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 I THROUGH X, individually and 

in their representative capacity as 

employees 03 the State of Montana, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial 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 

af f im. 

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 

defendants1 motion 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 that venue 

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 

Department awarded contracts to three vendors other than plaintiff. 

On September 25, 1991, plaintiff filed a complaint against ten 

state employees (defendants) who worked for the Department and were 

involved in the decision to deny plaintiff's bid. 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 evaluation criteria which were not 
set forth in the request for proposals, and acted arbitrarily when 

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 affidavit by Mike 

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 change venue, plaintiff amended its complaint 

to add two defendants who resided in Gallatin County. On 

February 12, 1992, plaintiff filed an affidavit of its chief 

executive officer, Scott Johnson. Johnson testifiedthat, 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 conjunction with its last contract with the State; and 

Department staff went to MSU to test and evaluate some of the 

computer equipment that plaintiff had provided to the University in 

order to make its decision whether to award or deny plaintiff a 

contract. 

3 
On 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 defendants1 motion and 

asked plaintiff to prepare a written memorandum and order for the 

court's signature. Plaintiff did 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 assert that the District Court committed reversible 

error when it entered its decision to deny defendants' venue motion 

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 order with 

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 a venue motion 

with or without comment, the court did not err when 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 reviewed based on the facts alleged in the complaint as applied 

to our common law and statutory venue rules. The presence of the 
additional 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 

submitted by plaintiff subsequent to the time when defendants filed 

their motion to change venue? 

Defendants assert that plaintiff's original complaint did not 

establish that any part of plaintiff's action arose in Gallatin 

County. Defendants contend that when determining whether venue was 

proper in Gallatin County, 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. Scottie Homes, 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 have 
no effect on defendants1 pending 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 affidavits which 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 court may 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 consider Johnson's affidavit when determining 

whether to grant or deny defendants1 motion. 

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, they were all state officials. 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 in virtue of his office or 

against a person who, by his command or in his aid, does 

6 
anything touching the duties of such officer is the 

county where the cause or some part thereof arose. 

[Emphasis added.] 

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 there was no evidence presented to the lower court 

that any part of their alleged lrwrongful actu occurred 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. Depament of Fish, Wildlife and Parks ( 19 8 4 ) , 2 08 Mont . 13 2, 

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

an agency decision to demote and transfer him. This Court held 

that although the decision to demote and transfer the plaintiff was 

made in Lewis and Clark County, Missoula County was 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 from which he was to be 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 the mandamus aspect of the case, but the fact 

that the challenged state action concerns and will affect 
a 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 conjunction with the contract awards was 

undertaken at Montana State University, which is located in 

Gallatin County. Furthermore, the original complaint established 

that plaintiff's principal place of business is in Gallatin County. 

Both the affidavit and the original complaint state that plaintiff 

suffered damages to its business as a result of the State 

employees1 decision. 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 the alleged wrongful conduct by 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 Justice 
Justice Karla M. Gray dissenting: 

I dissent. 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), 111 Mont. 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, this Court extended the meaning of "where the cause 

or some part 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. 

The majority'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 of 
action. It is particularly egregious here, where the defendants 

all worked in Helena and their conduct in reviewing the proposals 

and determining which proposals would be accepted occurred in Lewis 

and Clark County. 

In the absence of the need to harmonize, I would 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 the motion 

for change of venue. 

Chief Justice J. A. Turnage: 

I concur in the dissent of Justice Gray. 
July 29, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

CHRIS D. TWEETEN 

Hughes, Kellner, Sullivan & Alke 

P.O. Box 1166 

Helena. MT 59624-1 166 

Michael E. Wheat 

COK & WHEAT 

P.O. Box 1105 

108 West Babcock 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAIROF MONTANA 

BY: 

Depu