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DML8/23/2005
place for trial for each of the claims, then a motion for change of venue must be denied. Neither of these situations is present here.
Section 25-2-116, MCA, would apply in a third situation where (1) an action consists of multiple claims; (2) the venue statutes designate more than one proper place for trial for one or more claims; and (3) the action is brought in a county designated as proper for at least one of the claims, but not all of the claims. This is the situation in the present case. First, there are multiple claims (brought by multiple parties in this case). Second, the statutes provide for venue in more than one county--for example, DML's claims may be brought in either Yellowstone or Missoula County. Third, the action was brought in Yellowstone County, which is a proper place for trial of DML's claims, but is not a proper county for the claims relating to the other franchise agreements. Because the claims relating to the other franchisees were brought in a county not designated as a proper county for those claims, the Fulbrights/Junga Juice would be entitled to a change of venue on those claims to Missoula County, which is a proper place for trial. See § 25-2-114, MCA. As a result, under § 25-2-116, MCA, because the Fulbrights/Junga Juice are entitled to a change of venue for the other franchisees' claims, the Fulbrights/Junga Juice are entitled to a change of venue on the entire action, including the DML claims (subject only to the "separation of claims for trial," a matter not at issue here).
Based on the above somewhat lengthy interpretation and application of the venue statutes to the facts of this case, I agree with the Court's statutory interpretations as stated at the outset. However, it is my view that Wentzand Liang significantly cloud the picture. The franchisees rely on those cases in support of their contention that § 25-2-116, MCA, does not apply here because the Fulbrights/Junga Juice have never asserted that the franchisees combined spurious claims to manipulate venue.
In Wentz, the plaintiff brought an action against the defendants in Yellowstone County alleging the defendants committed various acts of medical negligence resulting in her husband's death and asserting wrongful death and survivorship claims. The defendants all resided, and the alleged negligent acts occurred, in Rosebud County. The husband eventually died in a hospital in Yellowstone County. The defendants moved for a change of venue to Rosebud County, which the district court denied. Wentz, 280 Mont. at 16, 928 P.2d at 238. On appeal, we first concluded that, as previously held in Gabriel v. School Dist. No. 4, Libby (1994), 264 Mont. 177, 180-81, 870 P.2d 1351, 1352-53, a wrongful death claim arises for venue purposes in the county in which the death occurs. Thus, a proper place for trial of the wrongful death claims in that case was Yellowstone County. Wentz, 280 Mont. at 18-19, 928 P.2d at 239-40. Furthermore, pursuant to Montana's remedies statutes--as interpreted in Gabriel--wrongful death and survivorship actions must be combined in one legal action and, where the two claims properly may be brought in different counties, the plaintiff's choice of venue as to the wrongful death action precludes a successful motion to change venue to the county where the survivorship action arose. Wentz, 280 Mont. at 18, 928 P.2d at 239.
We then proceeded to address the defendants' argument that they were entitled to a change of venue under § 25-2-116, MCA (Wentz, 280 Mont. at 21-22, 928 P.2d at 241-42), beginning with a discussion of the Evidence Commission's comments to § 25-2-116, MCA. The comments state that the statute is a codification of prior Montana case law involving venu
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