WOOLCOCK v BEARTOOTH RANCH
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No. 81-255 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 RUSSELL WOOLCOCK, d/b/a SPRING MOUNTAIN RANCH, Plaintiff and Appellant, BEARTOOTH RANCH, a dissolved Montana Corporation, BEARTOOTH RANCH, a partnership; VERNON SANDERS, GEORGE ELLIS, JOHN DOE I, JOHN DOE 11, et al., Defendants and Respondents. Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade. Honorable John McCarvel, Judge presiding. Counsel of Record: For Appellant: Jardine, Stephenson, Blewett Montana & Weaver, Great Falls, For Respondents: Anderson, Brown, Gerbase, Cebull Montana & Jones, Billings, Submitted on briefs: September 3, 1981 Decided: . a/PA* ' Clerk &C 1 9 Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n of t h e C o u r t . T h i s i s an a p p e a l f r o m a r u l i n g i n t h e D i s t r i c t C o u r t o f t h e E i g h t h J u d i c i a l D i s t r i c t o f t h e S t a t e o f Montana, and for the County of Cascade, where the court in granted d e f e n d a n t s ' m o t i o n f o r c h a n g e o f v e n u e and moved t h e a c t i o n from C a s c a d e County t o S t i l l w a t e r C o u n t y . Plaintiff and a p p e l l a n t , S p r i n g Mountain Ranch, R u s s e l l Woolcock, f i l e d a c o m p l a i n t i n Cascade County s e e k i n g b o t h compensatory and p u n i t i v e complaint, d/b/a damamges. In Woolcock a l l e g e d t h a t t h e d e f e n d a n t s his inten- tionally, f a l s e l y a n d f r a u d u l e n t l y made r e p r e s e n t a t i o n s regarding a bull named Negotiator 510L. The complaint f u r t h e r a l l e g e s t h a t Woolcock r e l i e d on t h e s e m i s r e p r e s e n t a tions and purchased the bull at an auction held by the B e a r t o o t h Ranch on O c t o b e r 1 0 and 11, 1 9 7 9 . The d e f e n d a n t s moved f o r a c h a n g e o f p l a c e o f t r i a l from Cascade Court granted County the to Stillwater motion on the County. grounds The that District Stillwater C o u n t y was t h e r e s i d e n c e and p r i n c i p a l p l a c e o f b u s i n e s s o f t h e d e f e n d a n t s , was t h e p l a c e of t h e c o n t r a c t ' s p e r f o r m a n c e , and was t h e p l a c e o f t h e occurrence of the alleged t o r t s . P l a i n t i f f and a p p e l l a n t a p p e a l s t h e o r d e r c h a n g i n g t h e p l a c e of t r i a l and p r e s e n t s t h e f o l l o w i n g i s s u e s : 1. Does t h e c o m p l a i n t s t a t e a c o n t r a c t c l a i m o r a t o r t claim? 2. Is S t i l l w a t e r County t h e p r o p e r p l a c e f o r t r i a l i f the action is i n t o r t ? 3. Was s u f f i c i e n t e v i d e n c e p r e s e n t e d t o t h e D i s t r i c t C o u r t t o s u p p o r t t h e change of venue motion? Appellant contends t h a t h i s a c t i o n is i n t o r t , consequently, the contract venue statute and, inapplicable. is A p p e l l a n t s u p p o r t s t h i s c o n t e n t i o n by r e f e r r i n g t o s p e c i f i c ". language used i n t h e complaint, such a s : sentations tionally, causing alleged in paragraph I11 . . hereof the repre- were inten- f a l s e l y and f r a u d u l e n t l y made f o r t h e p u r p o s e o f plaintiff and the public to believe . . . that N e g o t i a t o r 510L was t h e s o l e and o n l y p r o g e n y of J u s t a m e r e RN890C . . ." A c c o r d i n g t o a p p e l l a n t , t h i s language, coupled w i t h t h e f a c t t h a t t h e r e h a s b e e n no a c t i o n t o r e s c i n d t h e c o n t r a c t , i s s u f f i c i e n t t o support an a c t i o n i n t o r t . I n S t a t e ex r e l . Dimler v. D i s t r i c t C o u r t ( 1 9 7 6 ) , 1 7 0 Mont. 7 7 , 550 P.2d 9 1 7 , t h i s C o u r t s t a t e d : ". . . Here, p l a i n t i f f s chose t o a f f i r m t h e c o n t r a c t and s u e f o r f r a u d u l e n t r e p r e s e n t a t i o n s preceding the contract, representations w h i c h p l a i n t i f f s a l l e g e d i n d u c e d them t o s i g n t h e c o n t r a c t f o r p u r c h a s e of d e f e n d a n t s ' home. "That such course of a c t i o n is p e r m i s s i b l e and i n f a c t i s n o t a c o n t r a c t a c t i o n h a s l o n g been r e c o g n i z e d i n t h e law. 37 A m . J u r . 2 d I F r a u d and D e c e i t , S 3 3 2 , p . 4 3 9 , s t a t e s i n pertinent part: " ' A t r a d i t i o n a l remedy o r d i n a r i l y a v a i l a b l e t o a p e r s o n who h a s p a r t e d w i t h s o m e t h i n g o f value a s a r e s u l t of a contract or transa c t i o n i n d u c e d by f r a u d i s t h a t h e may r e t a i n w h a t h e h a s r e c e i v e d and b r i n g a n a c t i o n a t l a w t o r e c o v e r t h e damages s u s t a i n e d . Thus, a p e r s o n who h a s b e e n i n j u r e d by t h e f r a u d o f a n o t h e r o r o t h e r s , by e i t h e r a p a r t y o r p a r t i e s t o a transaction or a t h i r d party or t h i r d p a r t i e s committing fraudulent a c t s involving or bringing about t h e n e g o t i a t i o n of a t r a n s a c t i o n , s u c h t r a n s a c t i o n u s u a l l y but not necessarily involving business or c o m m e r c i a l d e a l i n g s , may m a i n t a i n a n a c t i o n a t l a w i n t o r t t o r e c o v e r damages f o r t h e i n j u r y r e c e i v e d f r o m t h e f r a u d and d e c e i t p e r p e t r a t e d by s u c h o t h e r o r o t h e r s . The foundation of t h e a c t i o n is n o t c o n t r a c t , b u t [Emphasis i n D i m l e r . ] tort. .. ". . . 37 Am.Jur.2dr F r a u d and D e c e i t , S 3 3 3 , -3- p. 442, continues the discussion: "'In accordance with the right to bring an action for deceit generally, a buyer who has been induced by the fraud - the seller to ofpurchase real or personal propert1 may ordinarily maintain an action for, or in the nature of, deceit to recover damages resulting from the fraud .' [Emphasis in Dimler ] . . . "Applying the authorities discussed to plaintiffs' allegations of misrepresentation on the part of defendants, these conclusions can be made as to plaintiffs' cause of action in the instant case: The cause of action arises from representations which plaintiffs claim induced the execution of the contract, section 13-308, R.C.M. 1947. Such representations necessarily contain an obligation to act in good faith. Such representations if knowingly false, as alleged, would be a 'breach of an obligation' as contemplated by section 17-208. Additionally, a cause of action for fraudulent inducement can be in tort and thus independent of the contract and therefore affirmance of the contract does not automatically preclude suit in tort for fraud. Since plaintiffs' cause of action for fraud is based in tort, not contract, section 17-208, R.C.M. 1947, is not controlling and plaintiffs can properly pray for punitive damages." 550 P.2d at 920-921. Here, the appellant has also chosen to affirm the contract and sue for fraudulent misrepresentations. Accordingly, the action is one in tort, and section 25-2102, MCA, applies. torts may be tried That statute provides: in the county where "Actions for the tort was committed, subject, however, to the power of the court to change the place of trial as provided in this code." Appellant contends the tort was continuous in nature and that, therefore, according to section 25-2-102, IUICA, Stillwater County is not the proper place for trial. The general rule of numerous times by this Court. venue has been reiterated In Foley v. General Motors Corporation (1972), 159 Mont. 469, 499 P.2d 774, 775-776, we held: "Thus the general rule governing venue of civil actions is that the action shall be tried in the county in which the defendants or any one of them reside at the commencement of the action. "In order to maintain suit in another county than that of defendant's residence, plaintiff must clearly show facts relied upon to brinq the cause within one of the exce~tionsto the general rule. Hidden Hollow Ranch v. Collins, 146 Mont. 321, 406 P.2d 365; Rapp v. Graham, 145 Mont. 371, 401 P.2d 579." (Emphasis added. ) A Also, in Rapp v. Graham (1965), 145 Mont. 371, 373-374, 401 P.2d 579, 581, this Court emphasized provisions creating exceptions to that, " [s]tatutory the general rule recognizing a defendant's privilege to be sued in his own county will not be given a strained or doubtful construction." From the authority cited above, it is apparent the general rule of venue shall be applied unless a clear reason for an exception appears. In this case, a clear reason does not appear. Appellant's contention that Stillwater County is not the proper place for trial is unsupported by the facts--that is, the defendants all resided in Stillwater County and they were served notice in Stillwater County. Further, the contract was entered into in Stillwater County, no place of performance was mentioned in the contract, and payment upon the contract was made in Stillwater County. These facts illustrate every aspect of the transaction was initiated in Stillwater County. It is clear from these facts that the entire action culminated in Stillwater County. The alleged misrepresen- tations, the alleged fraud and alleged transpired, if at all, in Stillwater County. deceit all The tort was committed, if at all, in Stillwater County. Even under section 25-2-102, MCA, which is an exception to the general rule of venue, appellant's contention that the continuous nature of the tort makes Stillwater County an improper place for trial does not stand up. First, the tort was committed, if at all, at the time of the auction and sale in Stillwater County. Second, since section 25-2-102, MCA, is an exception to the general rule of venue, it must be cautiously applied. The Texas Supreme Court, in Ryan Mortg. Investors v. Lehmann (Texas 1976), 544 S.W.2d 456, 459, reiterated the general rule and the manner in which exceptions should apply when it recognized the rule enunciated in Goodrich v. Superior Oil Co. (1951), 150 Tex. 159, 237 S.W.2d 969, 972, and stated: "The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear." Finally, in Neely v. Steinbach (1967), 149 Mont. 119, 423 P.2d 584, 586, this Court emphasized that, "[glranting a change of venue lies in the sound discretion of the District Court, and in the absence of manifest discretion, the decision of abuse of this the court below must stand. Little v. Strobel, 136 Mont. 272, 346 P.2d 971." Appellant's final contention is that the District Court erred when it granted a change of venue because the defendants had failed to present pleadings or evidence to support their motion. competent This Court does not need address this contention because appellant failed to present this issue for review on the trial court level. Rules'8(c) and 12(b), t4.R.Civ.P. Chadwick v. Giberson (1980), - Mont. 1215, 37 St.Rep. 1523, 1726, we held: , In 618 P.2d 1213, "However, it is a well-settled rule of law that alleged error as to issues not raised in trial court will not be considered on appeal." See also, State v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129; Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146 Mont. 374, 406 P.2d 822. The order of the District Court is affirmed. Justice We Concur: 3.A&& wa3 LUeeQ Chief Justice
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