No. 89-398
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
BHC HOLDING CO., A Montana Corporation,
Plaintiff and Respondent,
-vs-
ROBERT HURLY,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial ~ ~ i l i c &
In and for the County of Yellowstone, cz
The Honorable G. Todd Baugh, Judge
COUNSEL OF RECORD:
For Appellant:
Peter 0. Maltese, Sidney, Montana
Robert Hurly, Glasgow, Montana
For Respondent:
David A. Veeder and Joseph V. Womack; Veeder &
Broeder, Billings, Montana
Submitted: Nov. 2, 1989
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Defendant, Robert Hurly, appeals from an order of the District
Court of the Thirteenth Judicial District, Yellowstone County,
denying his motion for change of venue. We affirm.
The sole issue raised on appeal is whether the District Court
erred in denying Hurlyls motion for change of venue.
Robert Hurly is an attorney in private practice in Glasgow,
Valley County, Montana. Plaintiff, BHC ~olding Company, is a
Montana corporation with its principal place of business in
Billings, Yellowstone County, Montana. The complaint alleges that
BHC is the successor in interest to the rights and claims of Suburb
Partnership, a Montana general partnership, which owned the
Briarwood project, a housing and country club development located
in Yellowstone County.
BHC1scomplaint stated a claim for legal malpractice, alleging
that Suburb had employed Hurly to represent it in working out its
financial difficulties with the United States Department of Housing
and Urban Development (HUD), which held a mortgage on the Briarwood
subdivision, and First Bank of Billings, which held a mortgage on
the Briarwood country club. BHC claimed, among other things, that
Hurly negligently performed these services and that Hurly breached
his duty by failing to work out suitable agreements with the Bank
and HUD. BHC sought compensatory damages as well as cancellation
of any sums due for legal services and return of all sums
previously paid for such services.
The present case is a companion to an appeal we dealt with in
Hurly v. Studer (Mont. 1988), 761 P.2d 821, 45 St.Rep. 1761
(Studer). In that case, Hurly brought a breach of contract suit
in Valley County against Dean and Ralph Studer and Larry Chouinard
individually, alleging that these defendants were the parties with
whom he had contracted to renegotiate the Briarwood Project loans.
Hurly sought payment for services allegedly due and owing. Like
the present case, Studer concerned a denial of a motion for change
of venue. We remanded the case to the District Court because the
court had not made the initial determination as to the location of
the performance of the contract.
In response to the complaint filed by BHC, Hurly filed various
motions with the Yellowstone County District Court, including a
motion for change of venue to Valley County. The District Court
reserved ruling on the motions pending the outcome of the Studer
appeal and the Valley County District Court's resolution of the
issue on remand. After several months elapsed and the Valley
County Court had not rendered a decision on the matter, the
Yellowstone County Court issued a ruling on the venue question,
holding that venue was proper in Yellowstone County. Hurly
appealed to this Court.
The complaint in the present case states a claim of legal
malpractice, which is a tort. The statute governing venue for
actions based upon tort provides as follows:
The proper place of trial for a tort action is:
(1) the county in which the defendants, or any of them,
reside at the commencement of the action; or
(2) the county where the tort was committed. If the
tort is interrelated with and dependent upon a claim for
breach of contract, the tort was committed, for the
purpose of determining the proper place of trial, in the
county where the contract was to be performed. (Emphasis
added. )
Section 25-2-122, MCA.
!'For the purposes of venue, a tort is committed where there
is a concurrence of breach of obligation and the occasion of
damages." Whalen v. Snell (1983), 205 Mont. 299, 302, 667 P.2d
436, 437. Hurly's obligation in this case was to negotiate a
settlement with the Bank and HUD on behalf of BHC1s predecessor in
interest. The breach, if any, occurred in the county in which
Hurly performed these negotiations.
The District Court found that, even though Hurlyls law office
was located in Valley County, the services he performed for BHC1s
predecessor in interest were not legal services conducted from his
office but negotiation services conducted in Yellowstone County.
Therefore, any negligence that Hurly may have committed occurred
in Yellowstone County. Furthermore, any damages that may have
resulted from Hurlylsalleged breach accrued in Yellowstone County,
the county where the property that was the subject of the
negotiations was located.
The place where the alleged tort was committed was in
Yellowstone County. Therefore, Yellowstone County was the proper
place for trial. The District Court did not err in denying Hurly's
motion for change of venue to Valley County.
Affirmed .
Justice