12/20/2016
DA 16-0325
Case Number: DA 16-0325
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 333N
KRISTINE DAVENPORT,
Plaintiff and Appellant,
v.
MORRISON & FRAMPTON, PLLC, SHARON M.
MORRISON, SEAN S. FRAMPTON, BRIAN JOOS
and RYAN PURDY,
Defendants and Appellees.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-16-132C
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kristine Davenport (Self-Represented), Missoula, Montana
For Appellees:
Fred Simpson, Reep, Bell, Laird, Simpson & Jasper, P.C.,
Missoula, Montana
Submitted on Briefs: November 16, 2016
Decided: December 20, 2016
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 This case arises from a failed subdivision/real estate development project in
Lincoln County, Montana. In 2007, the lending bank loaned the developer $250,000.
Before the project was completed the bank filed to foreclose on the $250,000 loan. In
2008, the developer’s attorney asked the Davenports for financial assistance and the
Davenports agreed to invest approximately $547,000 into the project, allowing the
project to be completed and preventing foreclosure. The bank agreed to hold the
foreclosure action in abeyance while the development was completed. However, when
the project was completed, the developer failed to sell any properties therein. The bank
amended its original foreclosure complaint to add the Davenports, among others, as
parties and again sought foreclosure.
¶3 Sean Frampton, a Whitefish resident and investor in the development project, as
well as a partner in Morrison & Frampton, a law firm located in Whitefish, Flathead
County, Montana, represented the owners and the developing contractor in the
foreclosure action. According to Kristine Davenport, Frampton induced her to allow a
default judgment to be entered against her in the Lincoln County foreclosure proceeding,
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convincing her that he would obtain a favorable outcome in that litigation and that all the
parties, including those against whom default judgments had been entered, would benefit.
Frampton failed to prevail and the Davenports, and other investors and contractors, lost
considerable funds as well as the property.
¶4 In January 2013, the Davenports, residents of Missoula, Missoula County,
Montana, and acting pro se, sued Morrison & Frampton and its partners, alleging multiple
contract and tort causes of action, including breach of contract, deceit, fraud, and
negligent misrepresentation. They sought compensatory and punitive damages as well as
costs and attorneys’ fees. Early in the proceeding, Kristine’s parents, James, who had
died, and Aileen, were dismissed as parties to the action, leaving Kristine as the sole
plaintiff.
¶5 Morrison & Frampton moved to change venue from Missoula County to Flathead
County. On February 4, 2016, the Fourth Judicial District Court, Missoula County,
granted the motion and instructed the clerk of court to transmit the record to the Flathead
County clerk of court.
¶6 Kristine Davenport appeals the court’s order granting a change of venue. We
affirm.
¶7 The dispositive issue on appeal is whether the District Court erred in granting
Morrison & Frampton’s Motion to Change Venue to Flathead County. We review a
district court’s grant or denial of a motion to change venue for improper county for
correctness. Circle S Seeds of Mont., Inc. v. Mont. Merch., Inc., 2006 MT 311, ¶ 5, 335
Mont. 16, 157 P.3d 671 (citations omitted).
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¶8 The District Court expressly noted that Davenport alleged both contract and tort
claims. It concluded that under § 25-2-121(1), MCA, venue for a contract claim must be
brought in either the county where the defendants, or any of the defendants, reside or in
the county where the contract was to be performed. The court observed that all of the
defendants in this case reside in Flathead County. The court further noted that the
defendants did not perform any contractual services in Missoula County. Consequently,
the District Court ruled that Flathead County was the proper venue for Davenport’s
contract claims.
¶9 Turning to Davenport’s tort claims, the court relied upon § 25-2-122(1)(a) and (b),
MCA, which provides that the proper venue for a tort action is “the county in which the
defendants or any of them reside at the commencement of the action,” or in “the county
in which the tort was committed.” The statute further provides that if the “tort is
interrelated with and dependent upon a claim for breach of contract, the tort was
committed, for the purpose of determining the proper place of trial, in the county in
which the contract was to be performed.” Section 25-2-122(1)(b), MCA. The court
concluded that the proper venue for Davenport’s tort claims was Flathead County.
¶10 Davenport, continuing to represent herself, argues on appeal that the tortious
actions of deceit and fraud took place in Missoula County when Frampton called
Davenport at her Missoula home and claimed that he would win the Lincoln County
foreclosure action. She asserts that her tort claims were neither related to nor dependent
upon her contract claims and therefore could be tried separately, presumably with the tort
claims being heard in Missoula County and the contract claims being heard in Flathead
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County. Morrison & Frampton counters that the resident county of the defendants is the
proper venue for all of Davenport’s claims. In addition to relying on §§ 25-2-121
and -122, MCA, Morrison & Frampton relies upon § 25-2-116, MCA, which provides:
In an action involving two or more claims for which this part
designates more than one as a proper place of trial, 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, subject to the power of the court to separate claims or
issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.
¶11 The District Court correctly determined that Flathead County was the appropriate
place of trial for this cause of action. Under the facts of this case and the applicable
statutes, both the contract and tort claims against Morrison & Frampton are correctly
reviewed in the resident county of the defendants. We further conclude that Davenport’s
arguments seeking to place venue in Missoula County based upon Frampton’s alleged
“unclean hands” and her view that venue in Flathead County is “manifestly unjust and
inequitable” are without merit.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the District Court’s interpretation and application of the relevant law was
correct.
¶13 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
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Davenport v. Morrison
Combined Opinion