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Sprinkle v. Burton12/27/1996
uch a physician may be appointed by the court or agreed upon by the parties to conduct a physical or mental examination of a party, it cannot be argued that the doctor must obey the mandates of superiors or a legal mandate and not exercise judgment or discretion in the conduct of the examination.
As to that part of § 3-1-111(5), MCA, which gives the court control over "persons in any manner connected with a judicial proceeding before it," as discussed earlier in this opinion, Plaintiffs' lawsuits having been dismissed with prejudice, Dr. Burton was no longer before the original trial court.
Accordingly, even assuming Dr. Burton was an "officer of the court" we conclude that § 3-1-111(5), MCA, does not provide authority for the court's control over the matter of his deposition charges in this case. Moreover, we do not read any provision of § 3-1-111(5), MCA, as establishing venue for an independent cause of action involving an issue that is not pending before the court. Section 1-2-101, MCA.
Plaintiffs' also argue that if the venue statutes apply at all, § 25-2-125, MCA, is the appropriate statute. That statute provides that the proper place for the trial of an action against a person specially appointed to execute his duties is the county where the cause or some part thereof arose. The short answer to this contention is that Dr. Burton was not appointed by the court; he conducted his examination by agreement of counsel. Accordingly, we conclude that on the facts of this case § 25-2-125, MCA, does not make Cascade County a permissible place of trial for the instant action against Dr. Burton.
Finally, Dr. Burton argues that although Plaintiffs' complaint is not premised on a contract theory, § 25-2-121, MCA, is nevertheless, applicable. He contends that there was an "oral contract" between himself and Plaintiffs' counsel that he appear in Missoula and answer deposition questions and that, in return, he would be compensated therefor. Accordingly, as the place of performance of the oral contract, § 25-2-121(2)(b), MCA, dictated that venue was proper in Missoula County as the county where Dr. Burton's labor or services were performed under the oral contract. See, also Schutz Foss Architects v. Campbell (1990), 243 Mont. 194, 793 P.2d 821. Thus, according to Dr. Burton, § 25-2-121(2)(b), MCA, presents an alternative authority to § 25-2-118(1), MCA, supporting his motion for change of venue.
In response to this argument, Plaintiffs maintain that there was no contract between them and Dr. Burton; that they did not retain him for any purpose; that, to the contrary, he was hired by BN to gather evidence and testify against them; and that as a consequence of his involvement in the underlying litigation, they were compelled to take his deposition in order to adequately prepare to meet his testimony at trial. Plaintiffs' contend that, while they never expected to depose Dr. Burton for free, they were, nevertheless only compelled to pay a "reasonable" charge under Rule 26(b)(4)(C). Alternatively, Plaintiffs argue that even if there was a contract, since no place of performance was specified and since the principal activity under the contract was to take place in Cascade County when Dr. Burton testified, under § 25-2-121(1)(b)(ii), MCA, venue was proper there.
We do not find it necessary to resolve this argument one way or the other. Accepting at face value Plaintiffs' contention that there was no contract between them and Dr. Burton, and having heretofore rejected Plaintiffs' arguments for venue in Cascade County on the basis of Rule 26(b)(4)(C), § 3-1-111(5), MCA, and their "officer of the court" theory, § 25-2-118(1), MCA, remains the go
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