( 1 9 7 8 ) , 177 Mont. 178, 180, 580 P.2d 1385,
1386, t h i s Court h e l d that a mandamus a c t i o n b a s e d on an
o f f i c i a l ' s f a i l u r e t o pay wages a l l e g e d l y due a r i s e s i n t h e
c o u n t y "where t h e p u b l i c o f f i c i a l , whose a c t t h e p e t i t i o n e r
s e e k s t o compel, r e s i d e s . " C i t i n g G u t h r i e v . Mont. Dept. of
H. and E. S c i e n c e s ( 1 9 7 7 ) , 172 Mont. 1 4 2 , 148, 561 P.2d 913,
916, t h i s Court f u r t h e r n o t e d t h e p u b l i c o f f i c i a l ' s r e s i d e n c e
"is at that place where he officially refuses to act or
neglects t o act." McGrath, 580 P.2d a t 1386. Although t h e
statute has been amended, along with the other statutes on
venue, since interpreted in McGrath, the revisions have not
changed its meaning. Here, the Lake County Commissioners
reside in, and refused or neglected to act in, Lake County.
Section 25-2-125, MCA, supports Lake County, rather than
Missoula County, as the proper place for trial.
Ford v. Mont. Dept. of Fish, Wildlife (Mont. 1984), 676
P.2d 207, 209, 41 St.Rep. 220, 222, stated that the general
rule enunciated in McGrath and other cases was not absolute
and "should not be used to circumvent the goal of providing a
forum which is practical and convenient for the plaintiff .I
'
This Court's intent in Ford was to allow the private citizen
a forum which was not so expensive and remote as to render
access impractical. Missoula County is not a private citizen
and Lake County is neither so remote nor expensive as to be
an impractical forum. Contrary to Missoula County's
contention, Ford does not require that venue remain with that
county.
Missoula County's reliance on 5 25-2-121, MCA, as
establishing that county as a proper place of trial is
misplaced. That statute covers the venue rule for actions on
a contract and states that the proper place of trial is
either the defendant's residence or the county where the
contract was to be performed. Where no place of performance
is specified, the proper place of trial is the county in
which the principal activity was to take place, considering
the parties' obligations and what is necessarily implied from
the contract terms. Subsection 2 establishes venue for
specific types of contracts. In this case the action is
based on an implied contract, for which the terms and the
obligations of the parties are not established. There are no
facts from which to determine the principal place of
performance of the alleged contract. Section 25-2-121, MCA,
offers no assistance in determining the proper place of
trial.
Section 25-2-201, MCA, requires the court, on motion, to
change the place of trial;
(1) when the county designated in the complaint is
not the proper county;
(2) when there is reason to believe that an
impartial trial cannot be had therein;
( 3 ) when the convenience of witnesses and the ends
of justice would be promoted by the change.
As explained above, there are no grounds for allowing
Missoula County, designated in the complaint, to be the place
of trial. The question now is where the trial should be
held.
Although Lake County and its Commissioners argue that
Lake County is a proper place of trial, there are grounds for
a reasonable person to believe that an impartial trial cannot
be had there any more than in Missoula County. The Missoula
County District Court initiated the action against its
neighbor, Lake County. The mandamus and contract actions
brought by Missoula County allege that district court
expenses were paid by Missoula County for transcripts and
judicial decisions in cases filed in Lake County. At the
times these expenses are claimed to have occurred, Lake
County and Missoula County were part of the same judicial
district. Considering the nature of this controversy and the
parties involved, neither county is a proper place of trial.
Therefore, to permit both parties an impartial trial,
the District Court's order is reversed and that court is
directed to enter an order changing the place of trial to the
First Judicial District, Lewis and Clark County.
We concur: /
Justices
Mr. Justice Frank B. Morrison, Jr., dissenting:
I dissent.
This dissent first addresses the question of whether the
Lake County Commissioners can properly be sued in Missoula
County. If they can then cS 25-2-117, MCA, (1985) provides
for the joinder of Lake County in such an action.
This is a mandamus action against the county
commissioners. Such an action cannot be brought against the
county. Therefore, the applicable statute is S 25-2-125,
MCA, (1985), which provides:
The proper place of trial for an action against a
public officer. . .
is the county where the cause
or some part thereof arose.
Parts of this cause of action arose in both counties.
The failure to pay arose in Lake County. On the other hand
the services rendered by Missoula County, for which
compensation is sought, were all rendered in Missoula County.
The District Court could properly have found venue in either
county. The statute specifically provides that any county is
the proper place of trial where a part of the cause of action
arose. Under such language the trial judge, Honorable James
B. Wheelis, was entitled to place the venue in either county
and chose Missoula County.
We have here a "King Solomon" decision. The statutes
are ignored. The majority apparently feels that justice
demands that neither Missoula County nor Lake County
entertain this action and that the citizens of Lewis and
Clark County are better equipped to dispense justice
impartially.
Venue is provided for by the statutes. The statutes
clearly provide that venue for an action involving public
officials is in any county where part of the cause of action
arose. Judge Wheelis, in conformity with applicable
statutes, set venue in Missoula County. No abuse of
discretion has been shown. The trial) court's ruling should
he affirmed.