NO. 87-206
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JOHN L. PETERSEN and MONTANA OIL
& MINERALS COR.PORATION, a Montana
corporation,
Plaintiffs and Respondents,
-VS-
R. G. "RICK" TUCKER, DOUG JAMES, and
ANDREA BENNETT, State Auditor,
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:
Michael J. Mulroney, Helena, Montana
For Respondent:
Karl J. Englund, Missoula, Montana
William A. Rossbach, Missoula, Montana
Submitted on Briefs: July 14, 1987
Decided: September 17, 1987
Filed:
SEP 1 7 1w
0
25kL Clerk
*0-
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendants appeal from an order of the District Court,
Fourth Judicial District, Missoula County, denying their
motion for a change of venue from the District Court in
Missoula County to Lewis and Clark County.
The issue on appeal is whether venue was properly found
in Missoula County.
This case arises out of a cease and desist order issued
to the plaintiffs by the State Auditor's office, Securities
Department. The plaintiffs allege that as a result of the
cease and desist order being issued, they were the object of
tortious conduct and that their civil rights were violated
resulting in injury.
Plaintiffs resided in Missoula County and the defendants
resided in Lewis and Clark County at the time the order was
issued.
Plaintiffs brought this action against the defendants in
Missoula County. Appellants filed a number of motions
including a motion for change of venue to Lewis and Clark
County, and a motion to dismiss the State as a party. On
April 2, 1987, the District Court denied the defendants'
motion for change of venue and did not rule on the motion to
dismiss the State as a party. The defendants appeal from the
District Court order denying their motion for change of
venue. F e find that the District Court was correct in its
J
determination that venue was properly found in Missoula
County.
This Court has addressed the issue of venue on numerous
occasions and the rules regarding venue are well settled and
can be easily discerned by a quick review of the Montana
statutes and Montana case law.
Appellants maintain in their brief that venue should be
changed as the county designated in the respondents
complaint, Missoula County, is not the proper county. The
right of the defendant to move for change of place of trial
is found in S 25-2-114, MCA, which provides:
Right of defendant - - - for change of place of
to move
trial. If an action is brought in acounty not
designated as the proper place of trial, a
defendant may move for a change of place of trial
to a designated county.
Section 25-2-201, MCA, details when a change of venue is
required:
The court or judge must, on motion, change the
place of trial in the following cases:
(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."
Platt v. Sears, Roebuck & Co. (Mont. 1986), 721 P.2d 336, 43
St.Rep. 1160.
Appellants contend that venue should be changed to Lewis
and Clark County as the general rule regarding venue is that
venue is proper in the county where the defendants reside.
Platt v. Sears, Roebuck & Co., supra.
Although the appellants have correctly stated the
general rule, as § 25-2-118, MCA, indicates, the code does
not confer venue exclusively to the county of the defendants'
residence.
The statute controlling venue in actions against the
state, including the instant case is S 25-2-126(1), MCA,
which provides:
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.
The appellants contend that the State is not a proper
party to this action and as such the venue for this
proceeding properly lies in Lewis and Clark County under 5
25-2-118, and 25-2-122, and/or 25-2-125, MCA. Appellants
assert that this Court should dismiss the State as a party in
this action alleging that the question of venue would then
have but one resolution, that being Lewis and Clark County.
This Court will not address the issue of whether the
State is a proper party in this action. We find the record
clear on this point as the State is specifically named in the
respondents' complaint as a party and has not been dismissed
from the action. Venue must be determined on the basis of
the complaint. Johnson v. Clark (1957), 131 Mont. 454, 461,
311 P.2d 772, 776. Further, only the matter of venue can be
disposed of by the reviewing court when dealing with an
appeal from an order granting or denying venue. Conway v.
Fabian (1936), 103 Mont. 574, 63 P.2d 1022. In Guthrie v.
Montana Department of Health and Environmental Sciences
(1977), 172 Mont. 142, 146, 561 P.2d 913, 915, and Ford v.
Montana Department of Fish, Wildlife (Mont. 1984), 676 P.2d
207, 209, 41 St.Rep. 220, 222, this Court cited with approval
Regents of University of California v. Superior Court (Cal.
1970), 476 P.2d 457, 461, in which the California Supreme
Court held:
The underlying purpose of statutory provisions as
to venue for actions against State agencies is to
afford the citizen a forum that is not so distant
and remote that access to it is impractical and
expensive. To that end, such provisions should be
liberally construed in favor of the private
litigant.
This Court in Billings Associated Plumbing v. Emerson
(1977), 172 Mont. 369, 372, 563 P.2d 1123, 1125, held that
venue provisions relating to actions against state agencies
should be liberally construed in favor of private litigants.
Clearly in the instant case venue was properly found in
Missoula County. The plaintiffs are residents of the State
of Montana and the county of their residence is a proper
venue $ 25-2-126(1), MCA; 25-2-115, MCA. As such the
appellants have no right to have the venue changed under §
25-2-201, MCA. The fact that venue would also be proper in
Lewis and Clark County is of no import. In State v. Security
State Bank (1979), 184 Mont. 461, 464, 603 P.2d 681, 683,
this Court held where proper venue has been chosen:
... [tlhe courts are powerless based upon the
residence of the parties, to transfer the cause to
another venue although the other venue itself may
also have been proper for the commencement of the
action.
Appellants point out that in McAlear v. Kasak (Mont. 1987),
731 P.2d 908, 910, 44 St.Rep. 81, 83, this Court stated "[wle
have never held that a plaintiff has an absolute choice of
forum ... where plaintiffs file the action in an improper
county, the defendants may change venue to any proper
county." However, once an action has been filed in a proper
county the District Court cannot grant a motion to have it
removed. Seifert v. Gehle (1958), 133 Mont. 320, 322, 323
P.2d 269, 270.
As we have previously stated, venue was properly found
in Missoula County. The District Court was precluded from
granting the defendants' motion for change of venue and acted
appropriately in denying the motion.
Affirmed.
We Concur:
Justice