NO. 92-501
IN THE SUPREME COURT OF THE STATE OF MONTANA
1333
BRETT DEPEE, JANET DEPEE, and
BITTERROOT VALLEY BANK,
Plaintiffs and Respondents,
-v-
FIRST CITIZEN'S BANK OF BUTTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presidinq:
COUNSEL OF RECORD:
For Appellant:
J. Richard Orizotti, Poore, Roth & Robinson,
Butte, Montana
For Respondent:
Dan G. Cederberg, Missoula, Montana;
Judith A. Loring, Stevensville, Montana
Submitted on Briefs: February 25, 1993
Decided: May 11, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the Twenty-First (formerly Fourth)
Judicial District Court, Ravalli County, denying defendant's motion
for change of venue. We affirm.
We consider the following issue on appeal:
Did the District Court err in denying defendant's motion for
change of venue from Ravalli County to Butte-Silver Bow County?
Brett and Janet Depee (Depees) are residents of Stevensville
in Ravalli County. In October of 1990, the Depees entered into an
agreement with Better Homes of Montana (Better Homes) to purchase
a 1983 Venture mobile home. The contract called for Better Homes
to deliver, set up, block and level the mobile home at the Depees'
residence in Stevensville.
The contract for sale of the mobile home was conditioned on
the approval of financing by Bitterroot Valley Rank (Bitterroot
Bank). Bitterroot Bank is located in Lolo, Missoula County. First
Citizen's Bank of Butte (First Bank) held a lien upon the mobile
home in question. Upon agreement with Depees, Bitterroot Bank Vice
President Rich Zins (Zins) contacted First Bank and asked if the
First Bank would release its lien and, if so, where payment for the
mobile home should be delivered. First Bank stated that the check
from Bitterroot Bank should go directly to Better Homes and that
the lien would be released in the normal course of business.
Bitterroot Bank contends that it would not have loaned the money to
the Depees unless the Bank had agreed to release the lien.
On or about October 19, 1990, Bitterroot Bank sent Better
Homes a check for the purchase price of the mobile home. The
mobile home was subsequently delivered to the Depees and they moved
into it in November of 1990. Subsequently, Better Homes went out
of business. Following the mobile home's delivery, First Bank
attempted to have title isstled to the mobile home based upon
repossession. An affidavit of repossession was issued on June 4,
1991, stating that First Bank had actual possession of the mobile
home. According to First Bank, Better Homes had been required to
deliver a negotiable certificate of title on the mobile home to
First Bank. When Better Homes paid the debt owed on the mobile
home, First Bank would release the certificate of title.
Depees and Bitterroot Bank subsequently filed suit against
First Bank regarding the encumbered title to the mobile home. The
suit was filed in Ravalli County and contains charges of wrongful
conversion, breach of agreement, breach of statutory duty to file
a satisfaction of a chattel mortgage, wrongful repossession of the
mobile home, breach of an obligation of good faith and fraud.
The Bank then filed a motion for change of venue to Butte-
Silver Bow County where it maintains its principal place of
business. A hearing was held on May 20, 1992, and on July 20,
1992, the court issued an order denying the Bank's request for
change of venue.
Did the District Court err in denying defendant's motion for
change of venue from Ravalli County to Butte-Silver Bow County?
First Bank argues that the general rule of law governing venue
is that venue is proper in the county where the defendant resides.
According to First Bank, none of the statutory exceptions to this
general rule apply under the facts of this case: the tort claims
and contract claims are not appropriate in Ravalli County. First
Bank contends that the action is only proper in Butte-Silver Bow
County, where First Bank has its principal place of business.
The Depees argue that if Ravalli County is a proper county,
the court cannot change venue to another proper county. According
to the Depees, Ravalli County is appropriate because the underlying
contract was to be performed in Ravalli County. Further, all torts
alleged by the Depees spring from this contract and are so
interrelated with it that Ravalli County is appropriate.
The record on appeal of venue is limited and contains only the
complaint, an affidavit and the transcript of the venue hearing.
The action revolves around two agreements, one of which is a
written purchase agreement made between the Depees and Better
Homes. The purchase agreement for the mobile home had a condition
precedent, A condition precedent is a condition which must be met
before the agreement becomes effective. Westmont Tractor Co. v.
Viking Exploration, Inc. (D.C. Mont. 1982), 543 F.Supp. 1314. The
purchase agreement states expressly that the sale is conditioned on
the approval of financing by Bitterroot Valley Bank.
A second agreement exists within the facts of this case and
that is the oral agreement between First Bank and Bitterroot Bank.
In that agreement, First Bank agreed to release its lien on the
Depees mobile home, which had been floor financed to Better Homes,
when Better Homes paid the amount owed on the home. First Bank
agreed in a telephone conversation that the lien would be released
so that Bitterroot Bank could maintain the security interest on the
mobile home. Bitterroot Bank officer, Zins, testified that he
would not have loaned the $12,500 to the Depees unless First Bank
agreed to release its lien.
