No. 81-255 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1981

RUSSELLWOOLCOCK,d/b/a SPRINGMOUNTAIN RANCH, PlaintiffandAppellant,

BEARTOOTH RANCH, adissolved Montana Corporation,BEARTOOTH RANCH, apartnership; VERNON SANDERS,GEORGEELLIS,JOHN DOE I, JOHNDOE 11,et al., Defendantsand Respondents.

Appeal from: District Court of the Eighth JudicialDistrict, In and for the County ofCascade. Honorable JohnMcCarvel,Judgepresiding. Counsel of Record: For Appellant: Jardine,Stephenson,Blewett & Weaver, Great Falls,

Montana For Respondents: Anderson, Brown, Gerbase, Cebull & Jones,Billings,

Montana

Submitted onbriefs: September 3,1981 Decided: 

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' ClerkMr. JusticeGene B. Daly delivered theOpinion of the Court. This is an appeal from a ruling intheDistrictCourt of the Eighth Judicial District of the Stateof Montana, in and for the County of Cascade, where the court granted defendants' motion for change of venue and moved the action from Cascade County toStillwater County. Plaintiff and appellant, Russell Woolcock, d/b/a Spring Mountain Ranch, filed a complaint in Cascade County seeking both compensatory and punitive damamges. In his complaint, Woolcock alleged that the defendants intentionally, falsely and fraudulentlymade representations regarding a bull named Negotiator 510L. The complaint further allegesthatWoolcock relied on thesemisrepresentations and purchased the bull at an auction held by the Beartooth Ranch on October 10 and 11, 1979. The defendants moved for a change of place of trial from Cascade County to Stillwater County. The District Court granted the motion on the grounds that Stillwater County was the residence and principal place of business of the defendants, was theplace of the contract'sperformance, and was the place of the occurrence of the alleged torts. Plaintiff and appellantappealstheorder changing theplace of trialand presents the following issues: 1. Does the complaint state a contract claim or a tortclaim? 2. Is Stillwater County the proper place for trial if the action is intort? 3. Was sufficientevidencepresented totheDistrict Court to support the change of venue motion?Appellant contends that his action is in tort, and, consequently, the contract venue statute is inapplicable. Appellant supports this contention by referring to specific language used in the complaint, such as: 

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# . .. the representations alleged in paragraph I11 hereof were intentionally, falsely and fraudulently made for the purpose of causing plaintiff and the public to believe 

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# . . that Negotiator 510L was the sole and only progeny of Justamere RN890C 

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# .."According toappellant, thislanguage, coupled with the fact that there has been no action to rescind the contract, is sufficienttosupport an action intort. In Stateex rel. Dimler v. DistrictCourt (1976), 170 Mont. 77, 550 P.2d 917, thisCourt stated: 

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. . Here, plaintiffs chose to affirm the contract and sue for fraudulent representationspreceding the contract, representations which plaintiffsalleged induced them tosign the contract for purchase of defendants' home. "That such course of action is permissible and infactis not a contract actionhas long been recognized in the law. 37 Am.Jur.2dI Fraud and Deceit, S 332, p. 439, states in pertinentpart: 

### "'A traditional remedy ordinarily available to a person who has parted with something of value as a result of a contract or transaction induced by fraud is thathemay retain what he has received and bring an action at law to recover the damages sustained. Thus, apersonwho hasbeen injured by thefraud of another or others, by either a party or parties toa transaction or a third party or third parties committing fraudulent acts involving or bringing about the negotiation of a transaction, such transaction usually but not necessarily involving business or commercial dealings, may maintain an action at law in tort to recover damages for the injury received from the fraud and deceit perpetrated by such other or others. 

## - The foundationof theactionisnot contract, but tort.

# .. [Emphasis inDimler.] 

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.. 37 Am.Jur.2dr Fraud and Deceit, S 333,

-3-p. 442,continues the discussion: "'In accordance with the right to bring an action for deceit generally, a buyer who has been induced by the fraud of the seller to 

## -- purchase real or personal propert1 may ordinarily maintain an action for, or in the nature of, deceit to recover damages resulting from the fraud 

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"Applying the authorities discussed to plaintiffs' allegations of misrepresentation on the part of defendants, these conclusions can be made as to plaintiffs' cause of action in the instant case: The cause of action arises from representations which plaintiffs claim induced the execution of the contract, section 13-308, R.C.M. 1947. Such representations necessarily contain an obligation to act in good faith. Such representations if knowingly false, as alleged, would be a

