Spencer v. Flathead County , 212 Mont. 399 ( 1984 )

No. 84-122
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
GARY LEE SPEIJCER and GAYLE
SPENCER, husband and wife,
Plaintiffs and Respondents,
FLATHEAD COUNTY, a political
subdivision of the State of
Montana, and STATE OF MONTANA,
Defendants and Appellants.
APPEAL FROM: District Court of the Nineteenth Judicial ~istrict,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Murphy, Robinson, Heckathorn & Phillips; Kalispell,
Montana
Ted Lympus, County Attorney, Kalispell, Montana
Murray Kaufman, Vidal & Gordon, Kalispell, Montana
-me&.-:, : : L ! -
For Respondents:
Sverdrup & Spencer, Libby, Montana
Submitted on Briefs: May 31, 1984
Decided: September 27, 1984
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Flathead County and the State of Montana. appeal from an
order of the Lincoln County District Court denying their
request for a change of venue from Lincoln County to Flathead
County. The trial court held that it was proper to bring
this action in Lincoln County as that is where plaintiff Gary
Lee Spencer was mistakenly arrested. We affirm.
Venue in actions brought by nongovernmental entities
against counties is determined by section 2-9-312(2), MCA,
which establishes venue in either the county where the cause
of action arose, or where the county being sued is located.
This lawsuit, filed. in Lincoln County after Gary Lee
Spencer was arrested at his home in Lincoln County, charges
the defendants with wrongful arrest and invasion of privacy.
Flathead County had issued a warrant for his arrest after
receiving erroneous information from the Parent Locator
Service of the State of Montana, concerning a nonsupport
claim against another person named Gary Lee Spencer. Upon
discovering the mistake, the charges against plaintiff were
dismissed.
Before trial, the defendants filed a motion seeking a
change in venue from Lincoln County to Flathead County,
claiming that section 25-2-106, MCA, controls the venue of
actions brought by nongovernmental entities against counties,
and establishes venue exclusively where the county being sued
is located. However, as we held in Hutchinson v. Moran
(Mont. 1983), 673 P.2d 818, 40 St.Rep. 2081, the authority of
a private entity to sue a county now exists solely by virtue
of 1972 Mont. Const., Art. 11, 5 18, and the venue of such
actions is determined by the more recently enacted section
2-9-312(2), MCA. This new venue statute, enacted in 1973
states:
"(1) Actions against the State shall be brought in
the county in which the cause of action arose or in
Lewis and Clark County. In a.ddition, a resident of
the State may bring an action in the county of his
residence.
"(2) Actions against a political subdivision shall
he brought in the county in which the cause of
action arose or in any county where the political
subdivision is located."
Counties are specifically included within the definition
of a "political subdivision" by section 2-9-101(5), MCA.
In suits brought by private entities against counties,
the new venue statute, section 2-9-312(2), MCA, supersedes
the venue provision contained in section 25-2-106, MCA, and
exclusively determines the venue of such actions. Hutchinson
v. Moran, supra.
The new venue statute gives the plaintiffs in this
action the option of suing Flathead County in either the
county where the cause of action arose or in Flathead County.
The plaintiffs properly argue that the cause of action arose
in Lincoln County. Where a cause of action arises is to be
determined by inquiring where the act or breach occurs which
creates the necessity for bringing the suit. Bergin v.
Temple (1941), 111 Mont. 539, 111 P.2d 286. In this case,
the act giving rise to the complaint--the allegedly illegal
arrest--occurred in Lincoln County, and that is where the
cause of action arose.
Under the more recent statute, section 2-9-312(2), MCA,
venue in this action is proper in either Lincoln County or
Flathead County. The plaintiffs chose Lincoln County.
The order of the Lincoln County District Court denying
Flathead County's request for a change of venue is affirmed.
We Concur:
'~~vP~QJLc~cPo
Chief Justice