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Sprinkle v. Burton12/27/1996
, 877 P.2d 1008, 1012-13. Our decision in Torres was premised in part on the rule of finality of dismissals with prejudice set out in Schuster v. Northern Co. (1953), 127 Mont. 39, 45, 257 P.2d 249, 252, a civil case.
Accordingly, to the extent that it based its decision to deny Dr. Burton's motion for change of venue on the basis that, having had the jurisdiction to decide the Rule 26(b)(4)(C) issue in the underlying lawsuits prior to their dismissal with prejudice, that jurisdiction simply continued into the new, instant litigation or was retained following such dismissal, the District Court was in error. To the contrary, having dismissed the underlying lawsuits with prejudice, any authority which the trial court derived from its jurisdiction in such cases ended with their dismissal.
In so ruling we neither explicitly nor implicitly decide any other issue as to the effect of the trial court's dismissal with prejudice of the underlying litigation on the merits of Plaintiffs' instant lawsuit. The only issue properly before us on appeal and, consequently, the only issue which we are deciding is the venue question.
That brings us to the central issue. On the facts of this case, independent of the underlying litigation, was Cascade County a proper venue for Plaintiffs' present action against Dr. Burton?
It is axiomatic "that venue will be 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." . . . Moreover, " he averments of the complaint will be taken as true in considering the motion. . . ."
Pegasus, 889 P.2d at 119 (citations omitted). If an action is filed in a county which is not designated as a proper place of trial, a defendant may move for a change of venue. Sections 25-2-114 and 115, MCA.
As the starting point for our analysis of venue questions we look to ยง 25-2-118, MCA, which provides, in pertinent part:
Unless otherwise specified in this part:
(1) except as provided in subsection (3) [not at issue here], 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;
In this case it is not disputed that at the time Plaintiffs' instant complaint was filed and at the time Dr. Burton first appeared in this action, he resided in Missoula County. Accordingly, without more, Dr. Burton was entitled to have venue of Plaintiffs' suit transferred to Missoula County. Our analysis does not end there, however.
It is also black-letter law that when a suit is properly commenced in more than one county and the plaintiff files in one of the permissible counties, the defendant may not change the venue of the action to a different county, even if the county preferred by the defendant is also a proper place for trial. Section 25-2-115, MCA; Melroe v. Doyle (1989), 239 Mont. 524, 525, 781 P.2d 1134, 1135 (citing Petersen v. Tucker (1987) 228 Mont. 393, 396, 742 P.2d 483, 484-85). It follows, then, that we must next address whether Cascade County is also a permissible county in which Plaintiffs could sue Dr. Burton.
On appeal, Plaintiffs maintain that Cascade County is a permissible county in which to sue Dr. Burton. First, Plaintiffs argue that because BN hired Dr. Burton to provide expert testimony in Cascade County, the Cascade County courts are the proper courts to rule on a challenge to the doctor's fees for that testimony under Rule 26(b)(4)(C). Noting that this case does not involve any issue of what Dr. Burton has charged or would charge BN for his testimony at trial, assuming that he would
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