No. 85-387
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
LARRY J. WEISS, an incompetent person,
by and through his duly appointed
conservator, DEBORAH A. WEISS; JESSICA
I. WEISS and KRISTIE L. WEISS, minors,
by and through their mother and natural
parent DEBORAH A. WEISS; and DEBORAH A.
WEISS, individually,
Plaintiffs and Respondents,
THE STATE OF MONTANA; THE MONTANA DEPARTMENT
OF HIGHWAYS; GLACIER COUNTY; and BILL BIG
SPRING, FRED R. JOHNSON, and DON KOEPKE, in
their official capacity as GLACIER COUNTY
COMMISSIONERS; and JOHN DOES 1--10,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; William D.
Jacobson, Great Falls, Montana
Kirwan & Barrett; Steve Barrett, Bozeman, Montana
For Respondent:
Goetz, Madden & Dunn; William Madden, Bozeman,
Montana
Regnier, Lewis, Boland & Roberts; James M. Regnier,
Great Falls, Montana
Submitted on Briefs: Oct. 31, 1985
Decided: January 16, 1986
Filed.: JAN 16 1986
...-
fib
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendants Glacier County and Glacier County
Commissioners appeal the June 12, 1985, order of the
Eighteenth Judicial District Court denying defendants' motion
for change of venue. We affirm.
On December 12, 1981, plaintiff Larry Weiss was severely
injured in a one car roll-over accident on Reagan Road in
Glacier County, Montana, and rendered mentally incompetent.
A complaint was filed by Deborah Weiss, Larry's wife,
alleging negligence in the design, construction and
maintenance of the road. The named defendants were the Sta.te
of Montana, the Montana Department of Highways, Glacier
County and its county commissioners in their official
capacity, and other unknown defendants potentially liable to
plaintiffs.
The complaint was filed on December 11, 1-984, in
Gallatin County, the plaintiffs ' pla.ce of residence. On
December 31, 1984, defendants Glacier County and Glacier
County Commissioners filed a motion for change of venue from
Gallatin County to Glacier County, asserting Glacier County
was the proper venue because the alleged tort occurred there
and 5 25-2-106, MCA (1983), requires an action aga.inst a
county or its commissioners to be brought in such county.
The district judge denied the motion, reasoning that venue
was proper a.s to the State defenda.nts therefore venue was
proper as to all defendants.
On appeal, the sole issue is whether the District Court
erred in ruling that Glacier County and its commissioners
could be sued in Gallatin County.
Plaintiffs assert that the 1985 amendments to the venue
provisions of the Montana Code, effective October 1, 1985,
apply to this appeal. We agree.
Section 1-2-109, MCA, provides: "No law contained in
any of the code or other statutes of Montana is retroactive
unless expressly so declared." However, a law is not deemed
retroactive unless it takes away vested rights acquired und-er
existing laws, or creates new duties or attaches a new
disability in respect to transactions already past. Butte &
Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 263,
229 P.2d 730, 733. This Court has previously held that
newly-amended statutes which relate only to procedural
matters and do not affect substantive rights of the parties
do not fall within the scope of S 1-2-109, MCA. See e.g.,
Castles v. State (1980), 187 Mont. 356, 609 P.2d 1223; State
ex rel. Johnson v. District Court (1966), 148 Mont. 22, 417
P.2d 109. A statutory change in venue provisions is wholly
proced-ural and may be applied to pending cases. Denver & Rio
Grande Western Railroad Co. v. Brotherhood of Railroad
Trainmen (1967), 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954.
We find that the 1985 amendments to the venue provisions of
the Montana Code are applicable to this case.
Three sections of the venue provisions in the Montana
Code are implicated by the present case:
25-2-117. Multiple defendants. If there are two
or more defendants in an action, a county that is a
proper place of trial for any defendant is proper
for all defendants, subject to the power of the
court to order separate trials under Rule 42(b) of
the Montana Rules of Civil Procedure. If an action
with two or more defendants is brought in a county
that is not a proper place of trial for any of the
defendants, any defendant may make a motion for
change of place of trial to any county which is a
proper place of trial.
25-2-125. Against public officers or their agents.
The proper place of trial for an action against a
public officer or person specially appointed to
execute his duties for an act done by him in virtue
of his office or against a person who, by his
command or in his aid.,does anything touching the
duties of such officer is the county where the
cause or some part thereof arose.
25-2-126. Against state, county, and political
subdivision. (1) The proper place of trial for an
action against the state is in the county in which
the claim arose or in Lewis and Clark County. In
an action brought by a resident of the state, the
county of his residence is also a proper place of
trial.
(2) The proper place of trial for an action
against a county is that county unless such action
is brought by a county, in which case any county
not a party thereto is also a proper place of
trial.
(3) The proper place of trial for an action
against a political subdivision is in the county in
which the claim arose or in any county where the
political subdivision is located.
Defendants assert that S$ 25-2-125 and -126(2), VCA,
require the action to be brought in Glacier County as that is
where the alleged tort occurred, and that is the location of
the county being sued. Plaintiffs assert that 5. 25-2-117,
MCA, is controlling, and that where venue is proper as to the
State, venue is also proper for Glacier County and its
commissioners. We agree with plaintiffs' interpretation of
the venue provisions.
The 1985 amendments to the venue provisions eliminated
use of the words "may," "shall," or "must," which had spawned
endless litigation, and inserted the term "the proper place
of trial" to clarify the venue statutes. See Exhibit No. 1,
Senate Judiciary Committee Minutes, January 22, 1985.
Section 25-2-117, MCA, concerning proper venue for multiple
defendants, is new to the Montana Code. The explanatory
comment to this section prepared by the Montana Supreme Court
Commission on the Rules of Evidence reads in part:
This proposed section does not change existing law
or establish any new principle. Like the other new
provisions it simply tries to codify existing case
law (although, in this instance, cases are neither
plentiful nor clear-cut) so that all the
fundamental principles will be gathered together in
one place and stated as plainly as possible.
- We believe that
Id. $j 25-2-117, MCA, is intended to apply to
all venue provisions, including the provisions relating to
suits against counties and public officials.
P r e v i o u s l y , t h i s C o u r t h a s h e l d t h a t t h e venue s t a t u t e
for s u i t s against counties, f o r m e r l y S 2-9-312 ( 2 ) , MCA, does
n o t a b s o l u t e l y b a r a p r i v a t e l i t i g a n t from s u i n g a c o u n t y i n
a d i f f e r e n t county. I n Hutchinson v. Moran (Mont. 1 9 8 3 ) , 6 7 3
P.2d 818, 40 St.Rep. 2081; and State ex rel. Montana
Deaconess H o s p i t a l v . Park County (1963) , 1 4 2 Mont. 26, 381
P.2d 297, we held that where two counties are necessary
p a r t i e s t o an a c t i o n a p l a i n t i f f may e l e c t t o f i l e s u i t i n
e i t h e r county, and n e i t h e r county h a s grounds t o o b j e c t t o
venue. An analogous s i t u a t i o n i s p r e s e n t i n t h e c a s e a t b a r .
We f i n d t h a t t h e d i s t r i c t j u d g e ' s d e n i a l o f change o f venue
is c o n s i s t e n t with S 25-2-117, MCA, which states that an
a c t i o n may be b r o u g h t i n any county where venue i s p r o p e r and
o t h e r d e f e n d a n t s j o i n e d though venue o t h e r w i s e would n o t 1-ie
against those defendants.
Affirmed.
W concur:
e