No. 85-588 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

CARSON H. VEHRS, JR., 

Plaintiff and Appellant, 

CHARLES F. MOSES AND THE MOSES 

LAW FIRM, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick A. Holt and Dan Torgenrud, Lolo, Montana 

For Respondent: 

Garlington, Lohn & Robinson; Susan P. Roy & Sherman V. 

Lohn, Missoula, Montana 

Submitted on Briefs: Ja.n. 30,1986 

Decided: April 1, 1986 

~iled: APR 1 - 1986 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Plaintiff Carson Vehrs, Jr., appeals the September 3, 

1985, order of the Fourth Judicial District Court granting a 

change of venue from 1lj.ssoula County to Yellowstone County. 

We affirm. 

In March of 1978, Carson Vehrs (Vehrs) retained the 

legal services of Charles Moses (Moses) to defend Vehrs in 

criminal proceedings filed against him in Missoula County, 

Montana, relating to Vehrs' conduct while employed at the 

University of Montana. Vehrs met with Ralph Wright, one of 

Moses' partners, in Missoula County, in order to retain 

Moses. All legal fees paid by Vehrs to Moses were delivered 

to Mr. Wright in Missoula County. 

Vehrs maintained complete innocence on all charges. 

Moses agreed to conduct his defense in a manner which would 

not prejudice Vehrs' statutory right to recover costs and 

expenses resulting from the charges, and if necessary, Moses 

would represent Vehrs in a subsequent civil suit to recover 

Vehrs' costs and damages. 

On October 24, 1978, a jury found Vehrs not guilty on 

the charge of felony theft. Shortly thereafter, a charge of 

official misconduct against Vehrs was dismissed. On 

January 18, 1979, Vehrs pled guilty to a misdemeanor charge 

of selling wine without a license. 

Following termination of the criminal proceedings, Moses 

informed Vehrs that Vehrs was entitled to reimbursement for 

his legal expenses pursuant to S 2-9-305 (4) , MCA, (1978) , 

which states: 

(4) In any action in which a governmental entity employee is a party defendant, 

the employee shall be indemnified by the 

governmental entity employer for any 

money judgments or legal expenses to 

which he may be subject as a result of 
the suit uniess the conduc-t upon which 

the claim is brought did not arise out of 

the course and scope of his employment or 

is an intentional tort or felonious act 

of the employee. 

On October 3, 1979, Moses presented a claim for reimbursement 

to University of Montana legal counsel in Missoula. The 

Board of Regents denied the claim on July 22, 1980. Moses 

informed Vehrs the only remaininq avenue was to file a civil 

suit. 

On February 27, 1981, Moses filed a compla-int on behalf 

of Vehrs in the Fourth Judicial District Court, County of 

Missoula, requesting reimbursement for expenses and damages 

arising out of the criminal proceedings against Vehrs. 

Following discovery and a summary judgment motion by defendants, count I of the complaint, which focused on Vehrs' 

claim to reimbursement under S 2-9-305(4), MCA, was dismissed 

by the district judge in a summary judgment order dated July 

14, 1982. Moses appealed the summary judgment order; this 

Court dismissed the appeal as being premature on November 12, 

1982. 

On July 19, 1983, following hea-ring, count IV of the 

compla.int was dismissed. This order was appealed and affirmed by this Court in Vehrs v. Piquette, Mitchell, et al., 

(Mont. 1984), 684 P.2d 476, 41 St.Rep. 1110. During the 

ensuing months Vehrs attempted to contact 140ses concerning 

the status of the case, but Moses did not respond. The case 

was never set for trial. 

On July 12, 1985, Vehrs filed a legal malpractice action 

in Missoula County against Moses. The complaint alleged 

negligence, breach of contract, breach of fiduciary d.uty, 

constructive frauc?., and willful delay. Some of these acts 

were alleged to have occurred in Missoula. Defendants filed 

a motion for dismissal and change of venue to Yellowstone 
County, the location of Moses1 law office. The district 

judge granted change of venue by order dated September 3, 

1985. 

On appeal, the sole issue is whether the District Court 

erred in granting change of venue to Yellowstone County. 

Although the order granting change of venue was entered 

September 3, 1985, the 1985 amendments to the venue provisions in the Montana Code, effective October 1, 1985, apply 

to this appeal. See Weiss v. State (Mont. 1986) P.2d 

-- , 43 St.Rep. 82. 

The district judge relied primarily upon Whalen v. Snell 

(Mont. 1983), 667 P.2d 436, 40 St.Rep. 1283, in granting a 

change of venue. In Whalen, the issue was proper venue where 

an attorney was suing a former client for non-payment of 

fees. We found venue to be proper in the county where the 

attorney's office was located rather than in the county of 

defendant's residence. 

Vehrs ' complaint sounds primarily in tort, therefore we 

look to 5 25-2-122, MCA, which provides proper venue for a 

tort action to be where defendant resides, or where the tort 

was committed. 

In Whalen, we said: "For the purposes of venue, a tort 

is committed where there is a concurrence of breach of obligation and the occasion of damages." 667 P.2d 437, 40 

St.Rep. 1285. The damages suffered by Vehrs occurred when 

the statute of limitations ran on his statutory right to 

reimbursement for the legal fees he had incurred. 

The location of Moses' alleged. breach of obligation is a 

difficult question. Vehrs' complaint alleges Moses negligently filed a claim with University of Montana legal counsel 

in Missoula rather than with the Department of Administration 

in Helena. Thereafter, Vehrs ' statutory claim for 
reimbursement was dismissed. from the civil suit in P~lj.ssoula 

County as not being within the statute of limitations. Vehrs 

argues Moses' negligence occurred in Missoula, where Moses 

pursued Vehrs' claim for reimbursement. Moses contends any 

alleged tort occurred in Yellowstone County, where preparation for the case occurred, or in Helena, where the claim 

should have been filed. We find venue was proper in 

Yell-owstone County and affirm the District Court. 

If any recovery of Lees could arguably be made under 

S 2-9-305(4), MCA, (1978), a claim would first have to be 

filed with the Department of Administration pursuant to 

S 2-9-301, MCA, (1978). Section 2-9-302, MCA, (1978) provides claim filing is governed by sta.tutes of limitation 

governing other actions. Here, a claim would have to be 

filed within two yea.rs from October 28, 1978, pursuant to 

§ 27-2-211, MCA, (1978). 

The concurrence of damages and the alleged breach of 

duty by Moses occurred on the date the statute of limitations 

ran. Moses may arguably have been negligent in pursuing the 

civil action in Missoula. However, there was no harm until 

the statute of limitations ran on filing a claim in Helena, 

Lewis & Clark County. If there was a concurrence of damages 

and breach of obligation, it was when Moses failed to file in 

Helena and the statute of Limitations ran. A tort, if one 

occurred at all, would have resulted from the inaction in 

Yellowstone County, the site of Moses' law office. 

Affirmed. 
We concur: ./