No. 03-637
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 188
GUANG XIANG LIANG,
Plaintiff and Appellant,
v.
GERRI LAI a.k.a JERRY LAI a.k.a. JERRY LEI
and PING LAI a.k.a. PING LEI d.b.a. GENKI JAPANESE
RESTAURANT; GERRI LAI a.ka. JERRY LAI a.k.a.
JERRY LEI AND PING LAI a.k.a., PING LEI d.b.a.
NEW ASIA RESTAURANT; GENKI JAPANESE
RESTAURANT; and NEW ASIA RESTAURANT
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DV 15-2003-145A
The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Maxwell G. Battle, Jr., Carey Leisure & Battle, Whitefish, Montana
For Respondents:
John R. Gordon, Spoon Gordon & McHugh P.C., Raymond P. Tipp, Esq.,
Tipp & Buley, Missoula, Montana
Submitted on Briefs: March 16, 2004
Decided: July 20, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Guang Xiang Liang (“Liang”) filed this case in Flathead County for damages resulting
from a slip and fall occurring in that county. He also made claims for unpaid wages and
wage and hour laws violations which he alleges occurred both in Flathead and Sanders
Counties. The District Court granted a Motion for Change of Venue filed by Gerri Lai, Ping
Lai, Genki Japanese Restaurant, and New Asia Restaurant (“Lai”) from the Eleventh Judicial
District, Flathead County, to the Twentieth Judicial District, Sanders County, based on Gerri
Lai’s claim of residency in Sanders County. Liang appeals. We reverse.
ISSUE
¶2 Did the District Court err when it granted Lai’s Motion to Change Venue from
Flathead to Sanders County?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Liang filed an eleven-count Amended Complaint in the Eleventh Judicial District,
Flathead County, in which he alleged that he was hired by Gerri Lai to work at the Genki
Japanese Restaurant (“Genki”) in Kalispell, Flathead County. Liang alleged that he worked
at Genki from September 9, 2002, until October 21, 2002, at which time his employment was
transferred to the New Asia Restaurant (“New Asia”) in Thompson Falls, Sanders County.
Both establishments are owned by Gerri Lai and Ping Lai. Liang worked at New Asia from
October 22, 2002, until January 13, 2003.
¶4 In the Amended Complaint, Liang alleged that he suffered injuries as a result of a slip
and fall accident at Genki that was caused by Lai’s negligent failure to maintain Genki in a
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safe condition. Liang further alleged among other things, that, at both Genki and New Asia,
Lai failed to pay his wages and benefits in a timely fashion; failed to pay overtime wages;
failed to pay minimum wage rates; that Lai dealt with Liang in bad faith; and that Liang
suffered various damages as a result.
¶5 Lai filed a Motion for Change of Venue to Sanders County, which is where defendant
Gerri Lai resides. The District Court granted the venue change. Liang timely appeals.
STANDARD OF REVIEW
¶6 Whether a county is a proper place for trial is a question of law involving the
application of the venue statutes to pleaded facts. Wentz v. Montana Power Co. (1996), 280
Mont. 14, 17, 928 P.2d 237, 238 (citations omitted). Thus, our review of the trial court’s
grant or denial of a motion for change of venue is plenary; we simply determine whether the
court’s ruling was legally correct. Wentz, 280 Mont. at 17, 928 P.2d at 238 (citations
omitted).
DISCUSSION
¶7 Liang argues that, as the plaintiff in a multi-count Amended Complaint where venue
is proper in more than one county, he may choose to file the entire cause of action in any
county in which venue is proper for any one count. Liang claims that he chose to file his
Amended Complaint in Flathead County, because that is where most of the alleged activities
occurred, and that, as Flathead County was a proper venue for some of the counts, the
District Court erred when it granted Lai’s Motion to Change Venue to Sanders County.
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¶8 Of the eleven counts in his Amended Complaint, Liang notes that seven counts are
torts or “statutory torts” alleged to have been committed in Flathead County--thus making
Flathead County the proper venue for those counts--while three counts (as well as a fourth
count, Count VIII, which is not discussed in his brief) are alleged to have been committed
in Sanders County--thus making it, also, an appropriate venue for the Amended Complaint.
