NO. 94-078
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
PHILLIP N. CARTER,
Plaintiff and Respondent,
v.
JERROLD L. NYE and NYE & MEYER, P.C.,
a Montana professional corporation,
Defendants and Appellants.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Edd Lee, Attorney at Law,
Billings, Montana
For Respondent:
Gene R. Jarussi, Jarussi & Bishop,
Billings, Montana
Submitted on Briefs: June 30, 1994
August 30, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Phillip N. Carter filed a complaint in the Seventh
Judicial District Court in Richland County, against Nye and Meyer,
P.C., and Jerrold L. Nye for malicious prosecution of District
Court Cause No. DV-93-018, Karen Caveny v. Johnston-Will, Inc., a Montana
Corporation, Marlin W. Johnston, Myron A. Johnston, Gregory W. Johnston, Dave A. Johnston,
and Phillip N. Carter. Nye moved for a change of venue and now appeals
the District Court's denial of that motion. We affirm the District
Court.
Our review is limited to the following issue: Did the
District Court correctly deny Nye's motion to change venue to
Yellowstone County?
FACTUAL BACKGROUND
In Richland County District Court Cause No. DV-89-064, Karen
Caveny sued Johnston-Will, Inc., to force a stock buy-back from her
ex-husband's family corporation, or in the alternative, to force
the corporation to liquidate. Jerrold Nye represented Karen Caveny
and Phillip Carter represented Johnston-Will. On the eve of trial,
the parties entered a structured settlement agreement and
stipulated to dismiss the lawsuit.
Caveny alleged that she received the first two installments of
the settlement, but none thereafter. In November 1992, she filed
a motion under the same cause number, DV-89-064, for an order to
show cause why the settlement was not being performed, or in the
alternative, why the stipulation should not be set aside or
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converted into a judgment for the amount due. At a January 5,
1993, hearing, Johnston-Will argued that the show cause order was
improperly before the court and that the court lacked jurisdiction
over Cause No. DV-89-064 because it had been dismissed. The
District Court agreed, dismissed the order to show cause without
prejudice, and granted leave for Caveny to petition to reopen Cause
No. DV-89-064 or to pursue a separate claim for breach of the
settlement agreement.
On February 11, 1993, Jerrold Nye, as attorney for Karen
Caveny, filed a complaint against Johnston-Will, Inc., and Phillip
Carter. The District Court granted summary judgment in favor of
Carter after it found no basis in fact to have named Carter as a
defendant, and dismissed the claim against him with prejudice.
On December 10, 1993, Carter filed this action against Nye and
alleged that Nye instigated and prosecuted the action against him
without probable cause. On December 23, 1993, Nye moved for a
change of venue from Richland County to Yellowstone County. The
District Court denied his motion to change venue in an order filed
February 7, 1994. Nye filed this appeal on February 16, 1994.
Nye argues that Montana does not recognize a tort action for
malicious prosecution against the attorney who filed the underlying
case. However, Nye did not file a Rule 12(b)(6), M.R.Civ.P.,
motion to dismiss for failure to state a claim for which relief may
be granted, nor does the record contain any previous reference to
this issue. It is well-settled that we will not address issues
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raised for the first time on appeal. Hislopv. Cady (1993), 261 Mont.
243, 250, 862 P.2d 388, 392.
Nye further argues that this Court should dismiss the case
against him by issuing a writ of supervisory control or by a
similar exercise of this Court's inherent powers. However, Nye has
not properly invoked these powers, as required under Rule 17,
M.R.App.P., nor has he shown necessity for such extraordinary
remedies. We find Nye's requests for these remedies to be without
merit.
Nye's notice of appeal was limited to the order denying a
change of venue. Our decision is necessarily limited to that
issue. See Rule 4(c), M-R-App.P.i Tefftv.Tefft (1981), 192 Mont. 456,
461, 628 P.2d 1094, 1097 (citing Statev. Todd (1945), 117 Mont. 80,
158 P.2d 299; ~pei%iZg% calfee (1888), 7 Mont. 514, 19 P. 204).
DISCUSSION
The denial or grant of a motion to change venue is a legal
conclusion. Gabrielv. SchoolDist. No. 4, Libby (Mont. 1994), 870 P.2d 1351,
1352, 51 St. Rep. 217, 217. We review conclusions of law to
determine whether the district court correctly applied the law.
Emetyv.FederatedFoods,Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429:
Znreh4aniageofDurbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245.
The cause of action alleged in this case is the tort of
malicious prosecution. The proper place of trial for a tort action
is the county in which the defendant resides or the county where
the tort was committed. Section 25-2-122, MCA. We have held that
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when venue properly lies in two different counties under this
statute, a plaintiff may choose either county. Bradley v. Valmont
Industries, Inc. (1985), 216 Mont. 429, 431, 701 P.2d 997, 998. We have
also held that for purposes of venue "a tort is committed where
there is a concurrence of breach of obligation and the occasion of
damages." BHCHoldingCo. v. Hurly (1990), 242 Mont. 4, 6, 788 P.2d
322, 323 (quoting f+‘halenv.Snell (1983), 205 Mont. 299, 302, 667 P.2d
436, 437).
In an affidavit filed with the District Court, Carter alleged
that his damages occurred in Richland County where he had his
office for the past ten years. Because of the allegations in the
complaint filed against him, he terminated his business
relationship with Johnston-Will, Inc., whom he had served as legal
counsel for several years, and advised them to seek other counsel.
As a result, Carter alleges that he lost income that he would have
continued to receive at his office in Richland County. While we do
not decide whether the damages alleged were actually sustained, the
evidence is uncontroverted that, if sustained, the alleged damages
occurred in Richland County.
For purposes of venue, we must also identify the breach
involved to determine where the tort was committed. Carter alleges
that Nye breached his obligation by filing a lawsuit with malice
and without probable cause. Rye argues that he drafted and signed
the complaint in his office in Yellowstone County and contends that
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any breach necessarily occurred during the "lawyering process,"
which took place at his office.
Nye cites Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312,
688 P.2d 279, and SchutzFossArchitectsv. Campbell (1990), 243 Mont. 194,
793 P.2d 821, in support of his position that when a professional
person is alleged to have committed a tort, the tort necessarily
occurs where the professional provides his or her services.
However, those cases are distinguishable based on their facts.
Rye's argument and emphasis on the "lawyering process" might
have merit if he was defending against a professional negligence
claim. The elements of a malicious prosecution cause of action,
however, require in part, "[a] judicial proceeding commenced
against the party alleging malicious prosecution . . . and damages
suffered by the party alleging malicious prosecution." 0 0 Fallon v.
FarmersInxExch. (1993), 260 Mont. 233, 238, 859 P.2d 1008, 1011. A
judicial proceeding "is commenced by filing a complaint with the
court." Rule 3, M.R.Civ.P. The judicial proceeding in this
instance was commenced against Phillip Carter by a complaint filed
in Richland County.
We conclude that if a breach of obligation occurred, it
occurred when the complaint was filed in Richland County. Because
we also conclude that the alleged damages occurred in the same
county, we hold that venue was proper in Richland County and
conclude that the District Court correctly denied Rye's motion for
change of venue to Yellowstone County.
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The order of the District Court denying defendant's motion for
change of venue is affirmed.
We concur:
Chief Justice
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