January 27 2009
DA 08-0232
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 21
JAY DEIST,
Plaintiff and Appellee,
v.
DONNA THORNTON and THORCO, INC.,
a Montana Corporation,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-2008-304
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James C. Bartlett, Attorney at Law, Kalispell, Montana
For Appellee:
Alexander (Zander) Blewett, III, Joseph P. Cosgrove, Hoyt & Blewett,
PLLC, Great Falls, Montana
Submitted on Briefs: December 24, 2008
Decided: January 27, 2009
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Donna Thornton, a resident of Flathead County, Montana, sued Jay Deist (Deist),
also a Flathead County resident, in the United States District Court in Missoula, Montana,
claiming Deist had committed various federal crimes causing her injury. The federal
court ruled in favor of Deist and dismissed Thornton’s action. Deist then brought a
malicious prosecution claim against Thornton and Thorco, a Montana corporation of
which Thornton is an officer, in the Fourth Judicial District Court, also in Missoula.
Thornton and Thorco (collectively Thornton unless otherwise indicated) moved to change
the venue to the district court in Flathead County. The Fourth Judicial District Court
denied the motion. Thornton appeals. We affirm.
ISSUE
¶2 The dispositive issue on appeal is whether the District Court erred in denying
Thornton’s Motion to Change Venue to Flathead County.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In June 2004, Donna Thornton, an officer for an independent logging contractor
named Thorco, Inc., brought a federal action against Deist in the United States District
Court in Missoula, Montana, claiming that Deist, as a law enforcement officer with the
United States Forest Service, had issued “veiled threats” against her in retaliation for her
whistle blowing activities. Thorco was not a named party to this federal action. The
federal court dismissed Thornton’s claim in May 2006.
¶4 In March 2008, Deist filed a malicious prosecution complaint against both
Thornton and Thorco in the Fourth Judicial District Court in Missoula, Montana. He
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claimed that the federal suit brought by Thornton against him was malicious, lacked
probable cause, and caused him emotional distress, physical illness and damage to his
reputation.
¶5 Thornton moved the District Court for an order to change the place of trial from
Missoula County to Flathead County. She argued that both she and Deist reside in
Flathead County; therefore, in accordance with § 25-2-118, MCA, Deist should have
commenced his action in Flathead County.
¶6 Deist countered in his response to Thornton’s motion that the proper venue of a
malicious prosecution action is the county in which the complaint from the underlying
case, i.e., Thornton’s federal claim, was filed. He argued that § 25-2-118, MCA, was not
controlling; rather, § 25-2-122, MCA, dictated that 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. Deist claimed that the tort was committed in Missoula County where
Thornton brought her federal action against him and where he suffered damages. The
District Court agreed with Deist and denied Thornton’s motion. She appeals.
STANDARD OF REVIEW
¶7 The determination of proper venue is a question of law involving the application
of Montana’s venue statutes to the pleaded facts. Our review of a district court’s grant or
denial of a motion to change venue is plenary; we merely determine whether the court’s
decision is legally correct. Circle S Seeds v. Montana Merchandising, 2006 MT 311, ¶ 5,
335 Mont. 16, 157 P.3d 671 (citations omitted).
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DISCUSSION
¶8 Did the District Court err in denying Thornton’s Motion to Change Venue to
Flathead County?
¶9 Section 25-2-122, MCA, identifies various counties in which a tort action may
properly be brought depending on the circumstances of the case. This being a tort matter,
the proper venue is either the county in which the defendants reside or the county in
which the tort was committed. For purposes of venue, a tort is committed where there is
a concurrence of a breach of obligation and the occasion of damages. Whalen v. Snell,
205 Mont. 299, 302, 667 P.2d 436, 437 (1983). Deist filed his claim for malicious
prosecution1 in Missoula County, arguing that Missoula County is where both the
breach—i.e., Thornton’s filing of her federal claim—occurred, and his damages were
incurred.
¶10 Acknowledging that § 25-2-122, MCA, is the pertinent venue statute for a tort
action, Thornton addresses the first factor for determining where a tort is committed—the
place where the breach of an obligation occurs. She argues that plaintiffs are required to
file their federal actions in specific counties in Montana. She submits that Montana,
exclusive of Yellowstone National Park, constitutes one single federal judicial district
that has been divided into divisions by local federal judges to enable easier workload
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The elements of a malicious prosecution claim are: (1) a judicial proceeding commenced
against the party alleging malicious prosecution; (2) the other party’s responsibility for
instigating the proceeding; (3) a want of probable cause for the other party’s action; (4) the
existence of malice as the motivator behind the other party’s action; (5) the termination of the
proceeding in favor of the alleging party; and (6) damages suffered by the party alleging
malicious prosecution. O’Fallon v. Farmers Ins. Exchange, 260 Mont. 233, 238, 859 P.2d 1008,
1011 (1993). Deist argued all six elements in his complaint and the existence of the elements are
not disputed on appeal.
