### NO. 92-329 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

I.S.C. DISTRIBUTORS, INC., a Montana corporation, Plaintiff and Respondent,

MIKE TREVOR; DAVE MARSKALL; RON HEILMAN; BRUCE SWICK; RON ARMSTRONG; SHARON RANSTROM; DEBBIE OWEN; SHERRY HANKS; TERRY KRAMER; ROGER FUCHS; SCOTT FIGG; STEVEN BAILEY; JOHN DOES I THROUGH X and JANE DOES ITHROUGH X, individually and in their representative capacity as employees 

### 03 the State of Montana, Defendants and Appellants.

APPEAL FROM: District Court of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellants: Chris 

### D. Tweeten,Hughes, Kellner, 

### Sullivan & Alke, Helena, Montana For Respondent: Michael E. Wheat, Cok & Wheat, Bozeman, Montana

Submitted on Briefs: January 28, 1993 Decided: July 29, 1993 Filed:Justice Terry N. Trieweiler delivered the opinion of the Court. Defendants appeal from an order of the ~istrict Court of the Eighteenth Judicial District, 

### all at in County, which denied defendants' motion to change venue to Lewis and Clark County. We affim. There are three issues on appeal: 1. Did the District Court commit reversible error when it adopted verbatim an order drafted by plaintiff which denied defendants1motion to change venue? 2. Did the District Court err when it considered an affidavit submitted by plaintiff subsequent to the time when defendants filed their motion to change venue? 3. Did the District Court err when it determined thatvenue is proper in Gallatin County pursuant to !j 25-2-125,MCA? In September 1990, plaintiff 1.S.C. Distributors, Inc., submitted 

### a sealed proposal to the Montana Department of Administration (the Department) to sell computer equipment to the 

### Department. 

### In June 1992, 

### the Purchasing Division of 

### the Departmentawarded contractsto threevendors other thanplaintiff. On September 25, 1991,plaintiff filed a complaint

### againstten state employees (defendants)who worked for the Departmentandwere involved in the decision to denyplaintiff'sbid. Plaintiff sought damages and injunctive relief pursuant to 42 U.S.C. 5 1983 (1871)

(amended 1979) and state common law, Plaintiff alleged that the named defendants unlawfully changed the date for submission of proposals, illegally considered evaluationcriteriawhich were notset forth in the request for proposals, and acted arbitrarilywhen they awarded the contract to vendors other than plaintiff. Plaintiff filed the complaint in Gallatin County. All of the individuals named in the complaint resided elsewhere. On November 27, 1991, defendants moved to change venue to Lewis and Clark County. They asserted that Gallatin County was not

a proper place for trial because plaintiff's claim arose in Lewis and Clark County and none of the defendants resided in Gallatin County. On December 5, 1991,defendants filed an affidavitbyMike Trevor, the Administrator of the Department and a defendant in plaintiff's action. Affiant Trevor testified that none of the actions in plaintiff's complaint occurred in Gallatin County. On February 4, 1992, before the District Court ruled on defendants' motion to changevenue,plaintiff amended its complaint to add two defendants who resided in Gallatin County. On February 12, 1992, plaintiff filed an affidavit of its chief executiveofficer,Scott Johnson. Johnsontestifiedthat,contrary to Trevor's assertion, events occurred in Gallatin County which contributed to defendants' decision to deny plaintiff's proposal. According to Johnson, plaintiff had provided Montana State University, which is located in Gallatin County, with computer equipment in conjunctionwith its last contract with the State;and Department staff went to MSU to test and evaluate some of the computer equipment thatplaintiff had provided to theUniversity in order to make its decision whether to award or deny plaintiff a contract. 3On May 11, 1992, the District Court held a hearing on defendants' motion to change venue and the parties presented oral argument. At the close of the hearing, in the presence of both parties and their counsel, the court denied defendants1motion and asked plaintiff to prepare a written memorandum and order for the court's signature. Plaintiffdid so,and the District Court signed the order on May 22, 1992. Defendants appeal. I Did the District Court commit reversible error when it adopted verbatim an order drafted by plaintiff which denied defendants' motion to change venue? Defendants assertthatthe District Court committed reversible error when it entered itsdecision todeny defendants'venuemotion by adopting verbatim a proposed opinion drafted by plaintiff. We disagree. Rule 52(a), M.R.Civ.P., requires that when a court grants a motion under Rule 12 or 56, the court shall support its orderwith

an explanation of its reasons. There is no comparable requirement for orders denying motions to change venue. Because a district court is at liberty to deny avenue motion with or without comment, the court did not errwhen it (1) chose to provide an explanation for why defendants' motion was denied, and

