No. 86-255 TN THE SUPREME COURT OF THE STATE OF MONTANA 1987

ALLEN L. McALEAR, Plaintiffand Appellant,
-VSDEBORAHKASAK, Defendantand Respondent.

FROM: District Court of the~i hteenth Judicial District, 

# H In and for 

### the County 0 Gallatin, TheHonorableRoy Rodeghiero, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Allen L. McAlear, Bozeman,Montana

For Respondent: James P. Reynolds, Helena,Montana

Filed: Submitted onBriefs: Nov. 13, 1986 Decided: 

### January 13, 1987

C.l erkMr. Justice Flilliam 

### E. Hunt, Sr.

## , delivered the Opinion of the ~ourc.

This is an appeal from an order granted by the District Court of the Fourteenth Judicial Dj-strict,Meagher County, changing venue in a tort action. Plaintiff appeals. We affirm. There is one issue on appeal: Did the District Court
err in changing venue? Plaintiff Allen YcAlear filed an action for defamation againstDeborahKasak. Kasak had worked briefly inMcAlear's 1a.w office. She left her employment and filed an action against McAlear with the Fuman Rights Commission alleging sexualharassment. After filing her complaint with the Human Rights Commission, she filed a wage complaint with the Lahor StandardsDivision. In explainingher reason forquitting or discharge, she set forthher allegationsof sexualharassment 

### by McAlear. McAlear, pro se, brought an action against her for defamation based on the allegations in her wage complaint. McAlear brought the suit in Meagher County. Kasak, who currently lives in Pennsylvania, filed a motion to dismiss and amotion for change 

### ofvenue. The District Court granted the motion for change of venue and moved the action to the Eighteenth Judicial District, Gallatin County, where McAlear's office is located, and, where Kasak worked while she was employed by McAlear. The district judgedid not rule
on the motion to dismiss. McAlear appeals the order changing
venue. McAlear contends that because Kasak is 

### a nonresident of the State of Montana, he may select any county as the site -2-for his action, and she may not object. He relies on S 25-2-118,MCA,which states: Unless otherwise specified in thispart:

(1) except as provided in subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencementof the action;

(2) ifnone of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint;

(3) theproper place of trial of an actionbrought pursuant to Title 40, chapter 4, is the county in which thepetitionerhas resided during the 90days preceding the commencementof the action. We wish to call attention to the first line of the statute, "Unlessotherwise specified in thispart

# ..." The remainder of part 2 dealswith the proper place of venue for specific types of actions. "Defamation is made up of the twin torts of libel and slander

# . . .I' Presser, Law of Torts, at 737 (5th Ed. 1984). Section 25-2-122, MCA, deals specifically with tort actions. Itprovides: The proper place of trial for a tort action is:

(1) the county in which the defendants,or any of them, reside at the commencement of the action; or

(2) the county where the tort was committed. If the tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county where the contractwas to be performed. In this case, the defendant does not reside within the State of Montana. The tort was committed, if at all, in Bozeman where McAlear has his office and where the alleged damage to his reputation occurred. It is unclear why the action was filed in Meagher County. It apparently has no relation to any person or occurrence in this action. The general.rule is that the defendant is entitled to be sued in the county of his residence. Section 25-2-118(1), MCA; Letford v. Kraus (Mont. 19831, 672 P.2d 265, 40 St.Rep.1802. The defendant j.n this case is a nonresident of the State of Montana and may be sued in any proper county. Tassie v. Continental OilCorp. (D. Mont. 1964), 228 F.Supp. 807. However, we have never held that a plaintiff has an absolute choice of forum. A tort act-ionmay be brought in eitherthe county of the defendant's residence, orthe county where the tortoccurred. Siefertv. Geh.1.e (1958)

## , 133Mont. 320, 323 P.2d 269. Where plaintiffs file the action in an improper county, defen.dants may change venue to any proper county. Dal.ton v. Carr and Sons (D. Mont. 1986), 630 F.Supp. 726. In this case, plaintiff chose a county that is an improper site forvenue. Defendant moved for and received a change of venue toa proper county: the sitewhere the tort occurred. The DistrlctCourt didnot err.

We Concur: