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Appellant Marla Ward filed suit seeking damages for personal injuries she sustained as she was sorting horses on Appellee Paul Johnson's property. Johnson resided in Pondera County. Johnson filed a motion to change venue, arguing that Pondera County was the appropriate place for trial because it was the only county where a defendant resided. Ward opposed the motion, asserting that case law permitted Ward to file her claim in Yellowstone County, her place of residence. The district court ruled in favor of Johnson. The Supreme Court reversed, holding (1) Ward's decision to file her complaint in Yellowstone County was legally correct under Mont. Code Ann. 25-2-122(2)(b); and (2) the statute permitting Ward to file her action in the county of her residence did not deprive Johnson of the equal protection of the laws.Receive FREE Daily Opinion Summaries by Email
May 1 2012
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 96
Plaintiff and Appellant,
PAUL JOHNSON, POWDER RIVER,
INC, and DOES 1-50, inclusive,
Defendants and Appellees.
District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 11-1046
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
Dennis P. Conner, Gregory G. Pinski; Conner & Pinski, PLLP;
Great Falls, Montana
Randy S. Laedeke, Laedeke Law Office; Billings, Montana
John F. Haffey, Michael W. De Witt; Phillips Law Firm, P.C.;
Missoula, Montana (Paul Johnson)
Dan L. Spoon; Spoon Gordon Ballew, PLLP; Missoula, Montana
(Powder River, Inc.)
Submitted on Briefs: March 21, 2012
Decided: May 1, 2012
Justice Beth Baker delivered the Opinion of the Court.
Appellant Marla Ward appeals the Thirteenth Judicial District Court’s order
granting Appellee Paul Johnson’s motion for change of venue to Pondera County, where
Johnson resides. On the basis of controlling precedent, we reverse.
We address the following issues on appeal:
1. Whether the District Court erred in granting Johnson’s motion for a change of
venue to his county of residence.
2. Whether application of Montana’s venue statutes violates Johnson’s right to
equal protection of the law.
PROCEDURAL AND FACTUAL BACKGROUND
On July 15, 2011, Ward filed suit seeking damages for personal injuries she
sustained when a gate failed to latch and struck her in the head as she was sorting horses
on Johnson’s property. She alleged claims for strict products liability and breach of
warranties against Powder River, Inc., the gate’s manufacturer.
Johnson was negligent.
She also claimed
Ward is a resident of Yellowstone County and filed her
Ward’s injuries occurred in Pondera County.
Powder River is a
non-resident corporation organized under the laws of the State of Idaho with its principal
place of business in Utah.
On August 29, 2011, Johnson filed a motion to change venue. Johnson argued
Pondera County was the appropriate place for trial pursuant to § 25-2-122(1), MCA, as it
was the only county where a defendant resided. Powder River neither supported nor
objected to the motion. Ward opposed the motion, asserting our decision in Nelson v.
Cenex Inc., 2004 MT 170, 322 Mont. 54, 97 P.3d 1073, controlled and permitted Ward to
file her claim in Yellowstone County, her place of residence. The District Court, without
mentioning Nelson in its order, ruled in favor of Johnson stating Pondera County was the
only proper venue. Ward appeals.
STANDARD OF REVIEW
Whether a county designated in the complaint is a proper place for trial is a
question of law. DML, Inc. v. Fulbright, 2005 MT 204, ¶ 7, 328 Mont. 212, 119 P.3d 93.
We review de novo a District Court’s decision to transfer venue because the complaint
was not filed in the proper county. BNSF Ry. Co. v. State ex rel. Dept. of Envtl. Quality,
2010 MT 46, ¶ 7, 355 Mont. 296, 228 P.3d 1115.
1. Whether the District Court erred in granting Johnson’s motion for a change of
venue to his county of residence.
Venue is determined by the status of the parties and pleadings at the time of the
complaint or at the time the moving party appears in the action. Lockhead v. Weinstein,
2001 MT 132, ¶ 5, 305 Mont. 438, 28 P.3d 1081. Section 25-2-114, MCA, permits a
defendant to move for a change of venue when “an action is brought in a county not
designated as the proper place for trial.”