'breach of an obligation' as contemplated by section 17-208. Additionally, a cause of action for fraudulent inducement can be in tort and thus independent of the contract and therefore affirmance of the contract does not automatically preclude suit in tort for fraud. Sinceplaintiffs' cause of action for fraud is based in tort,not contract, section 17-208, R.C.M. 1947, is not controlling and plaintiffs can properly pray for punitive damages." 550 P.2d at 920-921. Here, the appellant has also chosen to affirm the contract and sue for fraudulent misrepresentations. Accordingly, the action is one in tort, and section 25-2- 102, MCA, applies. That statute provides: "Actions for torts may be tried in the county where the tort was committed, subject, however, to the power of the court to change theplace of trial as provided in this code." Appellant contends the tort was continuous in nature and that, therefore, according to section 25-2-102, IUICA, Stillwater County is not the proper place for trial. The general rule of venue has been reiterated numerous times by this Court. In Foley 

### v. General MotorsCorporation (1972),159Mont. 469, 499 P.2d 774, 775-776,we held: "Thus the general rule governing venue of civil actions is that the action shall be tried in the county in which the defendants or any one of them reside at the commencement of the action.

"In order to maintain suit in another county than that of defendant's residence, plaintiff must clearly show facts relied upon to brinq the cause within one of the exce~tions to the
A general rule. Hidden HollowRanch v. Collins, 146 Mont. 321, 406 P.2d 365; Rapp v. Graham, 145 Mont. 371, 401 P.2d 579." (Emphasis added.) Also, in Rapp v. Graham (1965), 145Mont. 371, 373-374, 401 P.2d 579, 581, this Court emphasized that, 

### "[s]tatutory provisions creating exceptions to the general rule recognizing a defendant's privilege to be sued in his own county will not be given a strained or doubtful construction." From the authority cited above, it is apparent the general rule of venue shallbe applied unless a clear reason for an exception appears. In this case,a clear reasondoes not appear. Appellant's contention that Stillwater County is not the proper place for trial is unsupported by the facts--that is, the defendants all resided in Stillwater County and they

were served notice in Stillwater County. Further, the contract was entered into in Stillwater County, no place of performance was mentioned in the contract, and payment upon the contract was made in Stillwater County. These facts illustrate every aspect of the transaction was initiated in Stillwater County. It is clear from these facts that the entire action culminated in Stillwater County. The alleged misrepresen-tations, the alleged fraud and alleged deceit all transpired, if at all, in Stillwater County. The tort was committed, if at all, in Stillwater County. Even under section 25-2-102, MCA, which is an exception to the general rule of venue, appellant's contention that the continuous nature of the tortmakes Stillwater County an improper place for trial does not stand up. First, the tortwas committed, if at all,at the time of the auction and sale in Stillwater County. Second, since section 25-2-102, MCA, is an exception to the general rule of venue, it must be cautiously applied. The Texas Supreme Court, in RyanMortg. Investorsv. Lehmann (Texas1976), 544 S.W.2d 456, 459, reiterated the general rule and the manner inwhich exceptions should apply when it recognized the rule enunciated in Goodrich v. Superior Oil Co. (1951), 150 Tex. 159, 237 S.W.2d 969, 972,and stated: "The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exceptionmust clearly appear." Finally, in Neely 

### v. Steinbach (1967), 149 Mont. 119, 423 P.2d 584, 586, this Court emphasized that, "[glranting a change of venue lies in the sound discretion of the District Court, and in the absence of manifest abuse of this discretion, the decision of the court below must stand. Little v. Strobel, 136Mont. 272, 346 P.2d 971." Appellant's final contention is that the District Court erred when it granted a change of venue because the defendants had failed to present pleadings or competent evidence to support their motion.This Court does not need address this contention because appellant failed to present this issue for review on the trial court level. Rules'8(c) and 12(b), t4.R.Civ.P. In Chadwick v. Giberson (1980),

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## , 618 P.2d 1213, 1215, 37 St.Rep. 1523, 1726, we held: "However, it is a well-settled rule of law that alleged error as to issues not raised in trial court will not be considered on appeal." See also, Statev. Armstrong (1977),172Mont. 296, 562 P.2d 1129; Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146Mont. 374, 406 P.2d 822. The order of the District Court is affirmed.

Justice

We Concur: 

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# wa3 LUeeQ Chief Justice