No. 86-255 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ALLEN L. McALEAR, 

Plaintiff and Appellant, 

-VSDEBORAH KASAK, 

Defendant and Respondent. 

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

In and for the County 0 H Gallatin, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen L. McAlear, Bozeman, Montana 

For Respondent: 

James P. Reynolds, Helena, Montana 

Filed: 

Submitted on Briefs: Nov. 13, 1986 

Decided: January 13, 1987 

C.l erk 
Mr. 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 

against Deborah Kasak. Kasak had worked briefly in McAlear's 

1a.w office. She left her employment and filed an action 

against McAlear with the Fuman Rights Commission alleging 

sexual harassment. 

After filing her complaint with the Human Rights 

Commission, she filed a wage complaint with the Lahor 

Standards Division. In explaining her reason for quitting or 

discharge, she set forth her allegations of sexual harassment 

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 a motion for change of venue. 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 judge did 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 this part: 

(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 commencement of the action; 

(2) if none of the defendants reside in the state, 

the proper place of trial is any county the 

plaintiff designates in the complaint; 

(3) the proper place of trial of an action brought 

pursuant to Title 40, chapter 4, is the county in 

which the petitioner has resided during the 90 days 

preceding the commencement of the action. 

We wish to call attention to the first line of the 

statute, "Unless otherwise specified in this part . . ." The 

remainder of part 2 deals with 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. It provides: 

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 

contract was 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 Oil Corp. (D. Mont. 1964), 228 F.Supp. 

807. However, we have never held that a plaintiff has an 

absolute choice of forum. A tort act-ion may be brought in 

either the county of the defendant's residence, or the county 

where the tort occurred. Siefert v. Geh.1.e (1958) , 133 Mont. 

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 for venue. Defendant moved for and received a 

change of venue to a proper county: the site where the tort 

occurred. The Distrlct Court did not err. 

We Concur: