Platt v. Sears, Roebuck & Co.

No. 86-12
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

CINDY JO PLATT, by her guardians,
CHARLES PLATT and VIVIAN PLATT;
STEVEN PLATT and COREY JO PLATT,
minors, by their guardians CHARLES
PLATT and VIVIAN PLATT,
Plaintiffs and Appellants,

SEARS, ROEBUCK & CO., a New York
corporation; THE MUSKIN CORPORATION,
a foreign corporation; WALTER FOUTY
and JOAN FOUTY,
Defendants and Respondents.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
P. Richard Meyer, Jackson, Wyoming
Michael J. McKeon, Anaconda, Montana
French, Mercer, Grainey & Duckworth; Edward K.
Duckworth, Ronan, Montana
For Respondent:
Garlington, Lohn & Robinson; Wm. Evan Jones, Missoula,
Montana (Sears & Muskin)
Worden, Thane & Haines; Jeremy G. Thane, Missoula,
Montana (Fouty)

Submitted on Briefs: March 28, 1986
Decided: June 24, 1986

Filed : JUN 2 4 1986

F & c3,-
4L
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiffs appeal from an order of the District Court of
the Second Judicial District in and for Silver Bow County.
The order granted defendants' motion for a change of venue
from Silver Bow County to Lake County pursuant to § 25-2-201,
MCA. We affirm.
The issue is whether venue was properly removed from
Silver Bow County, where defendant Sears does business, to
Lake County, where plaintiffs and defendants Fouty reside and
where the accident occurred.
This action arose from injuries received by plaintiff
Cindy Jo Platt when she dived into a swimming pool at the
home of defendants Walter and Joan Fouty. The other two
defendants, who allegedly designed, manufactured, marketed,
and distributed the swimming pool, are foreign corporations.
Plaintiffs filed suit in Silver Bow County. Defendants
Walter and Joan Fouty and Sears moved for a change of venue
to Lake County. After briefing and a hearing, defendants'
motions were granted. The court cited § 25-2-201, MCA, which
provides :

When change of venue required. The court or judge
must, on motion, change the place of trial in the
following cases:
(1) when the county designated in the complaint is
not the proper county;
(2) when there is reason to believe that an impar-
tial trial cannot be had therein;
(3) when the convenience of witnesses and the ends
of justice would be promoted by the change.

The court did not specify the subsection under which it
ruled. At the hearing, arguments were presented under both
subsections (1) and (3). In this appeal, the parties argue
whether Silver Bow County is a proper county for venue.
"The most fundamental of all venue rules" is that venue
is proper in the county in which the defendants reside.
Section 25-2-118, MCA, annot., Evidence Commission Recomrnen-
dations for Revisions. The Foutys are residents of Lake
County. As foreign corporations, Sears and the Muskin Corpo-
ration have no Montana residence for purposes of venue. See
Foley v. General Motors Corporation (19721, 159 Mont. 469,

This action sounds in contract and tort. The venue
statutes for actions in contract and tort contain exceptions
to the basic venue rule. Section 25-2-121, MCA, provides
that an action upon a contract may properly be tried, as an
alternative to the county of defendant's residence, in the
county where the contract was to be performed. A tort action
is properly tried in the county of defendant's residence or
in the county where the tort was committed. Section
25-2-122, MCA. There have been no allegations here of any
contract performance or tortious actions anywhere but in Lake
County. Based on the above statutes the proper place of
trial for this action remains in Lake County.
The plaintiffs base their position that Silver Bow
County is a proper place of trial on S 25-2-117, MCA:

Multiple defendants. If there are two or more
defendants in an action, a county that is a proper
place of trial for any defendant is proper for all
defendants, subject to the power of the court to
order separate trials under Rule 42 (b) of the
Montana Rules of Civil Procedure. If an action
with two or more defendants is brought in a county
that is not a proper place of trial for any of the
defendants, any defendant may make a motion for
change of place of trial to any county which is a
proper place of trial.
In connection with that statute, plaintiffs cite the rule
that a foreign corporation may be sued in any county. That
rule is set out at $
$ 25-2-118(2), MCA:

if none of the defendants reside in the state, the
proper place of trial is any county the plaintiff
designates in the complaint.

As it clearly states, S 25-2-118(2), MCA, only applies if
none of the defendants reside in Montana. A long line of
Montana cases has held that a foreign corporation may be sued
in any county of the state. Foley, 499 P.2d at 776. Section
25-2-118(2), MCA, does not change that rule. It limits the
rule, however, to exclude cases in which Montana residents
are also named as defendants. We conclude that when a for-
eign corporation is named as a defendant along with Montana
residents, the rule that a foreign corporation may be sued in
any county of the state does not apply, and venue is deter-
mined by using Montana's other venue statutes. In this case,
since the Fouty defendants are residents of Montana, venue is
determined by the other venue statutes discussed above. The
proper place of trial is Lake County.
Plaintiffs also raise an equal protection argument based
on their contention that, under this Court's decision in
Bradley v. Valmont Industries, Inc. (Mont. 1985), 701 P.2d
997, 42 St.Rep. 925, a Montana corporation resides in any
county in which it does business. That is not the rule. A
Montana corporation has only one residence, the county in
which it has its principal place of business. Because the
equal protection argument was based on the erroneous premise
that a Montana corporation resides wherever it does business,
we will not address it further.
Affirmed.
We Concur:

Mr. Chief Justice J. A. Turnage, deeming himself disqualified,
did not participate in this decision.