Section 25-2-118, MCA, the general rule for venue in civil actions, provides in
(1) Except as provided in subsection (3) [concerning family law
matters], 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).
With respect to tort actions, § 25-2-122, MCA, states:
(1) Except as provided in subsections (2) through (4), the proper
place of trial for a tort action is:
(a) the county in which the defendant or any of them reside at the
commencement of the action; or
(b) the county in which the tort was committed. . . .
(2) If the defendant is a corporation incorporated in a state other
than Montana, the proper place of trial for a tort action is:
(a) the county in which the tort was committed;
(b) the county in which the plaintiff resides; or
(c) the county in which the corporation’s resident agent is located,
as required by law. [Emphasis added.]
Ward argues that § 25-2-122(2), MCA, controls here because Powder River is
incorporated in a state other than Montana. Johnson asserts that subsection is applicable
only where an out-of-state corporation is sued independently, or with another out-of-state
corporation or individual. Finding our precedent determinative, we agree with Ward that
subsection (2) allowed her to file her complaint in Yellowstone County.
In Nelson, the plaintiff filed his complaint in Lewis and Clark County, alleging
tort claims against three corporate entities and two individual defendants. Nelson, ¶ 3.
CHS, Inc., the successor-in-interest to the three corporate defendants, was incorporated
and maintained its principal place of business in Minnesota. CHS’s registered agent in
Montana was located in Lewis and Clark County. The two individual defendants were
residents of Yellowstone County, and Nelson resided in Missoula County. The district
court denied CHS’s motion for a change of venue and this Court affirmed. Nelson, ¶ 13.
We reaffirmed that § 25-2-118(2), MCA, did not apply “where one or more of the
defendants reside[s] in Montana.” Nelson, ¶ 12 (citing Platt v. Sears, Roebuck & Co.,
222 Mont. 184, 187, 721 P.2d 336, 338 (1986)). We disagreed with CHS’s argument that
§ 25-2-122(1), MCA, required the case to be brought in the resident defendants’ county
of residence. Rejecting the contention that subsection (1) controlled because subsections
(2) and (3) “only applied where none of the defendants reside[s] in Montana,” we stated
that when § 25-2-118(2), MCA, is inapplicable, “venue must be determined according to
other venue statutes.” Nelson, ¶¶ 11-12 (emphasis added). We held that Lewis and Clark
County was a proper place for trial under § 25-2-122(2), MCA, and Nelson was “legally
correct” in filing his complaint there. Nelson, ¶ 13.
Nelson compels a similar conclusion in this case. We agree with Johnson that
Pondera County would have been a proper place for trial under § 25-2-122(1), MCA.
Nonetheless, because Powder River is incorporated in a state other than Montana, § 25-2122(2), MCA, also specifies a proper place for trial. Accordingly, Ward’s decision to file
her complaint in Yellowstone County was legally correct under § 25-2-122(2)(b), MCA.
Johnson attempts to distinguish Nelson by noting that in that case it was CHS, the
out-of-state corporation, that challenged venue; here, Johnson, the in-state individual
defendant, is asserting his right to have the trial conducted in his county of residence as
provided by § 25-2-118(1), MCA. This distinction is not supported by our construction
of the statute in Nelson. Our decision there did not depend on which defendant sought a
change of venue, but on whether one or more of the defendants was a Montana resident.
We recognize the historical preference of the law for defendants to be sued in their
county of residence (See Hardenburgh v. Hardenburgh, 115 Mont. 469, 475, 146 P.2d
151, 153 (1944); McNussen v. Graybeal, 141 Mont. 571, 578-79, 380 P.2d 575, 578-79
(1963)). Johnson makes a plausible argument for construction of the venue statutes, but
it is one we already rejected in Nelson. If our holding there does not accurately reflect
the intent of the statute, it remains the prerogative of the Legislature to amend it. Certain
v. Tonn, 2009 MT 330, ¶ 18, 353 Mont. 21, 220 P.3d 384 (citing Sampson v. Natl.
Farmers Union Prop. & Cas. Co., 2006 MT 241, ¶ 20, 333 Mont. 541, 144 P.3d 797).
The Legislature has not done so; therefore our interpretation in Nelson controls.
