### No. 80-221 IN THE SUPREME COURT OF THE STATE OF MONTANA

THE STATEOF MONTANA ex rel. COLLEEN KESTERSON, VIRGINIA POLSEN,MELODY NEBEL, BARBARAWOOD, SHERI BARDO, and ANNE KOBYLENSKI, on behalf of themselves and all other persons similarly situated, Relators,

DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTYOF MISSOULA, and the HONORABLE JOHN 

### S. HENSON, Judge thereof, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relators: McClelland Law Offices, Missoula,Montana Arden C.McClelland argued, Missoula,Montana For Respondents: Gough,, Shanahan, Johnson & 

### Waterman,Helena,Montana Ronald Waterman argued, Helena,Montana Boone, Karlberg & 

### Haddon,Missoula,Montana Sam Haddon argued, Missoula,Montana Richard P. 

### Heinz,CountyAttorney, Polson,Montana KurtW. Kroschel,Billings, Montana Hughes, Bennett,Kellner and Sullivan, Helena,Montana Garlington,Lohn and Robinson,Missoula,Montana

Submitted: July 17, 1980 Decided: 

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ClerkMr. Chief Justice Frank I.Haswell delivered the Opinion of the Court.

Relators have applied to this Court for a 

### writof supervisory control, directed to the District Court of the Fourth Judicial District, inand for the County of Missoula, and the HonorableJudge John S. Henson. Relators are plaintiffs inthe DistrictCourt action, and seek to have the proceedings on a motion for a temporary injunctioncontinued inthe District Court, despite an appeal taken to this Court by defendants. This Court ordered an expedited hearing on July 17, 1980. On February 15, 1980, two women residing inLake County and four women residing inMissoula County filed a suit in Missoula County, denominating it a class action. The defendants for purposes of this appeal are Dow Chemical Company, Lake County, the Lake County Weed Board, Missoula County, and the Missoula County Weed Board. A11 plaintiffs a1lege miscarriages, property damage, and other mental and physical injuries as a result of herbicide spraying intheir home environments. Prior tothe hearing on plaintiffs' motion for an injunctionto stop the spraying, defendant Dow Chemical Company moved for a change of venue toLake County as to the claims filed by the two Lake County plaintiffs. Lake County and the Lake County Weed Board moved to change venue to Lake County as to all claims filed against them. Because of uncertainty as to whether this action could be maintained as a class action, a matteryet to be heard, the district judge denied the motions for change of venue, with "leave to refilethe motions 

### if the circumstances later on inthe proceedings should be such that itwould be appropriate." Defendants promptly filedan appeal to this Court from the order denying change of venue and the districtjudge stopped all further proceedings inthe District Court. Plaintiffs, arguing that the judge's order was a nonappealable order, applied to this Court for a 

### writ, requesting this Court to dismiss the,appeal and to order the proceedings to

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### {:!4'1?~',,,,/:'~-The order issued by the district judge denying the change of venue was an appealable order. An interlocutory order is normally not appealable, unless there isa special provision making it so. Schultz v. Adams (1973), 161 Mont. 463, 465, 507 P.2d 530, 532. By the terms of Rule l(b), M.R.App.Civ.P., an order denying the change of venue isspecificallyappealable: "A party aggrieved may appeal from ajudgment or order

# .. . inthe following cases:

(b)

# . . . from an order changing or refusing tochange the place of trial when the county designated inthe complaint is not the proper county. 

# .."
The statutory language of Rule l(b) does not requirethe defendants to wait and see 

### if they get another opportunity to raisethe venue issue. It allows them to take an immediate appeal on the denial of the venue motion, so as to not jeopardize their right to an appeal. See Sealey v. Majerus (1967), 149 Mont. 268, 269, 425 P.2d 70. Because the venue order inthis case isappealable, and an appeal was timely filed, the district judge acted properly instaying further proceedings inthe District Court. It is well-established that once a notice of appeal isfiled, the DistrictCourt loses jurisdiction to proceed. McCormick v. McCormick (1975), 168 Mont. 136, 138, 541 P.2d 765, 766. Since the appeal was properly taken, we next proceed to the merits of that appeal. The issues raised by defendants on appeal all involve questions of venue: 1) Does the filingof a suit as a class action affect the determination of venue? 2) Isvenue proper inMissoula County as to the claims filedagainst defendants Lake County and the Lake County Weed Board? 3) Isvenue proper inMissoula County as to the claimsfiled against defendant Dow Chemical Company by the two Lake County plaintiffs? Because this suit was filed as a class action, respondents suggest that the DistrictCourt should consider whether venue as toany one plaintiff inthe class isproper inMissoula County, inorder to determine whether the action can be maintained in Missoula County. This approach does not appear to be consistent with the traditional notions of venue which aim toward placing a trial ina county favorable to defendant. Although this Court has not had occasion to address the issue of whether the filing of a suit as a class action affects venue, several federal courts have looked at this question. The decisions uniformly holdthat

venue for a class action under Rule 23, F.R.Civ.P. isdetermined just as it isfor a comparable nonclass action. Thus, venue must be satisfied as to all named class representatives, just as it must be as to all plaintiffsand defendants ina nonclass action. Carolina Casualty Insurance Co. v. Local No. 612, etc. (N.D.Ala. 1956), 136 F.Supp. 941, 943; 3 

### B Moore's Federal Practice923.96 (1980); Research Corp. v. Pfi sterAssociated Growers, Inc. (N.D.111. 1969), 301 F.Supp. 497, 501. Inso holding the courts have reliedon the language of Rule 82, F.R.Civ.P., which has a counterpart inRule 82, M.R.Civ.P.: "Except as provided inRule 

### 4 these rules shall not be construed to extend or limit the jurisdiction of the district courts of Montana or the venue of actions therein." See United States and EEOC v. Trucking Employers, Inc. (D. D.C. 1976), 72 F.R.D. 98, 100. We recognize that the legislature has the power to determine where actions shall or may be tried, Fraser v. Clark (1954), 128 Mont. 160, 176, 273 P.2d 105, 114, and we note that the Montana statutes contain no specific venue provisions for class actions. Inthe absence of a directive otherwise by the legislaturewe hold inaccord with the federal courts and find that

venue ina class action should be determined as it is ina nonclass action. See also, Walker v. City of Houston (S.D. Tex.1972), 341 F.Supp. 1124. 