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sharing. For example, the Missoula Division is the designated county for residents from
Flathead, Granite, Lincoln, Mineral, Missoula, Ravalli and Sanders Counties to file
federal claims. With no supporting authority, she asserts, however, that a Flathead
County resident who merely files and pursues a federal claim in Missoula County does
not actually commit her breach of obligation in Missoula County; rather, she is simply
obligated to file her federal case there under federal procedural rules. She maintains that
a state tort action arising from an underlying federal litigation between two Flathead
County residents must be filed in Flathead County, regardless of the fact that she filed her
federal case in Missoula.
¶11 Addressing Deist’s claim of damages, Thornton argues that the simple filing of the
federal complaint in Missoula did not give rise to damages; therefore, the filing of the
complaint was not a tort for purposes of determining venue. She relies on cases that
establish a claimant’s place of damages to be either his residence or his principal place of
doing business. See BHC Holding Co. v. Hurly, 242 Mont. 4, 6, 788 P.2d 322, 323-24
(1990); Carter v. Nye, 266 Mont. 226, 228, 879 P.2d 729, 730 (1994); Circle S Seeds.
Based upon her interpretation of these cases, she asserts that Deist’s damages occurred in
Flathead County. Anticipating that Deist may claim damages based upon mental
suffering experienced in Missoula as a result of Deist traveling to Missoula during the
course of the federal litigation, Thornton submits that the transient nature of this type of
suffering should be afforded less weight than the situs of the underlying conduct. She
argues that the “controlling ‘acts’ or ‘deed’ or ‘misdeeds’ giving rise to a malicious
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prosecution case all arose” and that “ ‘malice’ and ‘probable cause’ have their genesis” in
Flathead County.
¶12 Deist counters that Thornton’s breach of obligation occurred in Missoula County
at the time Thornton filed her federal lawsuit against him. Moreover, he argues that the
record clearly establishes that he suffered economic, emotional, and reputation damages
in Missoula County as a result of Thornton’s breach. Consequently, Missoula County
was where the concurrence of both the breach of obligation and the occasion of damages
occurred. He maintains that if two counties are potentially proper venues under
§ 25-2-122(1), MCA, the plaintiff may choose either county. Carter, 266 Mont. at 229,
879 P.2d at 730. Deist further asserts that if more than one county is a proper venue, and
the plaintiff selects a proper county, under § 25-2-115, MCA, the court may not grant a
motion to change venue if the foundation of the motion is that the plaintiff has filed the
action in an improper county.
¶13 Deist submitted an affidavit to the District Court in which he claimed that during
the approximate two-year-long federal litigation proceeding, he incurred unreimbursed
expenses associated with repeatedly traveling to Missoula County to defend against the
lawsuit. He also claimed that he suffered emotional distress during his time in Missoula
County while meeting with U.S. Government officials, including his former supervisor,
as a result of Thornton’s lawsuit. Lastly, Deist contended that his reputation as an
individual and a law enforcement officer was damaged in Missoula County by
Thornton’s serious allegations, all of which were graphically described in public
documents. Deist maintains the same damage claims on appeal.
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¶14 We conclude Carter is apposite. In Carter, attorney Nye, a Yellowstone County
resident, and attorney Carter, a Richland County resident, represented opposing clients in
a lawsuit that ended in a structured settlement agreement and dismissal of the case.
Subsequently, Carter filed a malicious prosecution case against Nye in Richland County.
As defendant, Nye moved to change the venue to his county of residence, Yellowstone
County. The Richland County district court denied the motion. Carter, 226 Mont. at
227-28, 879 P.2d at 730. Nye appealed and we affirmed, explaining that an element of a
malicious prosecution claim is that a judicial proceeding is commenced against the party
alleging malicious prosecution. We noted that such a proceeding is commenced by filing
a complaint with the court and that Nye had filed the underlying complaint in Richland
County. Additionally, we concluded for purposes of venue that if Carter incurred the
damages he alleged, he incurred them in Richland County. As such, Richland County
was a proper venue for Carter’s action to proceed. Carter, 226 Mont. 229-30, 879 P.2d at
731. While distinguishable from the case at bar because the underlying action in Carter
was not a federal action requiring filing in a specific location, we are not persuaded that
this distinction changes the outcome, nor does Thornton provide any authority for such a
conclusion. Moreover, other jurisdictions have unequivocally held that the venue for a
suit for malicious prosecution properly lies in the county where the prosecution was
begun. King v. Milner, 167 P. 957 (Colo. 1917); Rooney et al. v. Murphy, 62 S.W.2d 659
(Tex. Ct. App. 1933).
¶15 Thornton’s purported breach of duty occurred when she intentionally and with
alleged malice filed and prosecuted an unsupportable federal cause of action against
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Deist. To do so, she willingly traveled to Missoula County where, for approximately two
years, the federal court prosecuted this matter before terminating it in favor of Deist.
Moreover, substantial evidence supports Deist’s claim that he suffered damages in
Missoula County as a result of Thornton’s suit. The concurrence of breach and damages
in Missoula County support the District Court’s conclusion that Missoula County was a
proper venue for Deist’s malicious prosecution claim.
¶16 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA COTTER
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
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