No. 90-259 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

KEVIN OLSON and PAM OLSON, 

Plaintiffs and Respondents, 

v 

E. G. LONG, 

Defendant 

APPEAL FROM: 

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mo -3 5% 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: 

For Appellant: 

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, 1990 
Justice 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 on appeal is whether venue properly 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 the M. J.C.Civ.P. The Justice Court 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 a motion for change of venue. The 

court denied the appellant's motion for change of venue, stating 

that the motion should properly have been made at the appellant's 

first appearance. Appeal is taken from that order. 

Does venue in this action properly lie in Hill County? 

A rental agreement was executed between the appellant and 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 and payment of the balance due 

to Tenant. Said list and payment will be mailed to the 
new address of Tenant provided to landlord prior to 

moving. 

Upon occupancy, the respondents delivered a security deposit in the 

amount of $300. On March 8, 1989, the respondents received a 

statement of deductions from their security deposit. On June 12, 

1989, they filed a complaint in Justice 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 the defendant or all of the defendants, 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 for money due on an express or implied contract, debt, 

note, or account, the action may be commenced and, 

subject to the right to change the place of trial, as 

provided in part 3 of this chapter, may be tried in the 

county in which such contract or obligation is to be or 

was to have been performed or such money is to be or was 

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 tenantsf new address, the 

place of performance is Hill County. The deposit return is a 

material contract provision. It specifies an obligation of one of 

the parties. The appellant's agreement to send the deposit to the 

respondentsf new address is a Ifspecial contract.If Venue is 

properly in Hill County. 

Affirmed. 

We Concur: /