¶9 Liang argues that pursuant to § 25-2-122(1)(b), MCA, the proper venue for a tort
claim is the county in which the tort allegedly was committed. He further argues that, when
a venue chosen by a plaintiff is a proper venue, the defendant is not entitled to a change of
venue, even if the defendant’s preferred venue is also a proper venue. While Liang concedes
that venue would also be proper in Sanders County, he claims that our case law supports the
proposition that, where two or more causes of action are joined in a single complaint where
venue for each cause is proper in different counties, the plaintiff may choose any county in
which venue is proper for either action. (Citing Wentz, 280 Mont. at 22-23, 928 P.2d at
242.) Liang further claims, pursuant to § 25-2-117, MCA, that where there are multiple
defendants, venue is proper for all defendants in any county in which venue is proper as to
any one of them. Thus, Liang argues, Flathead County is a proper venue, and while Lai’s
preferred venue of Sanders County is also proper, the District Court erred in granting Lai’s
Motion to Change Venue because under Montana law, a properly-selected venue chosen by
the plaintiff cannot be changed by the defendant.
¶10 Lai argues that defendant Gerri Lai was a resident of Sanders County on the day Liang
filed the Amended Complaint, and that § 25-2-118, MCA, recognizes a fundamental rule that
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a defendant has the right to have a trial in his home county. The plaintiff’s ability to select
a forum, Lai argues, does not trump the fundamental rule. Furthermore, Lai argues, a
defendant is allowed a change of venue if he is entitled to do so whenever there are multiple
claims. In particular, he notes, Gerri Lai is entitled to have the Title 39 wage claims heard
in his home county. Neither party addresses where defendant Ping Lai resides.
¶11 Lai claims that Liang overlooks the fact that the “tort rule” of § 25-2-122, MCA, is
“only a permissive alternative to ‘the most fundamental of all venue rules’ which is that a
defendant has a right to have the trial in the county of his residence.” Lai argues that the
legislative changes made to § 25-2-118, MCA, in 1985 and 1997 indicate that the legislature
intended that a defendant’s right to have a trial in his home county would trump the “tort
rule” of § 25-2-122, MCA.
¶12 Lai further argues that Liang does not cite any authority for his argument that some
of the counts within his Amended Complaint are “statutory torts.” Finally, Lai argues that
a party entitled to a change of venue on one count of a multi-count complaint is entitled to
a change of venue on the entire action. Therefore, Lai argues that he is entitled to a change
of venue on some of the counts in the Amended Complaint and thus must be granted a
change of venue for the entire action.
¶13 A defendant may move for a change of venue when an action is brought in a county
which is not statutorily designated as a proper place for trial. Section 25-2-114, MCA. A
district court must grant such a motion if the county in which the action is filed is not a
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proper place for trial. Section 25-2-201(1), MCA. In granting Lai’s Motion to Change
Venue, the District Court reasoned that,
§ 25-2-122(1), M.C.A., provides that the proper place of trial for a tort action
is either the county of the defendant’s residence or the county where the tort
allegedly occurred. . . . [A]fter the 1985 amendment, it was held that either
county was a proper county and if the complaint was filed in either county it
could not be moved. . . . However, in 1997, § 25-2-118, M.C.A., was again
amended [and] the former introductory clause that read: “Unless otherwise
specified in this part” [was deleted]. That would appear to be a legislative
directive that the fundamental venue rule was being reinstated without
qualification? – that a defendant is entitled to have trial in his county of
residence. This appears to over-ride the alternative county provisions of § 25-
2-122(1), M.C.A.
¶14 Section 25-2-118, MCA (2001), states in pertinent part,
(1) . . . the proper place of trial for all civil actions is the county in which the
defendants or any of them reside at the commencement of the action. (2) If
none of the defendants reside in the state, the proper place of trial for a
contract action is as provided in 25-2-121(1)(b) or (2) and the proper place of
trial for a tort action is as provided in 25-2-122(2) or (3).