### If later certification proceedings result, we have found no authority, state or federal, concerning the status of claimed class representatives inthe period of time between the filing of the suit and the District Court's certificationof proper class representatives. Accordingly, we have assumed that the named plaintiffs are proper representatives of the class inthe event that the District Court determines this isa proper class action. Appellants Lake County and the Lake County Weed Board moved for a change of venue as to all claims filed against them inMissoula County. The basis for their motion was section 25-2-106, MCA, which provides inpart that "[aln action against a county may be commenced and tried insuch county

# . .." This Court held inGood Roads Machinery Co. v. Broadwater County (1933), 94 Mont. 68, 70-71, 20 P.2d 834, 835, that the "may" in the statute referred to a grant of permission to sue a county, but inso doing a plaintiffwas limited to bringing the suit in the defendant county. Respondents attempt to relyon State ex rel. Montana Deaconess Hosp. v. Park County (1963), 142 Mont. 26, 381 P.2d 297, but we find that case distinguishable on the facts. InDeaconess Hospital, two counties disclaimed liability for one hospital payment for awelfare patient. Because it was necessary todetermine which of the counties was the residence of the patient, and thus liable, both counties had to be joined as party defendants. This Court found that either county would be a proper one inwhich to prosecute the action. Deaconess Hospital, supra, 142 Mont. at 27-28, 381 P.2d at 298. Inthis case, the complaint does not allege that either Missoula County or Lake County was the exclusive cause of one injury. Rather, the pleadings indicatethat the plaintiffs could have been damaged by the actions of either or both counties acting separately. Insuch a situation both counties are not necessary parties to one action, and the counties should be sued where they are located.Despite respondents' argument that convenience and judicia1 economy dictate that the suit be brought inMissoula County, it isapparent from the statutes and cases cited that defendants Lake County and the Lake County Weed Board are entitled to have venue changed toLake County. Section25-2-201(I), MCA, requires that "[tlhe court or judge must, on motion, change the place of trial inthe following cases: (1) when the county designated in the complaint is not the proper county." This section is not discretionary. Lunt v. Division of Workmen's Compensation (1975), 167 Mont. 251, 253, 537 P.2d 1080, 1081. The judge must grant the change, before a motion relatingto convenience can be heard under section 25-2-201(3), MCA. Maio v. Greene (1943), 114 Mont. 481, 487, 137 P.2d 670, 671. Appellant Dow Chemical moved for a change of venue as to the claims of the two Lake County plaintiffs pursuant to section 25-2-102, MCA, which provides inpart that "[alctions for torts may be tried inthe county where the tort was committed. 

# .

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This Court has determined that this section should be interpreted toallow trial inthe county of defendant's residence, or inthe county where the tortwas committed. Section 25-2-108, MCA; Seifert v. Gehle (1958), 133 Mont. 320, 322, 323 P.2d 269, 270. The record issilent inthis case as to the place of residence of the defendant. Thus the suit would be properly filed inLake County, the situs of the tort allegedly committed against the Lake County plaintiffs. Appellant Dow Chemical Company is entitledto the change of venue as to the claims filed by the Lake County plaintiffs. Defendant Dow Chemical Company raises an alternative basis

on which to find venue inLake County. Intheir complaint, all plaintiffs a1lege real property damage. Section25-2-103(1) (b), MCA, sets venue for actions for injuryto real property "inthe county inwhich the subject of the action

# . .. issituated. 

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The "subject of the action" inthis case would appear to be located inLake County as to the Lake County plaintiffs, and pro-perlytriable there. See Fraser v. Clark (1954), 128 Mont. 160, 178, 273 P.2d 105, 115. This Court has determined that if a complaint contains more than one cause of action, and a defendant isentitled to a change of venue inone of those actions, then the motion for change of venue must be granted. This isso despite the fact that the other causes of action are properly triablewhere the action was commenced. Beavers v. Rankin (1963), 142 Mont. 570, 572, 385 P.2d 640, 641. Thus, where venue as to the real property damage claim against Dow Chemical Company isproperly inLake County, venue as to all claims against Dow Chemical Company should be moved to Lake County. For the foregoing reasons, we find that defendants' appeal tothis Court was properlytaken, and that the district judge acted correctly in refusing to continue further proceedings in the District Court. Thus, there is no sufficient basis for relators to invoke the supervisory control of this Court. Relators' petition is

Chief Justice

We concur:

Hon. Gordon R. Bennett, District Judge, sitting inplace of Mr. Justice Gene B. Daly.



# ................................ Hon. W. W. Lessley, District Judge, sitting inplace of Mr. JusticeJohn C. Sheehy.

The Honorable W. W. Lessley, DistrictJudge, sitting inplace of Mr. Justice John C. Sheehy, concurs and will sign this opinion the next time he isinHelena.