NO. 88-157
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
MONTANA WHOLESALE ACCOUNTS SERVICE,
Plaintiff and Respondent,
-VS-
JAY PENINGTON, d/b/a PENINGTON PLACE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Emmons and Coder; Robert J. Emmons, Great Falls,
Montana
For Respondent :
Terry L. Seiffert, Billings, Montana
Submitted on Briefs: June 16, 1988
Decided: July 19, 1988
Filed: l"fi~191988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from an order of the District Court,
Thirteenth Judicial District, Yellowstone County, denying
appellant's motion for change of venue. We affirm.
Appellant Penington presents two issues on appeal.
1. Did the District Court abuse its discretion in
denying Penington's December 23, 1987 motion for change of
venue?
2. Is Penington entitled to attorney fees associated
with this appeal?
The appellant contracted with Epcon Sign Company (Epcon)
to purchase and install certain signs as part of the
renovation of a building called Penington Place located in
Great Falls. Epcon's main office is located in Yellowstone
County but Penington dealt only with the Great Falls office
and its manager. Epcon installed the signs but problems
arose and Penington defaulted on the two sale agreements.
Epcon assigned its right to the respondent, Montana Wholesale
Accounts Service (Montana Wholesale), who commenced this suit
in Yellowstone County pursuant to a venue clause in the
agreements. The clause states as follows:
In the event it should become necessary for EPCON
to bring suit for payments or to enforce any other
rights under this agreement, venue may be laid in
Yellowstone County, Montana at EPCON'S option.
Penington filed a motion for a change of venue based on
S 25-2-121, MCA, which places venue for actions upon
contracts. This motion was denied. Penington then filed a
motion to change venue for the convenience of witnesses as
allowed by 5 25-2-201 (3), MCA. This motion was also denied
and it is from this order that Penington appeals.
Penington argues that the facts of this case cannot
support the District Court's decision to leave venue in
Yellowstone County because three of four possible witnesses
are in Cascade County and the property subject of the
contracts is located there also. He argues that an abuse of
discretion occurs if the evidence does not show an even
balance of convenience for the witnesses.
This Court has held that contractual stipulations to
venue are not against the public policy of this state and are
authorized by 5 25-2-202, MCA. Electrical Products
Consolidated v. Bodell (1957), 132 Mont. 243, 247, 316 P.2d
788, 790. When faced with such a provision the Court must
place venue in the stipulated county when requested by the
parties. Section 25-2-202, MCA. We do not mean this to say
a stipulation removes the discretion of the court to change
venue when the convenience of witnesses and the ends of
justice require it. Section 25-2-201, MCA, states:
The court or judge must, on motion, change the
place of trial in the following cases:
(3) when the convenience of witnesses and the ends
of justice would be promoted by the change.
However, an agreement to place venue in a particular county
is a most important factor for the court to consider. Given
the court's wide discretion under 25-2-201(3), MCA, see
Letford v. Kraus (1983), 206 Mont. 493, 496-97, 672 P.2d 265,
267, we will not disturb the court's decision in absence of
clear evidence of abuse of that discretion. Brown v. First
Federal Savings & Loan Assn. (1964), 144 Mont. 149, 156, 394
P. 2d 1017, 1021. Since the parties agreed to place venue in
Yellowstone County should a dispute on the contracts arise
and the plaintiff's main office and office manager are
located there, we hold that the District Court did not abuse
its discretion in refusing to grant Penington's motions under
§ 25-2-201 ( 3 ) , MCA.
Appellant Penington next asks that this Court award him
attorney fees for this appeal because Montana Wholesale was
dissolved at the time it filed its complaint and therefore
was not a legal entity making the suit frivolous.
Having disposed of appellant's first issue in favor of
respondent, we need not address the issue of attorney fees.
Affirmed.
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Justices