¶15 In his Amended Complaint, Liang alleged that he suffered injuries in a slip and fall
on the Genki property in Flathead County as a result of Lai’s negligence. Because this count
clearly sounds in tort, we need not address whether any of Liang’s other counts are properly
characterized as “statutory torts.” The issue left for us to resolve is whether or not the
District Court correctly concluded that the 1997 revision of § 25-2-118, MCA, changes or
“trumps” the application of § 25-2-122, MCA, when determining what county is a proper
venue for a torts case in which the alleged tort occurred in a different county than that in
which the defendant resides.
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¶16 We recently addressed this question in an Opinion of which the parties in the instant
case did not have the benefit at the time they filed their briefs. In Nelson v. Cenex, Inc.,
2004 MT 170, ___ Mont. ___, ___ P.3d ___, we considered whether or not a district court
erred when it denied the defendant’s motion for change of venue. In Nelson, the plaintiff
filed a tort claim in Lewis and Clark County, which was the county in which one of the
defendants, a foreign corporation, had its registered agent located. Nelson, ¶ 3. The two
named individual defendants resided in Yellowstone County, and the alleged tort occurred
in Yellowstone County. Nelson, ¶ 3. As does Lai here, the individual defendants claimed
they were entitled to a change of venue because their place of residence was Yellowstone
County. Nelson countered that because Lewis and Clark County was a proper venue, the
defendants were not entitled to a change of venue. The District Court agreed with Nelson,
and we affirmed, concluding that the District Court was correct in denying the motion to
change venue. Nelson, ¶ 13. We relied on § 25-2-122(2)(c), MCA, in determining that the
venue of Lewis and Clark County was a proper venue because that was the county in which
the corporation’s resident agent was located. Nelson, ¶ 10. We further reasoned that
Yellowstone County, where the two individuals resided, would also be a proper venue for
trial. Nelson, ¶ 9. Similarly, in Liang’s case, Sanders County, where defendant Gerri Lai
resides, would be a proper venue for trial.
¶17 However, as we noted in Nelson, the MCA contains additional venue statutes which
provide for exceptions to the general venue rules of § 25-2-118, MCA, for specific types of
actions. Nelson, ¶ 10. The specific venue rules for tort actions are set forth in § 25-2-122(1),
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MCA, which provides that, among other proper venues, the proper place of trial for a tort
action is (a) the county in which the defendants . . . reside at the commencement of the
action; or (b) the county in which the tort was committed. As our decision in Nelson
illustrates, the 1997 modification to § 25-2-118, MCA, has not altered our interpretation of
§ 25-2-122, MCA. Thus, Flathead County, the location of the Genki premises where the
allegedly tortious act occurred, is a proper venue for this case. This being so, no motion may
be granted to change the place of trial on the entire action. Section 25-2-115, MCA.
¶18 Lai argues that the only proper venue for the counts alleging violations of the Wage
and Benefit statutes is the county in which the defendant resides, and that he is thus entitled
to a change of venue for those counts. Although he cites to § 25-2-115, MCA, we believe
he is referring to § 25-2-116, MCA, when he makes this argument. Section 25-2-116, MCA,
provides in part that “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. . . .”
¶19 The problem is that Lai presupposes, and erroneously so, that he is entitled to change
the place of trial in the first place. As explained above, he is not. We addressed the
applicability of § 25-2-116, MCA, in Wentz, in which we noted that § 25-2-116, MCA, was
enacted as a codification of our holdings involving venue changes in multiple claim cases,
as a way of preventing plaintiffs from promulgating spurious claims as a means of denying
a favorable venue to a defendant. Wentz, 280 Mont. at 21-22, 928 P.2d at 241. Our review
of the record here does not reveal any indication that Lai added the Genki counts as a way
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to manipulate venue in this case, nor do the defendants so allege. Thus, we have no basis
for applying § 25-2-116, MCA, to the instant case.
¶20 We conclude that, pursuant to § 25-2-122(1)(b), Liang chose a proper venue for his
Amended Complaint when he filed in it Flathead County. Thus, the District Court erred
when it granted a change of venue to Lai.
CONCLUSION
¶21 For the foregoing reasons, we reverse the District Court’s Change of Venue and
remand for further proceedings consistent with this Opinion.
/S/ PATRICIA O. COTTER
We Concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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