Whalen v. Snell

NO. 83-160

IN THE SUPREME COrTRT OF THE STATE OF MONTANA

1983

MICHAEL J. WHALEN,

Plaintiff and Appellant,

VS .
W. CARTER SNELL,

Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable William Speare, Judge presiding.

Counsel of Record:

For Appellant:

Whalen & Whalen, Billings, Pflontana

For Respondent :

Brown and Huss, Miles City, Plontana

Submitted on briefs: June 9 , 1983

Decided : August 4, 19 9 3
Filed: IUI; 4 1983
Mr. Justice Frank R . Morrison, Jr. delivered the Opinion of
the Court.
Appeal is taken from an order of the District Court
the Thirteenth Judicial District, County of Yellowstone,
granting change of venue to Garfield County. We reverse.
Defendant W. Carter Snell (Snell) is a resident of
Garfield County, Montana. Plaintiff Michael J. Whalen
(Whalen) is an attorney with law offices in Billings,
Yellowstone County, Montana. In November, 1980, Snell
retained Whalen to provide legal services and represent him
in a marriage dissolution. After meeting with Snell and his
former wife, Whalen prepared a proposed property settlement
agreement. Negotiations proved fruitless, and with the
approval of Snell, an action for dissolution and property
settlement was brought in Rosebud County, Montana.
The parties apparently agreed that the legal services
would be billed at the rate of $75.00 per hour with
consideration to be given to the results obtained.
On June 15, 1982, Whalen billed Snell, for legal
services performed, in the amount of $12,322.01. Snell made
payments of $1,000 and $2,000 in June and July of 1982.
Allegedly, Snell repudiated his obligation to pay Whalen the
balance of the bill on August 16, 1982.
Thereafter, Whalen brought this action in Yellowstone
County, alleging the following all in one claim:
"1. Defendant owes plaintiff Nine Thousand, Three
Hundred Twenty-two and 01/100 Dollars ($9,322.01)
according to the account hereto annexed as Exhibit
'A' and by this reference incorporated herein.

"2. The balance hereinabove recited, arises out of
the employment of the plaintiff by the defendant,
at defendant's special instance and request to
represent him in connection with a marriage
dissolution which became Cause No. 9177 in the
District Court of the Sixteenth Judicial District
of the State of Montana in and for the County of
Rosebud, wherein judgment was entered on June 17,
1982.
 "3. After acknowledging existence of said account,
and making partial payments thereon, the defendant
repudiated his obligation thereon on or about
August 16, 1982. The actions of the defendant in
seeking and accepting the legal services of the
plaintiff and then repudiating his obligation to
pay for the same after the services were rendered,
were and are oppressive, fraudulent and ma.licious
and amount to a breach of good faith and fair
dealing as is implied-in-law and amount to the tort
of bad faith."
Whalen prayed for $9,322.01 in compensatory damages and
$10,000 in punitive damages.
Snell filed a motion for change of venue, claiming that
the action must be brought in the county in which the
defendant resides. Whalen filed an affidavit in opposition
to the motion; no affidavit or testimony was presented by
Snell. After oral argument, the Court granted the motion and
ordered that the case be transferred to Garfield County.
Appeal was taken to this Court.
The general rule governing venue of civil actions is
that the action shall be tried in the county in which the
defendant resides. Foley v. General Motors Corporation
(1972), 159 Mont. 469, 499 P.2d 774; section 25-2-108, MCA.

Permissive statutory exceptions to this general rule include
provisions that contract actions may be tried in the county
in which the contract was to be performed, and torts may be
tried in the county where the tort was committed. Sections
25-2-101,102, MCA.
Both parties argue that venue should be determined by
the place of performance of the contract; Whalen argues
performance was in Yellowstone County while Snell argues it
was not. However, it does not appear from the face of the
complaint that the action sounds in contract at all.
Instead, Whalen has merely pled a claim of bad faith in tort.
The rule for venue of this action is therefore found in

section 25-2-102, MCA, which provides that a tort action may
properly be brought in the county where the tort was
committed.
For the purposes of venue, a tort is committed where
there is a concurrence of breach of obligation and the
occassion of damages. The obligation which gives rise to
Whalen's cause of action is Snell's duty to deal fairly and
in good faith in paying the agreed rate for attorney fees.
This obligation was breached, if at all, where payment was to
be made.
From the uncontroverted facts in Whalen's affidavit it
is clear that Snell came from Garfield County to Whalen's
office in Billings, and entered into an agreement with Whalen
at that place. It is also clear from the nature of an
attorney's business that payment is to be made at the
attorney's office, his place of work and business. A lawyer
is not a peddler selling his services door-to-door, or
delivering his product to a distant location. Since payment
was to be made at Whalen's office any damages which are
incurred as a result of the alleged tort, occurred at
Whalen's office also.
Even if Whalen had pled both a tort and contract claim,
the result reached here would not change. Under section
25-2-101, MCA, an action upon a contract may be brought in

the county in which the contract was to be performed.
Place of performance of a contract is the place where
the obligation being sued upon was to be performed. It makes
little difference where Whalen tried the divorce action since
the manifest intention of the parties was that Snell's
performance, that is payment, was to be at Whalen's office in
Yellowstone County. Likewise, the interrelated tort action
would also occur at the place of Snell's performance. Acc.
Slovak v. Kentucky Fried Chicken (1973), 164 Mont. 1, 518
P.2d 791. Therefore, any future amendment to include a
contract claim would not affect venue.
This action was properly brought in Yellowstone County,
and the motion for change of venue should have been denied.
Reversed.

We concur:

~LX&~+
Chief Justice