No. 97-343 IN THE SUPREME COURT OF THE STATE OF MONTANA 1998 MT 32
SPIKER COMMUNICATIONS, INC., a Montana Corporation, Plaintiffand Appellant,
v. STATE OF MONTANA, through its DEPARTMENT OF COMMERCE and DEPARTMENT OF ADMINISTRATION; JON NOEL, Director ofDepartment ofCommerce; MATTHEW COHN, Director ofMontana Tourism Development and Promotion Division; and NYLA J. JOHNSON, Contracts Manager, Purchasing Bureau, Department ofAdministration, Defendants and Respondents.

APPEAL FROM: District Court ofthe Fourth Judicial District, In and for the County ofMissoula, The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:

Filed: For Appellant: Christopher B. Swartley, Jon G. Beal; Datsopoulos, MacDonald & Lind, Missoula, Montana For Respondents: Norman C. Peterson, Agency Legal Services, Helena, MontanaJustice W. William Leaphart delivered the Opinion ofthe Court.**~1** Appellant Spiker Communications, Inc. (Spiker) appeals from the order oftheFourth Judicial District Court, MissoulaCounty, granting Respondent State ofMontana's motion for change ofvenue and ordering venue moved to the First Judicial District Court, Lewis and Clark County. We reverse and remand.**~2** Spikerraises the following issues on appeal:**~3** 1. Didthe District Court errin granting the State's request for change ofvenue when the State failed to object to venue in its first filing in the District Court?**~4** 2. Didthe District Court err in changing venue from Spiker's county ofresidence to Lewis and Clark County, the venue designated as the only proper venue in the State's Request for BidProposal? We find issue one dispositive, and, therefore, we will not address issue two. Factual and Procedural Background**~5** In October 1995, the purchasing bureau ofthe Department ofAdministration (the Bureau) released a request for proposal (RFP) to Spiker and to Wendt Advertising, qualified businesses, seekingto award a contracttoprovidemarketing and advertising for the Montana Tourism Development and Promotion Division ofthe Department ofCommerce. The RFP
was issued in accordance with § 18-4-304, MCA, and § 2.5.602, ARM, whichrequire that bidproposalsbe sealedandkept confidential. Both Spiker andWendtAdvertisingresponded with formal, signedproposals.

2**~6** According to Spiker, onNovember 27, 1995, Spiker informedthe Bureau's contracts manager that Spiker's confidential information had been provided to Wendt Advertising. The next day, Spiker notified the Bureau in writing ofthe irregularity in the procurement process. A few days later, Matthew Cohn (Cohn), Director of the Montana Tourism Development and Promotion Division, informed Spiker that he had shared the information contained in Spiker's RFP with Wendt Advertising.**~7** On January 4, 1996, Cohn notified Spikerthat the State was awarding the contract to Wendt Advertising. Spiker again notified the Bureau ofthe alleged irregularities in the procurementprocess,butthe Bureau still didnot conduct an internal review ofthe complaint. Spiker then contacted the Director ofthe Department ofCommerce, who allegedly told Spiker that it was not harmed by Wendt Advertising's knowledge of the information contained in Spiker's RFP.**~8** In July 1996, Spiker, a Montana corporation with its principal place ofbusiness in Missoula, Montana, filed a complaint in Missoula County, claiming that the State had breached the Montana Procurement Act, §§ 18-4-121 through 18-4-407, MCA. On September 18, 1996, the State filed a notice ofappearance ofcounsel. The parties disagreed
as to whether the complaint was subject to the requirements ofthe Tort Claims Act and, therefore, whether Spiker needed to comply with the 120-day administrative claim investigation period prior to filing a complaint against the State. See § 2-9-301, MeA. Ratherthan litigatethe issue, theparties stipulatedthatthe State wouldbe given an additional 90 days in whichto investigate the claim andrespond and that its response wouldnot include
a motion to dismiss for failure to properly serve any individual defendant or for failure to 3comply with the Tort Claims Act. On**S~ptember** 30, 1996, the State filed the stipulation, together with a motion for extension oftime in which to respond to the complaint. The District Court granted the State's stipulation and motion. ,-r9 On December 13, 1996, the State filed a motion to dismiss and a motion for change ofvenue. The parties briefed the issues, and, on May 20, 1997, the District Court ordered that venue be changed to Lewis and Clark County. Spiker appeals from this order. Discussion ,-rIO UnderRule 12(b)(ii), M.R.Civ.P., "ifthe county designated in the complaintis notthe proper county for trial ofthe action, the defendant must at the time of defendant's first appearance request by motion that the trial be had in the proper county." Spiker argues that the State's filing ofa notice ofappearance ofcounsel and ofa motion for extension oftime constitute appearances in whichthe issue ofvenue shouldhave beenraised. The State argues that while the right to move for a change ofvenue canbe waivedby failing to file a motion for change ofvenue in conjunction with a responsive pleading, it is not waivedby the simple act offiling a notice which informs the district court that the defendant is represented by counsel. We agree with Spiker that by filing a notice ofappearance ofcounsel and motion for extension, the State "appeared" in the District Court, as that term is used in Rule 12(b). ,-rl1 Acts of a defendant sufficient to constitute an appearance are set forth in § 25-3-401, MCA. This section states: "A defendant appears in an action when he answers, files a motion, or gives the plaintiffwritten notice ofhis appearance or when an attorney gives notice ofappearance for him or has such appearance entered in open court." Section 25-3-

4401, MCA. Under the plain language ofthis statute, the State appeared in this action by filing a notice ofappearance ofcounsel.**~12** We applied § 25-3-401, MCA, in holding that the defendants had waived their objections to personaljurisdiction in Spencerv. Ukra (1991),246 Mont. 430, 804 P.2d 380. In Spencer, the district court entered a defaultjudgment against the defendants after they failed to appear. The defendants filed a motion to set aside the default pursuant to Rules 55(c) and 60(b), M.R.Civ.P. Spencer, 804 P.2d at 381. Subsequently, the defendants filed two stipulations in the district court, one providing that the default be set aside and the defendants be given 20 additional days in which to respond and the other that they be given additional time in which to respond to discovery requests. Spencer, 804 P.2d at 382. The district court entered an order setting aside the default and granting the defendants 20 days to respond. Spencer, 804 P.2d at 382. Several months later, on motion ofthe defendants, the court dismissed the action for lack ofpersonaljurisdiction. Spencer, 804 P.2d at 382.**~**13 Theplaintiffappealedto this Court, arguing that any objectionto personaljurisdiction hadbeen waived. Spencer, 804 P.2d at 382. We noted that under Rule 12, M.R.Civ.P., an objection to lack ofpersonaljurisdiction must be made at the time ofthe defendants' initial appearance in the district court. Spencer, 804 P.2d at 382. Pointing to the language contained in § 25-3-401, MCA, we held that the "defendants, having moved the court to set aside the default in their initial appearance, without at the same time preserving the question of lack ofpersonal jurisdiction, consented to the generaljurisdiction ofthe court . . . ." Spencer, 804 P.2d at 383.

5**~14** 

### Similarly, in this case, the State voluntarily filed a notice ofappearance and moved the court for an extension oftime in which to answer without objecting to venue. The State argues that the notice ofappearance was merely a "stock document" giving notice to the court that the State was represented by the Agency Legal Services Bureau. However, the State cites to no authority in Montana that supports a distinction between an appearance in
a "stock document" and an appearance in a more substantive motion. Thus, we hold that both of the State's filings constitute appearances in the District Court. Under the clear language ofRule 12(b)(ii), M.R.Civ.P., the State shouldhave included its request that venue be changed to Lewis and Clark County in its notice ofappearance ofcounsel. Because it failed to do so, we hold that the State waived any objection to venue.**~15** 

### Based on the foregoing, we reverse and remand to the Fourth Judicial District Court, Missoula County, for further proceedings.

Justice We concur:

Justices 6