Summary
In Spencer the plaintiff filed an action against Flathead County and the State in Lincoln County alleging wrongful arrest and invasion of privacy in Lincoln County on a Flathead County warrant.
Summary of this case from Wentz v. Montana Power Co.Opinion
No. 84-122.
Submitted on Briefs May 31, 1984.
Decided September 27, 1984.
Appeal from the District Court of Lincoln County. Nineteenth Judicial District. Hon. Robert M. Holter, Judge Presiding.
Murphy, Robinson, Heckathorn Phillips; Ted Lympus, County Atty., Murray, Kaufman, Vidal Gordon, Kalispell, for defendants and appellants.
Sverdrup Spencer, Libby, for plaintiffs and respondents.
Flathead County and the State of Montana appeal from an order of the Lincoln County District Court denying their request for a change of venue from Lincoln County to Flathead County. The trial court held that it was proper to bring this action in Lincoln County as that is where plaintiff Gary Lee Spencer was mistakenly arrested. We affirm.
Venue in actions brought by nongovernmental entities against counties is determined by Section 2-9-312(2), MCA, which establishes venue in either the county where the cause of action arose, or where the county being sued is located.
This lawsuit, filed in Lincoln County after Gary Lee Spencer was arrested at his home in Lincoln County, charges the defendants with wrongful arrest and invasion of privacy. Flathead County had issued a warrant for his arrest after receiving erroneous information from the Parent Locator Service of the State of Montana, concerning a nonsupport claim against another person named Gary Lee Spencer. Upon discovering the mistake, the charges against plaintiff were dismissed.
Before trial, the defendants filed a motion seeking a change in venue from Lincoln County to Flathead County, claiming that Section 25-2-106, MCA, controls the venue of actions brought by nongovernmental entities against counties, and establishes venue exclusively where the county being sued is located. However, as we held in Hutchinson v. Moran (Mont. 1983), [ 207 Mont. 330,] 673 P.2d 818, 40 St.Rep. 2081, the authority of a private entity to sue a county now exists solely by virtue of 1972 Mont. Const., Art. II, section 18, and the venue of such actions is determined by the more recently enacted Section 2-9-312(2), MCA. This new venue statute, enacted in 1973 states:
"(1) Actions against the State shall be brought in the county in which the cause of action arose or in Lewis and Clark County. In addition, a resident of the State may bring an action in the county of his residence.
"(2) Actions against a political subdivision shall be brought in the county in which the cause of action arose or in any county where the political subdivision is located."
Counties are specifically included within the definition of a "political subdivision" by Section 2-9-101(5), MCA.
In suits brought by private entities against counties, the new venue statute, Section 2-9-312(2), MCA, supersedes the venue provision contained in Section 25-2-106, MCA, and exclusively determines the venue of such actions. Hutchinson v. Moran, supra.
The new venue statute gives the plaintiffs in this action the option of suing Flathead County in either the county where the cause of action arose or in Flathead County. The plaintiffs properly argue that the cause of action arose in Lincoln County. Where a cause of action is to be determined by inquiring where the act or breach occurs which creates the necessity for bringing the suit. Bergin v. Temple (1941), 111 Mont. 539, 111 P.2d 286. In this case, the act giving rise to the complaint — the allegedly illegal arrest — occurred in Lincoln County, and that is where the cause of action arose.
Under the more recent statute, Section 2-9-312(2), MCA, venue in this action is proper in either Lincoln County or Flathead County. The plaintiffs chose Lincoln County.
The order of the Lincoln County District Court denying Flathead County's request for a change of venue is affirmed.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, SHEEHY and MORRISON concur.