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Sprinkle v. Burton12/27/1996
53 St.Rep. 1441
Submitted on Briefs October 10, 1996.
James Burton, M.D. (Dr. Burton) appeals from an April 4, 1996 order of the Eighth Judicial District Court, Cascade County, denying his motion for change of venue. We reverse and remand.
Background
The record before us on appeal discloses that Plaintiffs Johnathan B. Sprinkle and Roger Golden, former employees of Burlington Northern Railroad, (BN), sued the railroad in separate actions under the Federal Employers' Liability Act (FELA) in Great Falls, Cascade County, Montana. Plaintiffs claimed damages for back injuries which they sustained in the course of their employment.
Pursuant to Rule 35, M.R.Civ.P., BN hired Dr. Burton as an expert witness to conduct independent medical examinations of both Sprinkle and Golden. Those examinations were conducted in Missoula, Missoula County, Montana, the location of Dr. Burton's professional office and residence. Dr. Burton charged BN $125.00 per hour for his services in this regard.
During the course of the litigation, by agreement of counsel, Plaintiffs' counsel deposed Dr. Burton in Missoula, Montana. Dr. Burton charged Plaintiffs' counsel $500.00 per hour for his time spent in the taking of his depositions. Believing that they had been overcharged by Dr. Burton, both Sprinkle and Golden filed motions in their respective cases seeking adjustment of his charges. It is undisputed that Dr. Burton never came to Cascade County in connection with either suit; all of his activities in connection with these lawsuits took place in Missoula.
Plaintiffs' FELA actions were both settled before trial and, by stipulation and order, each case was dismissed with prejudice, Sprinkle's on May 17, 1995 and Golden's on January 2, 1996. Neither of Plaintiffs' motions for adjustment of Dr. Burton's charges were ruled upon by the trial court prior to the case being dismissed with prejudice.
Subsequently, on January 4, 1996, Plaintiffs, by their counsel, filed suit against Dr. Burton in Cascade County seeking a ruling from the District Court that the doctor's charges were unconscionable and unenforceable. Plaintiffs' suit in Cascade County was premised on the court having continuing jurisdiction over Dr. Burton as an officer of the court or, alternatively, that Dr. Burton's fees were not reasonable as required by Rule 26, M.R.Civ.P.
Dr. Burton moved to change venue from Cascade County to Missoula County, the county of his residence and the county where his depositions were taken. The District Court denied Dr. Burton's motion for change of venue. This appeal followed.
Discussion
The issue on appeal is whether the District Court erred in denying Dr. Burton's motion for change of venue on the facts of this case. We conclude that the court erred.
Whether a county is a proper place for trial is a question of law involving the application of the venue statutes to pleaded facts. State v. Pegasus Gold Corp. (1995), 270 Mont. 32, 35, 889 P.2d 1197, 1199 (citing Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245). Accordingly, our review of a district court's grant or denial of a motion for change of venue is plenary; we simply determine whether the court's ruling was legally correct. Pegasus, 889 P.2d at 1199 (citing Carter v. Nye (1994), 266 Mont. 226, 228, 879 P.2d 729, 730). See, also Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.
In denying Dr. Burton's motion for change of venue, the District Court ruled that under Rule 26(b)(4)(C), M.R.Civ.P., it was obligated to require the
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