NO. 92-329
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
I.S.C. DISTRIBUTORS, INC.,
a Montana corporation,
Plaintiff and Respondent,
MIKE TREVOR; DAVE MARSKALL; RON HEILMAN;
BRUCE SWICK; RON ARMSTRONG; SHARON
RANSTROM; DEBBIE OWEN; SHERRY HANKS;
TERRY KRAMER; ROGER FUCHS; SCOTT FIGG;
STEVEN BAILEY; JOHN DOES I THROUGH X and
JANE DOES I THROUGH X, individually and
in their representative capacity as
employees 03 the State of Montana,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
F o r Appellants:
Chris D. Tweeten, Hughes, Kellner,
Sullivan & Alke, Helena, Montana
For Respondent:
Michael E. Wheat, Cok & Wheat,
Bozeman, Montana
Submitted on Briefs: January 28, 1993
Decided: July 29, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendants appeal from an order of the ~istrictCourt of the
Eighteenth Judicial District, all at in County, which denied
defendants' motion to change venue to Lewis and Clark County. We
af f im.
There are three issues on appeal:
1. Did the District Court commit reversible error when it
adopted verbatim an order drafted by plaintiff which denied
defendants1 motion to change venue?
2. Did the District Court err when it considered an
affidavit submitted by plaintiff subsequent to the time when
defendants filed their motion to change venue?
3. Did the District Court err when it determined that venue
is proper in Gallatin County pursuant to !j 25-2-125, MCA?
In September 1990, plaintiff 1.S.C. Distributors, Inc.,
submitted a sealed proposal to the Montana Department of
Administration (the Department) to sell computer equipment to the
Department. In June 1992, the Purchasing Division of the
Department awarded contracts to three vendors other than plaintiff.
On September 25, 1991, plaintiff filed a complaint against ten
state employees (defendants) who worked for the Department and were
involved in the decision to deny plaintiff's bid. Plaintiff sought
damages and injunctive relief pursuant to 42 U.S.C. 5 1983 (1871)
(amended 1979) and state common law, Plaintiff alleged that the
named defendants unlawfully changed the date for submission of
proposals, illegally considered evaluation criteria which were not
set forth in the request for proposals, and acted arbitrarily when
they awarded the contract to vendors other than plaintiff.
Plaintiff filed the complaint in Gallatin County. All of the
individuals named in the complaint resided elsewhere.
On November 27, 1991, defendants moved to change venue to
Lewis and Clark County. They asserted that Gallatin County was not
a proper place for trial because plaintiff's claim arose in Lewis
and Clark County and none of the defendants resided in Gallatin
County. On December 5, 1991, defendants filed an affidavit by Mike
Trevor, the Administrator of the Department and a defendant in
plaintiff's action. Affiant Trevor testified that none of the
actions in plaintiff's complaint occurred in Gallatin County.
On February 4, 1992, before the District Court ruled on
defendants' motion to change venue, plaintiff amended its complaint
to add two defendants who resided in Gallatin County. On
February 12, 1992, plaintiff filed an affidavit of its chief
executive officer, Scott Johnson. Johnson testifiedthat, contrary
to Trevor's assertion, events occurred in Gallatin County which
contributed to defendants' decision to deny plaintiff's proposal.
According to Johnson, plaintiff had provided Montana State
University, which is located in Gallatin County, with computer
equipment in conjunction with its last contract with the State; and
Department staff went to MSU to test and evaluate some of the
computer equipment that plaintiff had provided to the University in
order to make its decision whether to award or deny plaintiff a
contract.
3
On May 11, 1992, the District Court held a hearing on
defendants' motion to change venue and the parties presented oral
argument. At the close of the hearing, in the presence of both
parties and their counsel, the court denied defendants1 motion and
asked plaintiff to prepare a written memorandum and order for the
court's signature. Plaintiff did so, and the District Court signed
the order on May 22, 1992. Defendants appeal.
I
Did the District Court commit reversible error when it adopted
verbatim an order drafted by plaintiff which denied defendants'
motion to change venue?
Defendants assert that the District Court committed reversible
error when it entered its decision to deny defendants' venue motion
by adopting verbatim a proposed opinion drafted by plaintiff. We
disagree.
Rule 52(a), M.R.Civ.P., requires that when a court grants a
motion under Rule 12 or 56, the court shall support its order with
an explanation of its reasons. There is no comparable requirement
for orders denying motions to change venue.
Because a district court is at liberty to deny a venue motion
with or without comment, the court did not err when it (1) chose to
provide an explanation for why defendants' motion was denied, and
(2) directed plaintiff to prepare an appropriate memorandum and
order for the court to sign. Furthermore, the court's order will
be reviewed based on the facts alleged in the complaint as applied
to our common law and statutory venue rules. The presence of the
additional memo does not affect the nature of our review, and
therefore, was not prejudicial to defendants. We hold that the
District Court's adoption of the verbatim memo was not reversible
error.
II
Did the District Court err when it considered an affidavit
submitted by plaintiff subsequent to the time when defendants filed
their motion to change venue?
Defendants assert that plaintiff's original complaint did not
establish that any part of plaintiff's action arose in Gallatin
County. Defendants contend that when determining whether venue was
proper in Gallatin County, the District Court improperly considered
plaintiff's amended complaint and Johnson's affidavit. Defendants
rely on Johnson v. Clark (1957), 131 Mont. 454, 311 P.2d 772, in
support of their contention that Montana case law prohibits the
consideration of matters other than the original complaint when
determining whether venue is proper.
Plaintiff responds that Hopkins v. Scottie Homes, Inc. (1979), 180
Mont. 498, 501, 591 P.2d 230, 232, allows the district court to
rely upon the facts of an affidavit filed subsequent to the
original complaint when ruling on a motion to change venue.
In Johnson, this Court held that a change in place of trial
must be determined by the conditions existing at the time the
parties claiming it first appeared in the action, and the
subsequent filing of an amended complaint by plaintiff shall have
no effect on defendants1 pending motion to change venue. Johnson,
311 P.2d at 779. In Hopkins, this Court modified its holding in
Johnson and determined that the court may properly consider facts
set forth in affidavits which are filed subsequent to the original
complaint when ruling on a motion to change venue. Hopkins, 591
P.2d at 232. The consideration of facts in an affidavit is not
prejudicial to a party moving for a change of venue.
These rules are not contradictory; together they simply
mandate that, in fairness to the party moving for change of venue,
the lower court may not consider an amended complaint for purposes
of determining whether to grant or deny a venue motion; however,
the court may look to affidavits submitted subsequent to the
original complaint. Accordingly, it was proper for the District
Court in this case to consider Johnson's affidavit when determining
whether to grant or deny defendants1 motion.
I11
Did the District Court err when it determined that venue is
proper in Gallatin County pursuant to § 25-2-125, MCA?
The named defendants in plaintiff's first complaint were all
employees of the Montana Department of Administration, and
therefore, they were all state officials. Accordingly, 5 25-2-125,
MCA, which pertains to actions against public officers, is the
statute that governs this case. Section 25-2-125, MCA, provides:
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
6
anything touching the duties of such officer is the
county where the cause or some part thereof arose.
[Emphasis added.]
Defendants recognize that 5 25-2-125, MCA, is the controlling
statute in this case; however, they assert that the court
improperly interpreted this statute when it determined that a part
of plaintiff's claim arose in Gallatin County.
Defendants contend that their decision to deny plaintiff's
proposal occurred in Lewis and Clark County, and therefore,
plaintiff's suit against them arose in Lewis and Clark County.
They assert that there was no evidence presented to the lower court
that any part of their alleged lrwrongful
actu occurred in Gallatin
County. Therefore, the court erred when it found that a part of
plaintiff's claim arose in Gallatin County for purposes of
establishing venue.
In Ford v Depament of Fish, Wildlife and Parks
. ( 1984) , 2 08 Mont . 132,
676 P.2d 207, the plaintiff sought a writ of mandamus challenging
an agency decision to demote and transfer him. This Court held
that although the decision to demote and transfer the plaintiff was
made in Lewis and Clark County, Missoula County was a proper place
for trial under 5 25-2-105, MCA (now recodified at 5 25-2-125,
MCA), because the position of employment, to which plaintiff
claimed he was entitled and from which he was to be demoted, was in
Missoula. Therefore, at least a part of the cause of action arose
in Missoula County. In Ford, 676 P.2d at 210, we stated:
It is not the mandamus aspect of the case, but the fact
that the challenged state action concerns and will affect
a person and a position in Missoula that controls here.
It is not the mere making of the order, but the place
where it is put in operation, that determines where the
cause of action arose.
Similarly, in this case, it is not only the decision to award
the contract, but the place where the effect of the decision is
felt, which must also be considered.
Johnson's affidavit, together with the original complaint,
established that at least some part of plaintiff's claim arose in
Gallatin County. Johnson's affidavit established that, although
defendants' decision to award the contract to sell computer
equipment occurred in Lewis and Clark County, the testing and
evaluation of equipment in conjunction with the contract awards was
undertaken at Montana State University, which is located in
Gallatin County. Furthermore, the original complaint established
that plaintiff's principal place of business is in Gallatin County.
Both the affidavit and the original complaint state that plaintiff
suffered damages to its business as a result of the State
employees1 decision. Finally, Johnsonlsaffidavit established that
if plaintiff had been awarded the State contract at issue, some of
the goods that would have been purchased from plaintiff under the
contract would have been delivered in Gallatin County.
We conclude that the alleged wrongful conduct by defendants in
this case concerns, and will have an impact on, Gallatin County.
Therefore, some part of plaintiff's cause of action arose in
Gallatin County.
We hold that Gallatin County is a proper venue pursuant to
5 25-2-125, MCA, and our prior decision in Ford. Accordingly, the
District Court did not err when it denied defendantst motion to
change venue to Lewis and Clark County.
We concur:
Chief Justice
Justice Karla M. Gray dissenting:
I dissent. Section 25-2-125, MCA, provides that venue for an
action against a public officer or his agent is "the county where
the cause or some part thereof arose." A line of cases prior to
Ford established that, under this standard, a cause arises in the
county in which the defendants committed the wrongful acts which
create the right to sue. See, e.g., Lunt v. Division of Workmen's
Comp. Dept. of Lab. & I. (1975), 167 Mont. 251, 537 P.2d 1080;
Bergin v. Temple (1941), 111 Mont. 539, 547, 111 P.2d 286, 289-90.
In 1984, this Court decided Ford. In that case, there were
two applicable venue statutes because there were multiple
defendants. Concluding that it was necessary to harmonize the
venue statutes, this Court extended the meaning of "where the cause
or some part thereof arose" to include where the decision at issue
was "put in operation." Ford
I 676 P.2d at 210. However,
following the enactment of § 25-2-115, MCA, in 1985, it is no
longer necessary to harmonize venue statutes if more than one
applies. Now, if two venue statutes apply, the plaintiff can
choose from any venue proper under either statute.
The majority's opinion in this case stretches the language of
5 25-2-125, MCA, beyond recognition. "The county where the cause
or some part thereof arose" now includes the county where the
"effect of the decision is felt." This sweeping interpretation
nullifies the legislature's intent to place venue where the public
officer or his agent performs the acts giving rise to the cause of
action. It is particularly egregious here, where the defendants
all worked in Helena and their conduct in reviewing the proposals
and determining which proposals would be accepted occurred in Lewis
and Clark County.
In the absence of the need to harmonize, I would return to the
reasonable and workable interpretation of 5 25-2-125, MCA,
established in the line of cases preceding Ford. Therefore, I
would reverse the District Court and direct it to grant the motion
for change of venue.
Chief Justice J. A. Turnage:
I concur in the dissent of Justice Gray.
July 29, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
CHRIS D. TWEETEN
Hughes, Kellner, Sullivan & Alke
P.O. Box 1166
Helena. MT 59624-1 166
Michael E. Wheat
COK & WHEAT
P.O. Box 1105
108 West Babcock
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STAIROF MONTANA
BY:
Depu