(2) directed plaintiff to prepare an appropriate memorandum and order for the court to sign. Furthermore, the court's order will be reviewedbased on the facts alleged in the complaint as applied to our common law and statutory venue rules. The presence of theadditional memo does not affect the nature of our review, and therefore, was not prejudicial to defendants. We hold that the District Court's adoption of the verbatim memo was not reversible

error. I I Did the District Court err when it considered an affidavit submittedbyplaintiff subsequentto the timewhen defendants filed their motion to change venue? Defendants assert thatplaintiff's original complaintdid not establish that any part of plaintiff's action arose in Gallatin County. Defendants contend thatwhen determiningwhethervenue was proper inGallatinCounty, the District Court improperly considered plaintiff's amended complaint and Johnson's affidavit. Defendants rely on Johnson 

### v. 

### Clark (1957), 131 Mont. 454, 311 P.2d 772, in support of their contention that Montana case law prohibits the consideration of matters other than the original complaint when determining whether venue is proper. Plaintiff responds that Hopkins

### v. ScottieHomes,Inc. (1979), 180 Mont. 498, 501, 591 P.2d 230, 232, allows the district court to rely upon the facts of an affidavit filed subsequent to the original complaint when ruling on a motion to change venue. In Johnson, this Court held that a change in place of trial must be determined by the conditions existing at the time the parties claiming it first appeared in the action, and the subsequent filing of an amended complaint by plaintiff shall haveno effect on defendants1pending motion to change venue. Johnson, 311 P.2d at 779. In Hopkins, this Court modified its holding in Johnson and determined that the court may properly consider facts set forth in affidavitswhich are filed subsequent to the original complaint when ruling on a motion to change venue. Hopkins, 591 P.2d at 232. The consideration of facts in an affidavit is not prejudicial to a party moving for a change of venue. These rules are not contradictory; together they simply mandate that, in fairness to the party moving for change of venue, the lower courtmay not consider an amended complaint for purposes of determining whether to grant or deny a venue motion; however, the court may look to affidavits submitted subsequent to the original complaint. Accordingly, it was proper for the District Court in this case to considerJohnson'saffidavit whendetermining whether to grant or deny defendants1motion. I11 Did the District Court err when it determined that venue is proper in Gallatin County pursuant to § 25-2-125, MCA? The named defendants in plaintiff's first complaint were all employees of the Montana Department of Administration, and therefore,theywere all stateofficials. Accordingly, 5 25-2-125, MCA, which pertains to actions against public officers, is the statute that governs this case. Section 25-2-125, MCA, provides: The proper place of trial for an action against a public officer or 

### person specially appointed to execute his duties for an act done by him invirtue of his office or against a person who, by his command or in his aid,does 6anything touching the duties of such officer is the county where the cause or some part thereof arose.

[Emphasisadded.] Defendants recognize that 5 25-2-125, MCA, is the controlling statute in this case; however, they assert that the court improperly interpreted this statute when it determined that a part of plaintiff's claim arose in Gallatin County. Defendants contend that their decision to deny plaintiff's proposal occurred in Lewis and Clark County, and therefore, plaintiff's suit against them arose in Lewis and Clark County. They assert that therewas no evidencepresented to the lower court that any part of their alleged lrwrongful actuoccurred in Gallatin County. Therefore, the court erred when it found that a part of plaintiff's claim arose in Gallatin County for purposes of establishing venue. In

### Ford

### v. DepamentofFish, Wildlifeand Parks (1984)

### , 208 Mont

# . 132, 676 P.2d 207, the plaintiff sought a writ of mandamus challenging

an agency decision to demote and transfer him. This Court held that althoughthedecisiontodemote and transfer theplaintiff was made in Lewis and Clark County,Missoula Countywas a proper place for trial under 5 25-2-105, MCA (now recodified at 5 25-2-125, MCA), because the position of employment, to which plaintiff claimed he was entitled and fromwhich he was tobe demoted,was in Missoula. Therefore, at least a part of the cause of action arose in Missoula County. In