Montana's venue statute governing contract actions is 5 25-2-
121, MCA. This section of the code provides that venue for
contract actions is proper in either the county in which the
defendant resides or the county in which the contract is to be
performed. Section 25-2-121(1), MCA. See also, Missouri-Stone v.
Barber Seed (Mont. 1992), 49 St. Rep. 1139. According to this
statute, the county where the contract is to be performed, if no
place is named, is the county in which, by necessary implication
from the terms of the contract, considerins all of the obliqations
of all parties at the time of its execution, the principal activity
was to take place. Section 25-2-121(l) (b)(ii), MCA. [Emphasis
added.] The particular county must be clear from the express terms
of the contract or by necessary implication from the contract
terms. Berlin v Boedecker (1989), 235 Mont. 443, 767 Mont. 349.
.
The first contract, the purchase agreement, does not specify
where the goods are to be delivered. It states that the mobile
home is to be delivered, set up, blocked and leveled by Better
Homes personnel. The purchase agreement lists the Depeess address
in Ravalli County. By fsnecessary implication" the county of
principal activity is where the mobile home was to be set up, and
in fact was set up.
The second agreement between First Bank and Bitterroot Bank
would have Ravalli County as its place of principal activity also.
Although First Bank officer Beck testified that had First Bank been
paid for the mobile home, it would have released the title to the
dealer, Better Homes, that title would have eventually been sent to
Bitterroot Bank. That is particularly so since Better Homes went
out of business shortly after the Depees bought the mobile home.
In addition, subsection (2)(a) of 5 25-2-121, MCA, lists
specifically that the proper county for contracts for the sale of
property or goods is to be where the goods are to be delivered.
The "goods" under the purchase contract were delivered, set up,
blocked and leveled in Ravalli County. Ravalli County was
obviously the county where the principal activity of both
contracts, and the place where the "goods" from the first contract
were delivered.
First Bank claims that it was not a party to the purchase
agreement. Such argument is irrelevant. First Bank was a party to
the second agreement and the principal place of activity on that
agreement would have been Ravalli County.
The Depees do not have a cause of action outside of the
purchase agreement. Every claim, every activity at issue by all
four parties, stems from this purchase agreement. Even the tort
claims, which the Bank argues were not founded in this initial
contract, are directly tied to the initial purchase agreement or
the agreement between First Bank and Bitterroot Bank. Our statutes
provide that where tort claims are so interrelated with the
contract action, the site of venue which is appropriate for the
contract action is appropriate for the tort claims also. Section
25-2-122, MCA.
We conclude that under both contracts at issue in this case,
Ravalli County is proper venue. Therefore, a change of venue is
not proper under Montana's venue statutes because the plaintiffs
filed in a proper county. We hold that the District Court did not
err in concluding that Ravalli County was a proper county for venue
and in denying the Bank's motion for change of venue.
Af finned.
We Concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Defendant was entitled to be sued in the county of its
residence unless it was a party to a contract to be performed in
some other county. In reasoning which adds a new twist to the
rules of venue, the majority holds that since some other contract
to which defendant was not a party was to be performed in Ravalli
County, defendant is somehow subject to suit in Ravalli County
Plaintiffs filed a complaint against defendant in Ravalli
County alleging six causes of action. Count No. 2 was the only
cause of action based on contract. It alleged that:
XXVI .
First Citizen's, through its agent Beck agreed to
release its lien against the mobile home and allow title
to the mobile home to be transferred to Depees free and
clear of its lien on payment of Twelve Thousand Five
Hundred and No/100 Dollars ($12,500.00) to Better Homes
plus allowance for a trade-in and down payment.
First Citizen's breached its agreement to release
its lien against the mobile home by failing to release
its lien after payment in full was received.
There was no written agreement which formed the basis for
plaintiffs' complaint, and according to the allegations of the
complaint, there was no place of performance specified in the
alleged oral agreement. In Berlin v. Boedecker (1989), 235 Mont . 443,
444-45, 767 P.2d 349, 350, we held under similar circumstances
that:
"The general rule governing venue of any civil action is
that the action shall be tried in the county in which the
defendant resides." Whalenv.Snell (1983), 205 Mont. 299,
301, 667 P.2d 436, 437; see also 5 25-2-118(1), MCA. A
plaintiff also may choose to bring a contract action in
the county where a contract was to be performed. section
25-2-121!1) (b), MCA; Hardeabu~hv~Hardenbuqh (1944), 115
Mont. 469, 146 P.2d 151. However, this performance
exception applies only if the plaintiff clearly shows
that the contracting parties mutually agreed at the time
they entered the contract that the contract was to be
performed in a particular county other than that of
defendant's residence. The particular county must be
clear from the express terms of the contract or by
necessary implication from the contract terms. Annon v.
