DML8/23/2005
ne County may be a proper venue for DML, it is not a proper venue for South Dakota Junga Juice and MTAZ because they have no connection with Yellowstone County. They argue, pursuant to § 25-2-116, MCA, that they are entitled to a change of venue to Missoula, because for three out of the four original Plaintiffs, Missoula is the proper venue. They argue that judicial economy is served by having all claims tried in Missoula.
The general rule, contained in § 25-2-118, MCA, provides that the proper place of trial for civil actions is the county in which the defendant resides. Section 25-2-122(1)(b), MCA, provides that venue for tort claims or interrelated claims of tort and breach of contract may be brought in any county where the tort was committed, or where the contract was to be performed. If venue is proper in more than one county, an action brought in any proper county determines the venue. Section 25-2-115, MCA.
Section 25-2-116, MCA, provides:
In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.
Here, one of the four contracts was to be performed in Yellowstone County and the other three were to be performed in other counties. Further, Junga Juice/Fulbrights reside in Missoula and their business office is located in Missoula. Thus, Missoula County is an appropriate venue for all parties. In this case, DML, South Dakota Junga Juice, and MTAZ chose to join together in an action against Junga Juice/Fulbrights, but chose a venue that was improper for three out of the four original Plaintiffs.
DML, South Dakota Junga Juice, and MTAZ assert that § 25-2-116, MCA, does not apply and cite Liang v. Lai, 2004 MT 188, 322 Mont. 199, 94 P.3d 759, and Wentz v. Montana Power Co. (1996), 280 Mont. 14, 928 P.2d 237, in support of their argument. These cases are inapposite.
In Liang, we determined that § 25-2-116, MCA, did not apply because the defendant was not entitled to a change of venue of any claim. Liang, 19. Here, however, Defendants are entitled to a change of place of trial on three of the four claims. In Wentz, our holding that § 25-2-116, MCA, did not apply was based on § 27-1-501(2), MCA, which mandates wrongful death and survivorship actions be combined in one legal action. Thus, in that instance, venue was proper in more than one place on both claims. We went on to state that we were not commenting on "the sorts of cases to which § 25-2-116, MCA, might apply." Wentz, 280 Mont. at 22, 928 P.2d at 241-42.
By the words of § 25-2-116, MCA, "a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action." This statute contemplates a multiple claim situation in which the county where the plaintiff files is proper for one claim but not for one or more of the others. As recognized by the Evidence Commission Comments to § 25-2-116, MCA, this Court has ruled consistently that a defendant entitled to a change of venue on one claim should have it on the entire action. See Yore v. Murphy (1891), 10 Mont. 304, 25 P. 1039; Heinecke v. Scott (1933), 95 Mont. 200, 26 P.2d 167; Beavers v. Rankin (1963), 142 Mont. 570, 385 P.2d 640. Here, Plaintiffs South Dakota Junga Juice and MTAZ attempted to control venue by combining their claims with those of DML which, if allowed, would have the effect of choosing a place of trial other than at the normal situs which would
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