Moreover, the law makes clear that where there are two or more defendants, “a
proper place of trial for any defendant is proper for all defendants.” Section 25-2-117,
MCA. This statute “is intended to apply to all venue provisions.” Weiss v. State, 219
Mont. 447, 450, 712 P.2d 1315, 1317 (1986). “[T]he right to move for a change of venue
under § 25-2-117, MCA, applies only if the action is filed in a county that is a proper
place of trial for none of the defendants.” Farmers Union Ass’n v. Paquin, 2009 MT
305, ¶ 12, 352 Mont. 390, 217 P.3d 74 (emphasis added). Since Yellowstone County is a
proper county for trial as to defendant Powder River under § 25-2-122(2), MCA, it also is
a proper county as to Johnson.
¶17 2. Whether application of Montana’s venue statutes violates Johnson’s right to
equal protection of the law.
Johnson asserts that this application of the venue statutes would violate his right to
equal protection of the law under the Fourteenth Amendment to the United States
Constitution and Article II, Section 4 of the Montana Constitution because it treats
resident defendants differently depending on whether they are sued with a non-resident
defendant. Ward argues Johnson is prohibited from asserting this constitutional claim
because Johnson did not notify the Attorney General pursuant to M. R. App. P. 27.
Under that rule, “a party who challenges the constitutionality of any act of the Montana
legislature . . . must give notice to the supreme court and to the Montana attorney general
of the existence of the constitutional issue.” Ward contends Johnson’s failure to provide
notice denied the State an opportunity to advance a legitimate governmental interest in
maintaining the current venue statutes. For the reasons that follow, we do not rely on
Ward’s notice argument but conclude that Johnson’s constitutional rights are not violated
by application of the statutes in question.
We have analyzed a party’s constitutional arguments absent compliance with the
notice requirement in cases where the challenging party was not asserting the statute
itself was unconstitutional. Polasek v. Omura, 2006 MT 103, ¶ 20, 332 Mont. 157, 136
P.3d 519. Here, Johnson is not asserting the plain language of § 25-2-122, MCA, is
unconstitutional; rather, it is this Court’s application of the statute in multiple-defendant
cases that allegedly violates his right to equal protection. It is also unclear whether M. R.
App. P. 27 applies when, as here, the constitutional issue is raised by the appellee in
defense of a district court’s ruling on non-constitutional grounds. Our previous cases
rejecting the constitutional claim for noncompliance with the rule did not consider this
unique situation. Boettcher v. Mont. Guaranty Fund, 2006 MT 127, ¶ 12, 332 Mont. 279,
140 P.3d 474; Weinert v. City of Great Falls, 2004 MT 168, ¶ 13, 322 Mont. 38, 97 P.3d
1079; Russell v. Masonic Home of Mont., Inc., 2006 MT 286, ¶ 20, 334 Mont. 351, 147
P.3d 216. Given the lack of clear application of the rule in this instance, we consider
Johnson’s constitutional argument on its merits.
Johnson asserts that our application of § 25-2-122(2), MCA, violates his right to
equal protection because he is compelled to defend this action in Ward’s county of
residence simply because she named a nonresident defendant in her complaint. “The
principal purpose of the Equal Protection Clause, Article II, Section 4, of the Montana
Constitution, is to ensure that persons who are citizens are not subject to arbitrary and
discriminatory state action.” Timm v. Mont. Dept. of Pub. Health & Human Servs., 2008
MT 126, ¶ 30, 343 Mont. 11, 184 P.3d 994.
The right to equal protection “does not prevent a state from adjusting its
legislation to differences in situation or forbid classification in that connection,” it merely
requires that those classifications are not arbitrarily made and have “a reasonable relation
to the subject of that particular legislation.” Ford v. Burlington N. R.R., 250 Mont. 188,
193, 819 P.2d 169, 173 (1991) (quoting Power Mfg. Co. v. Saunders, 274 U.S. 490, 493,
47 S. Ct. 678, 679 (1927). If the “classification is neither capricious nor arbitrary, and
rests upon real differences and some reasonable consideration of difference or policy,
there is no denial of the equal protection of the law.” Powder River Co. v. State, 2002
MT 259, ¶ 79, 312 Mont. 198, 60 P.3d 357. Our review of these classifications is not
confined to the purposes advanced by the legislature or litigants, but extends to “any
possible purpose of which the court can conceive.” Satterlee v. Lumberman’s Mut. Cas.
