No. 90-259 IN THE SUPREME COURT OF THE STATE OF MONTANA

KEVIN OLSON and PAM OLSON, Plaintiffsand Respondents,

v E. G. LONG, Defendant

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# g District Court of the Twelfth Judicial ~iql&ct~ In and for the County of Hill, o The Honorable Warner, Judge presiding. c* 

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COUNSEL OF RECORD: ForAppellant: Terry 

### L. Seiffert, Billings, Montana 59107 For Respondent: Stephen R. Brown, Jr., Morrison, Young, Melcher, Brown & Richardson, Havre,Montana 59501

Submitted: September 13, 1990 Filed: ~ecided: December 11, 1990Justice William 

### E. Hunt, Sr. delivered the Opinion of the Court.

E. G. Long appeals from the order of the Twelfth Judicial District, Hill County,denying his motion for change of venue. We affirm. The sole issue raised onappeal iswhethervenueproperly lies in Hill County. The respondents commenced an action in Justice Court in Hill County, Montana, where they reside, against the appellant for the return of a security deposit, rent diminution, and attorney fees. The appellant was served with service of process in Yellowstone County, Montana, where he resides. He timely filed 

### a motion to dismiss or in the alternative for change of venue under Rule 3(A)(1)and 3(B)of theM.J.C.Civ.P. The JusticeCourt denied the Motion pursuant to 5 25-31-202, MCA. Trial was held in Justice Court and judgment entered against the appellant. The appellant filed notice of appeal to the Twelfth Judicial District Court. He then filed amotion for change of venue. The court denied the appellant's motion for change of venue, stating that themotion should properly have been made at the appellant's first appearance. Appeal is taken from that order. Does venue in this actionproperly lie in Hill County? A rental agreementwas executed between theappellantand the respondent on November 9, 1987. It stated in part: Upon termination of the tenancy, Landlord will within 30 days deliver to Tenant 

### a written list of any deductions from the Security Deposit andpayment of thebalance due to Tenant. Said list and payment will be mailed to thenew address of Tenant provided to landlord prior to moving.
Upon occupancy,therespondentsdelivered a securitydeposit inthe amount of $300. On March 8, 1989, the respondents received a statement of deductions from their securitydeposit. On June 12, 1989, they filed a complaint inJustice Court in Hill County. The appellant contested the Hill County venue on the grounds that the performance of the agreement took place in Yellowstone County,the defendant resides in Yellowstone County, and that the obligation to pay, if there indeed was one, was incurred in Yellowstone County. While defendant resides in Yellowstone County, and the property that is the subject of the litigation is located in Yellowstone County,performance of the agreement is not limited to the venue of the residence of the owner and the situs of the property under these facts. Section 25-31-202, MCA, controls actions based on contract or other obligation. That section provides as follows: When thedefendant or all of thedefendants, if there be more than one, reside in another county than that in which the right of action accrues and the action be for damages for violation of an express or implied contract or formoney due onan expressor impliedcontract,debt, note, or account, the action may be commenced and, subject to the right to change the place of trial, as provided inpart 3 of this chapter,may be tried in the county inwhich such contract or obligation is to be or was tohave been performed or suchmoney is tobe orwas to have been paid or in which the defendant or any one of the defendants resides; and the county in which the obligation is incurred shall be deemed to be the county in which it is to be performed or paid unless there is a special contract to the contrary.C d r)
In the present case, because the contract states that the landlord shall remit the deposit to the tenantsfnew address, the place of performance is Hill County. The deposit return is a material contractprovision. It specifies an obligation of one of theparties. The appellant's agreement to send the deposit to the respondentsf new address is a Ifspecialcontract.If Venue is properly in Hill County. Affirmed.

We Concur: 

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