NO. 83-160 

IN THE SUPREME COrTRT OF THE STATE OF MONTANA 

1983 

MICHAEL J. WHALEN, 

Plaintiff and Appellant, 

VS . 

W. CARTER SNELL, 

Defendant and Respondent . 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable William Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Whalen & Whalen, Billings, Pflontana 

For Respondent : 

Brown and Huss, Miles City, Plontana 

Submitted on briefs: June 9, 1983 

Decided : August 4, 19 9 3 

Filed: IUI; 4 1983 
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of 

the Court. 

Appeal is taken from an order of the District Court 

the Thirteenth Judicial District, County of Yellowstone, 

granting change of venue to Garfield County. We reverse. 

Defendant W. Carter Snell (Snell) is a resident of 

Garfield County, Montana. Plaintiff Michael J. Whalen 

(Whalen) is an attorney with law offices in Billings, 

Yellowstone County, Montana. In November, 1980, Snell 

retained Whalen to provide legal services and represent him 

in a marriage dissolution. After meeting with Snell and his 

former wife, Whalen prepared a proposed property settlement 

agreement. Negotiations proved fruitless, and with the 

approval of Snell, an action for dissolution and property 

settlement was brought in Rosebud County, Montana. 

The parties apparently agreed that the legal services 

would be billed at the rate of $75.00 per hour with 

consideration to be given to the results obtained. 

On June 15, 1982, Whalen billed Snell, for legal 

services performed, in the amount of $12,322.01. Snell made 

payments of $1,000 and $2,000 in June and July of 1982. 

Allegedly, Snell repudiated his obligation to pay Whalen the 

balance of the bill on August 16, 1982. 

Thereafter, Whalen brought this action in Yellowstone 

County, alleging the following all in one claim: 

"1. Defendant owes plaintiff Nine Thousand, Three 

Hundred Twenty-two and 01/100 Dollars ($9,322.01) 

according to the account hereto annexed as Exhibit 

'A' and by this reference incorporated herein. 

"2. The balance hereinabove recited, arises out of 

the employment of the plaintiff by the defendant, 

at defendant's special instance and request to 

represent him in connection with a marriage 

dissolution which became Cause No. 9177 in the 

District Court of the Sixteenth Judicial District 

of the State of Montana in and for the County of 

Rosebud, wherein judgment was entered on June 17, 

1982. 
"3. After acknowledging existence of said account, 

and making partial payments thereon, the defendant 

repudiated his obligation thereon on or about 

August 16, 1982. The actions of the defendant in 

seeking and accepting the legal services of the 

plaintiff and then repudiating his obligation to 

pay for the same after the services were rendered, 

were and are oppressive, fraudulent and ma.licious 

and amount to a breach of good faith and fair 

dealing as is implied-in-law and amount to the tort 

of bad faith." 

Whalen prayed for $9,322.01 in compensatory damages and 

$10,000 in punitive damages. 

Snell filed a motion for change of venue, claiming that 

the action must be brought in the county in which the 

defendant resides. Whalen filed an affidavit in opposition 

to the motion; no affidavit or testimony was presented by 

Snell. After oral argument, the Court granted the motion and 

ordered that the case be transferred to Garfield County. 

Appeal was taken to this Court. 

The general rule governing venue of civil actions is 

that the action shall be tried in the county in which the 

defendant resides. Foley v. General Motors Corporation 

(1972), 159 Mont. 469, 499 P.2d 774; section 25-2-108, MCA. 

Permissive statutory exceptions to this general rule include 

provisions that contract actions may be tried in the county 

in which the contract was to be performed, and torts may be 

tried in the county where the tort was committed. Sections 

25-2-101,102, MCA. 

Both parties argue that venue should be determined by 

the place of performance of the contract; Whalen argues 

performance was in Yellowstone County while Snell argues it 

was not. However, it does not appear from the face of the 

complaint that the action sounds in contract at all. 

Instead, Whalen has merely pled a claim of bad faith in tort. 

The rule for venue of this action is therefore found in 

section 25-2-102, MCA, which provides that a tort action may 
properly be brought in the county where the tort was 

committed. 

For the purposes of venue, a tort is committed where 

there is a concurrence of breach of obligation and the 

occassion of damages. The obligation which gives rise to 

Whalen's cause of action is Snell's duty to deal fairly and 

in good faith in paying the agreed rate for attorney fees. 

This obligation was breached, if at all, where payment was to 

be made. 

From the uncontroverted facts in Whalen's affidavit it 

is clear that Snell came from Garfield County to Whalen's 

office in Billings, and entered into an agreement with Whalen 

at that place. It is also clear from the nature of an 

attorney's business that payment is to be made at the 

attorney's office, his place of work and business. A lawyer 

is not a peddler selling his services door-to-door, or 

delivering his product to a distant location. Since payment 

was to be made at Whalen's office any damages which are 

incurred as a result of the alleged tort, occurred at 

Whalen's office also. 

Even if Whalen had pled both a tort and contract claim, 

the result reached here would not change. Under section 

25-2-101, MCA, an action upon a contract may be brought in 

the county in which the contract was to be performed. 

Place of performance of a contract is the place where 

the obligation being sued upon was to be performed. It makes 

little difference where Whalen tried the divorce action since 

the manifest intention of the parties was that Snell's 

performance, that is payment, was to be at Whalen's office in 

Yellowstone County. Likewise, the interrelated tort action 

would also occur at the place of Snell's performance. Acc. 

Slovak v. Kentucky Fried Chicken (1973), 164 Mont. 1, 518 
P.2d 791. Therefore, any future amendment to include a 

contract claim would not affect venue. 

This action was properly brought in Yellowstone County, 

and the motion for change of venue should have been denied. 

Reversed. 

We concur: 

~LX&~+ 

Chief Justice