### Ford, 676 P.2d at 210,we stated: 

### It is not themandamus aspect of the case,but the fact that the challengedstateaction concerns andwill affecta person and a position in Missoula that controls here. It is not the mere making of the order, but the place where it is put in operation, that determines where the cause of action arose. Similarly, in this case, it is not only the decision to award the contract, but the place where the effect of the decision is felt, which must also be considered. Johnson's affidavit, together with the original complaint, established that at least some part of plaintiff's claim arose in Gallatin County. Johnson's affidavit established that, although defendants' decision to award the contract to sell computer equipment occurred in Lewis and Clark County, the testing and evaluation of equipment in conjunctionwith the contract awards was undertaken at Montana State University, which is located in Gallatin County. Furthermore, the original complaint established thatplaintiff's principal place of business is inGallatinCounty. Both the affidavit and the original complaint state that plaintiff suffered damages to its business as a result of the State employees1decision. Finally,Johnsonls affidavit established that if plaintiff had been awarded the State contract at issue, some of the goods that would have been purchased from plaintiff under the contract would have been delivered in Gallatin County. We conclude that thealleged wrongful conductby defendants in this case concerns, and will have an impact on, Gallatin County. Therefore, some part of plaintiff's cause of action arose in Gallatin County.We hold that Gallatin County is a proper venue pursuant to 

### 5 25-2-125, MCA, and our prior decision in 

### Ford. Accordingly, the District Court did not err when it denied defendantst motion to change venue to Lewis and Clark County.

We concur:

Chief JusticeJustice Karla M. Gray dissenting: 

### Idissent. Section 25-2-125,MCA, provides that venue for an action against a public officer or his agent is "the county where the cause or some part thereof arose." A line of cases prior to 

### Ford established that, under this standard, a cause arises in the county in which the defendants committed the wrongful acts which create the right to sue. See, e.g., Lunt v. Division of Workmen's Comp. Dept. of Lab. & I. (1975), 167 Mont. 251, 537 P.2d 1080; Bergin v. Temple (1941),111Mont. 539, 547, 111 P.2d 286, 289-90. In 1984, this Court decided Ford. In that case, there were two applicable venue statutes because there were multiple defendants. Concluding that it was necessary to harmonize the

venue statutes,thisCourt extended themeaning of "wherethe cause or somepart thereof arose" to include where the decision at issue

was "put in operation." I Ford 676 P.2d at 210. However, following the enactment of § 25-2-115, MCA, in 1985, it is no longer necessary to harmonize venue statutes if more than one applies. Now, if two venue statutes apply, the plaintiff can choose from any venue proper under either statute. Themajority's opinion in this case stretches the language of 5 25-2-125,MCA, beyond recognition. "The county where the cause

or some part thereof arose" now includes the county where the "effect of the decision is felt." This sweeping interpretation nullifies the legislature's intent to place venue where the public officer or his agent performs the acts giving rise to the cause ofaction. It is particularly egregious here, where the defendants all worked in Helena and their conduct in reviewing the proposals and determiningwhichproposalswould be accepted occurred in Lewis and Clark County. In the absenceof the need toharmonize, Iwould return to the reasonable and workable interpretation of 5 25-2-125, MCA, established in the line of cases preceding 

### Ford. Therefore, I would reverse the District Court and direct it to grant themotion for change of venue.

Chief Justice J. A. Turnage: I concur in the dissent of Justice Gray.July29, 1993 CERTIFICATEOFSERVICE Ihereby certify that thefollowingorderwassentbyUnitedStates mail, prepaid, to the following named:

CHRISD. TWEETEN Hughes, Kellner, Sullivan&Alke P.O. Box 1166 Helena. MT59624-1166 MichaelE.Wheat COK&WHEAT P.O. Box 1105 108WestBabcock Bozeman,MT 59715

EDSMITH 

### CLERKOFTHESUPREMECOURT STAIROFMONTANA 

### BY: Depu