S e a t (1973), 162 Mont. 262, 264, 511 P.2d 8, 9.
twr
Since there was no specified place of performance in this
contract, and since the place of performance was not clear from the
express allegations in plaintiffs' complaint, the place for venue,
according to Berlin, was the place of defendant's residence.
However, if that general rule of venue is not sufficient, certainly
the uncontroverted testimony in this case was sufficient to
establish that the place of performance for the contract between
Bitterroot Valley Bank and First Citizen's Bank was a place other
than Ravalli County.
The only testimony given regarding the place of First
Citizen's Bank's performance was given by the vice president in
charge of loans from Bitterroot Valley Bank. He testified as
follows:
Q. Okay. Now you allege that there was an agreement
with First Citizen's Bank: is that correct?
A. I don't believe that is correct.
Q. Okay. There was no agreement -- you had no
agreement with First Citizen's Bank, is that right,
in this case?
A. My agreements, I guess, with First Citizen's Bank
were -- if you'd like me to tell the whole scenario
now, I can.
Q. I would just like to have you answer the question.
Do you contend you had an agreement in this case
with First Citizen's Bank?
A. I guess I would, yes,
Q. Okay. And was that agreement that First Citizen's
Bank would, which you contend, First Citizen's Bank
would release the title to this mobile home?
A. That is correct.
Q. And to whom would First Citizen's Bank release the
title to the mobile home?
A. I was told by Robert Beck at First Citizen's State
Bank of Butte that normal course of business, that
he would send the title to the mobile home dealer.
Q. Okay. Who was the mobile home dealer in this case
in which the --Mr. and Mrs. Depee purchased the
home from.
A. Better Homes of Montana.
Q. Where is that place of business?
A. Out by the airport near Missoula.
Q. In Missoula County?
A. In Missoula County.
The majority points out that there were two separate
agreements. There was a written purchase agreement between the
mobile home dealer and the purchasers, Brett Depee and Janet Depee.
However, defendant First Citizen's Bank was clearly not a party to
that agreement. The second agreement alleged is the agreement
between First Citizen's Bank and Bitterroot Valley Bank. However,
according to the uncontroverted testimony of Bitterroot Valley
Bank's own vice president, all of First Citizen's Bank's duties
pursuant to that agreement were to be performed in Missoula County.
The fact that Better Homes, once it received the title from First
Citizen's Bank, might have eventually sent it to Ravalli County
pursuant to a separate agreement is irrelevant to the issue of
proper venue for enforcement of the contract between Bitterroot
Valley Bank and First Citizen's Bank.
Furthermore, 5 25-2-121(2)(a), MCA, which pertains to proper
venue within which to enforce contracts for the sale of property or
goods, is irrelevant to the issue of proper venue for the suit
against First Citizen's Bank. First Citizen's Bank was not a party
to any contract for the sale and delivery of property or goods.
Because Ravalli County was not the proper venue for suit on
plaintiffs* claim for breach of contract, all of plaintiffsv claims
should have been transferred to Silver Bow County pursuant to
defendant's motion for change of venue. Section 25-2-116, MCA,
provides that:
In an action involving two or more claims for which
this part designates more than one as a proper place of
trial, a party entitled to a change of place of trial on
any claim is entitled to a change of place of trial on
the entire action, subject to the power of the court to
separate claims or issues for trial under Rule 42(b) of
the Montana Rules of Civil Procedure.
The majority has, in effect, held that because one of the
plaintiffs had a contract with a mobile home dealer, who is not a
party to this lawsuit, wherein the mobile home dealer agreed to
deliver a mobile home in Ravalli County, the defendant bank, which
was not a party to that contract and had nothing to say concerning
its terms, is subject to suit in Ravalli County. This is, indeed,
an interesting and novel approach to venue. If the average
practitioner was not previously confused by this Court's decisions
regarding venue, he or she should be now.
Periodically, the Legislature attempts to codify our decisions
regarding venue in order to simplify the rules of venue for
practicing attorneys. The next time the Legislature attempts to do
so it will be interesting to see how it explains this decision.
For the above reasons, I dissent from the opinion of the
majority. I would reverse the District Court and order that venue
be transferred to Silver Bow County.
Justice Karla M. Gray joins in the foregoing dissent.
May 11, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
J. Richard Orizotti
Poore, Roth & Robinson
1341 Harrison Ave.
Butte, MT 59701
Dan G. Cederberg
Attorney at Law
201 W. Main, 310 Central Square
Missoula, MT 59802
Judith A. Loring
Attorney at Law
P.O. Box 4
Stevensville, MT 59870
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANAA .