NO. 94-442
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
MICHAEL D. MORAN,
Plaintiff and Appellant,
v.
GRAHAM JACKSON, individually, and
AMCO Building Systems, Inc.,
a Montana corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew M. Bittker, Attorney at Law,
Kalispell, Montana
For Respondents:
Kathleen O'Rourke-Mullins, Sullivan
& Tabaracci, Missoula, Montana
Submitted on Briefs: April 11, 1995
Decided: June 19, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Michael D. Moran, filed a complaint in the
District Court for the Eleventh Judicial District in Flathead
County, in which he named Graham Jackson and AMCO Building Systems,
Inc., as defendants. The bases for his complaint were the
defendants' alleged breach of contract, negligence, breach of
warranty, fraud, and misrepresentation. The District court
concluded that pursuant to the parties' contract proper venue for
Moran's claims was in Missoula County, and dismissed Moran's
complaint. Moran appeals the order of the District Court dated
May 12, 1994. We affirm in part and reverse in part.
The following issues are raised on appeal:
1. Did the District Court err when it refused to enjoin
defendants from bringing a foreclosure action?
2. Did the District Court err when it concluded that
pursuant to the parties' contract, the proper venue for the claims
raised by the plaintiff was in Missoula County?
3. Did the District Court err when it dismissed plaintiff's
complaint based on its conclusion that venue was proper in Missoula
County?
4. Was it an abuse of process for defendants to commence
their foreclosure action in Missoula County while plaintiff's claim
was still pending in Flathead County?
FACTUAL BACKGROUND
On February 26, 1993, Moran filed a complaint against Graham
Jackson and AMCO Building Systems, Inc. His complaint was based on
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a contract between himself and the defendants for real property
improvements in Flathead County. He alleged that the defendants
had breached their building contract with him, that they performed
their responsibilities pursuant to that contract negligently and
recklessly, that they breached their warranties to him, that they
misrepresented their qualifications to him, and that as a result of
these actions, he had sustained damages. On March 5, 1993, Moran
filed an application for a preliminary injunction and an enparte
temporary restraining order in which he asked that the defendants
be prevented from transferring the promissory note he had signed,
and from taking any action to enforce the note. The District Court
granted Moran's request for an exparte temporary restraining order
on March 31, 1993. Defendants disqualified District Judge
Michael H. Keedy, and Judge Ted 0. Lympus assumed jurisdiction. On
August 13, 1993, the District Court modified the exparte temporary
restraining order. It enjoined defendants from transferring the
promissory note, but dissolved all other aspects of the order.
On August 19, 1993, defendants filed a motion to dismiss
Moran's complaint. On May 12, 1994, the District Court granted
defendants' motion to dismiss based on its conclusion that pursuant
to the parties' contract, venue was proper in Missoula County.
Prior to the District Court's dismissal of Moran's complaint,
defendants had already filed a complaint in the District Court for
the County of Missoula to enforce the promissory note between them
and Moran.
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ISSUE 1
Did the District Court err when it refused to enjoin
defendants from bringing a foreclosure action?
Moran contends that the District Court erred when it refused
to continue that part of the temporary restraining order which
enjoined the defendants from commencing any action to enforce the
promissory note which had been executed by the parties. He
contends that had the District Court enjoined the Missoula County
action, the issues raised by his complaint in Flathead County, and
the foreclosure action commenced by the defendants in Missoula
County could have been resolved in one action and that multiplicity
of litigation could have been avoided.
The allowance of a preliminary injunction is vested
in the discretion of the District Court, the exercise of
which the Supreme Court will not interfere with except in
instances of manifest abuse. Porter v. K & S Partnership ( 19 8 I ) ,
[192 Mont. 175,] 627 P.Zd 836. In reviewing this
discretion, the question is whether the trial court
acted, 'I [Alrbitrarily without the employment of
conscientious judgment or exceedted the bounds of
reason, in view of all the circumstances, ignoring
recognized principles resulting substantial
injustice." In Re the Marriage of Jermuson v. Jer%son ( 19 7 9 ) , 181
Mont. 97 at 100, 592 P.2d 491 at 493; citing Porterv.Porter
(1970), 155 Mont. 451, 473 P.2d 538.
Smith v. Ravalli County Bd ofHealth (X984), 209 Mont. 292, 295, 679 P.2d
1249, 1251.
In this case, because we affirm the transfer of venue from
Flathead County to Missoula County, and because the Missoula County
District Court has the authority to consolidate plaintiff's
complaint and defendants' complaint, multiplicity of litigation can
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be avoided without the preliminary injunction sought by Moran.
Therefore, we conclude that the District Court did not abuse its
discretion, and we affirm the District Court's refusal to enjoin
defendants from commencing any action to enforce the promissory
note executed by them and Moran.
ISSUE 2
Did the District Court err when it concluded that pursuant to
the parties' contract, the proper venue for the claims raised by
the plaintiff was in Missoula County?
Moran contends that the District Court erred when it concluded
that venue was proper in Missoula County. He contends that
pursuant to §§ 25-2-121(b), -123, MCA, Flathead County was the
proper venue for his complaint because that is the location where
his contract with the defendants was to be performed, and because
his complaint was for damage to real property. He also contends
that pursuant to § 25-2-201(3), MCA, venue, even if proper in
Missoula County, should be transferred to Flathead County to
promote convenience of witnesses and the ends of justice.
However, paragraph eight of Moran's contract with the
defendants provides that "[iIf any suit or action is commenced,
Purchaser agrees that the venue of said action shall be in Missoula
County, Montana, and further agrees to pay AMCO a reasonable
attorney's fee therein." In Montana Wholesale Accounts Y. P ington (1988),
233 Mont. 72, 758 P.2d 759, we held that contractual stipulations
for venue in the event of a contract dispute do not violate the
public policy of this state, and are in fact authorized by
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§ 25-2-202, MCA. We further held that when faced with a motion to
change venue from the county agreed upon by the parties for the
convenience of witnesses or to promote the ends of justice pursuant
to § 25-2-201, MCA, the district court's decision will not be
disturbed in the absence of clear evidence of abuse of that
discretion. Penington, 758 P.2d at 760. Based on the record before
us, we conclude that the District Court did not abuse its
discretion when it concluded that the proper venue for Moran's
complaint was Missoula County.
ISSUE 3
Did the District Court err when it dismissed plaintiff's
complaint based on its conclusion that venue was proper in Missoula
County?
We review a district court's conclusions regarding venue to
determine whether they are correct. State v. Pegasus Gold Corp. (Mont.
1995), 889 P.2d 1197, 1199, 52 St. Rep. 64, 65 (citing Carterv. Nye
(1994), 266 Mont. 226, 228, 879 P.2d 729, 730).
Section 25-2-112, MCA, provides that "[tlhe designation of a
county . . . as a proper place of trial is not jurisdictional and
does not prohibit the trial of any cause in any court of this state
having jurisdiction."
Section 25-2-201(l), MCA, states that when the county
designated in the complaint is not the proper county, the court
must, on motion, change the place of trial. There is no provision
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for dismissal of an action over which the district court has
jurisdiction because venue is more appropriate in another county.
We conclude that the District Court erred when it dismissed
Moran's complaint based on its conclusion that the proper venue was
in Missoula County. That part of the District Court's order is
reversed. Based on its conclusion, which we have affirmed, that
venue is proper in Missoula County, the District Court should,
after remand of this matter, transfer Moran's complaint to the
District Court for the Fourth Judicial District in Missoula County.
As a related issue, Moran contends that the defendants waived
any right they had to move for a change of venue by not making that
motion at the time of their initial appearances, as required by
Rule 12(b) (i) and (ii), M.R.Civ.P. However, we conclude that the
time of either defendant's initial appearance is anything but clear
based on the record in this case, and therefore, hold that the
District Court did not abuse its discretion when it concluded that
defendants moved for a change of venue at the time of their initial
appearance.
ISSUE 4
Was it an abuse of process for defendants to commence their
foreclosure action in Missoula County while plaintiff's claim was
still pending in Flathead County?
Based on our decision in Leasing, Inc. v. DiscoverySkiCorp. (1988) , 235
Mont. 133, 765 P.2d 176, Moran contends that the defendants'
commencement of an action in Missoula County while this action was
still pending was an abuse of process. However, the facts in Leasing,
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Inc. , are distinguishable from those in this case. The contract
between the parties in that case actually provided that the place
of performance was in the county where the initial suit was
brought. We held that the second suit was an abuse of process, not
because the first suit was pending, but because bringing it at a
different location was contrary to the terms of the contract that
the parties sought to enforce. The reason for our conclusion is
plain from the concluding paragraph of that decision where we held
that:
Nonetheless, Discovery, with full knowledge of the
pending Lewis and Clark County District Court suit by
Leasing, filed an action against Leasing, in the Justice
Court of Granite County. This was an attempt by
Discovery to thwart the plain provisions of the written
contract, and a use of the court system to accomplish
that goal. Such action constituted an abuse of process.
Brault y. Smith (19841, 209 Mont. 21, 28-29, 679 P.2d 236,
240.
Leasing, Inc., 765 P.2d at 178.
For these reasons, we conclude that, based on the facts in
this case, the defendants' commencement of a second action in
Missoula County was not an abuse of process
The order of the District Court, except for its dismissal of
Moran's complaint, is affirmed. This case is remanded to the
District Court for further action consistent with this opinion,
including transfer of Moran's complaint to the District Court for
the Fourth Judicial District in Missoula County, Montana.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
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precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur:
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