Co., 2009 MT 368, ¶ 34, 353 Mont. 265, 222 P.3d 566. This standard reflects the notion
“that the drawing of lines that create distinctions is peculiarly a legislative task and an
unavoidable one.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 2567
In Ford, the plaintiff was injured while working as a locomotive engineer and filed
suit in Yellowstone County against an out-of-state corporation under the Federal
Employers Liability Act. 250 Mont. at 189, 819 P.2d at 170. Burlington argued our
application of the venue statutes in FELA cases violated its right to equal protection by
permitting actions against a foreign corporation in any county, while actions against a
domestic corporation could only be brought in the county where it had its principal place
of business. 250 Mont. at 190, 819 P.2d at 171. We disagreed, noting the United States
Supreme Court’s observation that a state’s directive as to one proper forum over another
“can have no tendency to violate the guarantee of the equal protection of the laws where
in both the forums equality of the law governs and equality of administration prevails.”
Ford, 250 Mont. at 192, 819 P.2d at 171 (quoting Cincinnati Street Ry. Co. v. Snell, 193
U.S. 30, 37, 24 S. Ct. 319, 321 (1904)). We declined to address whether there was a
rational basis for treating out-of-state corporations differently due to a “national policy”
allowing railroad workers “to sue their employer at any location where the employer does
business.” 250 Mont. at 195, 819 P.2d at 174.
On certiorari, the United States Supreme Court affirmed. It held that Montana’s
venue laws satisfied rational basis review because, in adjusting the “warring interests” of
parties with different forum preferences, states may have a number of choices, “each of
them passable under the standard tolerating some play in the joints of governmental
machinery.” Burlington N. R.R. v. Ford, 504 U.S. 648, 651, 112 S. Ct. 2184, 2186-87
(1992). It concluded that Montana rationally could have decided that “a nonresident
defendant’s interest in convenience is too slight to outweigh the plaintiff’s interest in
suing in the forum of his choice.” 504 U.S. at 652, 112 S. Ct. at 2187. The Court
explained that states must be afforded some liberty in striking a balance between these
competing interests; thus, “a State would act within its constitutional prerogatives if it
were to give so much weight to the interests of plaintiffs as to allow them to sue in the
counties of their choice under all circumstances.” 504 U.S. at 651-52, 112 S. Ct. at 2187.
Finally, the Court acknowledged that while Montana could have implemented its policy
judgment “with greater precision,” the distinctions withstood rational-basis review
because “rational distinctions may be made with substantially less than mathematical
exactitude.” 504 U.S. at 653, 112 S. Ct. at 2187 (quoting New Orleans v. Dukes, 427
U.S. 297, 303, 96 S. Ct. 2513, 2517 (1976)).
We conclude, as in Ford, that there is a rational basis for a legislative
determination to expand a plaintiff’s venue options when there are both resident and
The legislature could have presumed that, because the
nonresident defendant will be inconvenienced regardless of where the suit is brought, the
resident defendant, rather than the plaintiff, should bear any additional burdens associated
with venue. This is not an arbitrary distinction, as a plaintiff’s interest in filing suit in the
forum of her choice is likely greater when there are multiple defendants involved in the
litigation residing both in and outside of Montana. We also note that the statute at issue
in Ford was amended by the legislature so that plaintiffs in tort actions now are afforded
only two more options for proper venue—their place of residence or where the tort was
committed—rather than any county of their choice.
Section 25-2-118(2), MCA.
Accordingly, a plaintiff is not permitted to simply choose the venue farthest away from
the resident defendant and, in many instances, one of the two additional locations also
will be where the defendant resides.
While a different scheme would have been
permissible, the legislature’s policy choice in this instance is not constitutionally invalid.
We conclude that the statute permitting Ward to file her action in the county of her
residence does not deprive Johnson of the equal protection of the laws. Ward filed her
complaint in a proper county. The District Court’s order granting Johnson’s motion to
change venue is reversed.
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE