MCALEAR v KASAK
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No. 86-255 TN THE SUPREME COURT OF THE STATE OF MONTANA 1987 ALLEN L. McALEAR, Plaintiff and Appellant, -VS- DEBORAH KASAK, Defendant and Respondent. FROM: h District Court of t h e ~ i t e e n t h Judicial District, In and for the County 0 Gallatin, The Honorable Roy Rodeghiero, Judge presiding. H COUNSEL OF RECORD: For Appellant: Allen L. McAlear, Bozeman, Montana For Respondent: James P. Reynolds, Helena, Montana Submitted on Briefs: Nov. 13, 1986 Decided: January 13, 1987 Filed: Cl . erk Mr. Justice Flilliam E. Hunt, Sr. , delivered the Opinion of the ~ourc. This is an appeal from an order granted by the District Court of the Fourteenth Judicial Dj-strict, Meagher County, Plaintiff appeals. changing venue in a tort action. We affirm. There is one issue on appeal: Did the District Court err in changing venue? Plaintiff Allen YcAlear filed an action for defamation against Deborah Kasak. 1a.w office. Kasak had worked briefly in McAlear's She left her employment and filed an action against McAlear with the Fuman Rights Commission alleging sexual harassment. After Commission, filing she her complaint filed Standards Division. a wage with the complaint Human with the Rights Lahor In explaining her reason for quitting or discharge, she set forth her allegations of sexual harassment by McAlear. McAlear, pro se, brought an action against her for defamation based on the allegations in her wage complaint. McAlear brought the suit in Meagher County. Kasak, who currently lives in Pennsylvania, filed a motion to dismiss and a motion for change of venue. The District Court granted the motion for change of venue and moved the action to the Eighteenth Judicial District, Gallatin County, where McAlear's office is located, and, where Kasak worked while she was employed by McAlear. on the motion to dismiss. The district judge did not rule McAlear appeals the order changing venue. McAlear contends that because Kasak is a nonresident of the State of Montana, he may select any county as the site - 2 - He relies on S for his action, and she may not object. 25-2-118, MCA, which states: Unless otherwise specified in this part: (1) except as provided in subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action; (2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint; (3) the proper place of trial of an action brought pursuant to Title 40, chapter 4, is the county in which the petitioner has resided during the 90 days preceding the commencement of the action. We wish to call attention to the first line of the statute, "Unless otherwise specified in this part . . ." The remainder of part 2 deals with the proper place of venue for specific types of actions. "Defamation is made up of the twin torts of libel and slander .. . I' Presser, Law of Torts, at 737 (5th Ed. 1984). Section 25-2-122, MCA, deals specifically with tort actions. It provides: The proper place of trial for a tort action is: (1) the county in which the defendants, or any of them, reside at the commencement of the action; or (2) the county where the tort was committed. 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 where the contract was to be performed. In this case, the defendant does not reside within the State of Montana. The tort was committed, if at all, in Bozeman where McAlear has his office and where the alleged damage to his reputation occurred. action was filed in Meagher County. It is unclear why the It apparently has no relation to any person or occurrence in this action. The general. rule is that the defendant is entitled to be sued in the county of his residence. Section 25-2-118(1), MCA; Letford v. Kraus (Mont. 19831, 672 P.2d 265, 4 0 St.Rep. 1802. The d e f e n d a n t State of Montana T a s s i e v. 807. j.n and t h i s case i s a nonresident of may be C o n t i n e n t a l O i l Corp. However, sued in any (D. Mont. proper forum. A tort county. 1 9 6 4 ) , 228 F.Supp. we have n e v e r h e l d t h a t a p l a i n t i f f absolute choice of the has an a c t - i o n may b e b r o u g h t i n e i t h e r t h e county o f t h e d e f e n d a n t ' s r e s i d e n c e , o r t h e c o u n t y where t h e t o r t o c c u r r e d . 320, 3 2 3 P.2d 269. S i e f e r t v. Geh.1.e (1958) , 133 Mont. Where p l a i n t i f f s f i l e t h e a c t i o n i n an defen.dants may change venue t o any p r o p e r improper county, county. Dal.ton v . C a r r and Sons ( D . Mont. 726. In this case, plaintiff improper s i t e f o r venue. chose W Concur: e county that is an Defendant moved f o r and r e c e i v e d a change o f venue t o a p r o p e r county: occurred. a 1 9 8 6 ) , 630 F.Supp. t h e s i t e where t h e t o r t The D i s t r l c t C o u r t d i d n o t err.
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