NO. 95-066 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

J. BRIAN TIERNEY, individually and 

J. BRIAN TIERNEY, ESQ., as a duly 

licensed attorney in the State of Montana 

and as designated and acting legal counsel 

for and on behalf of one IDA M. MILLS, 

Plaintiff & Appellant, 

v. 

KEITH TOKERUD, ESQ., and MICHAEL L. FANNING, 

ESQ., and SCOTT & TOKERUD, a law partnership, 

Defendants & Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Brian Tierney, Pro Se, Butte, Montana 

For Respondents: 

R. D. Corette and Marshal L. Mickelson, 

Corette Pohlman Allen Black & Carlson 

Butte, Montana 

Filed: 

Submitted on Briefs: May 25, 1995 

Decided: July 6, 1995 

Clerk1 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiff, J. Brian Tierney, filed an amended complaint in 

the District Court for the First Judicial District in Lewis & Clark 

County, in which he named Keith Tokerud, Michael L. Fanning, and 

Scott & Tokerud as defendants. The alleged bases for his amended 

complaint were professional negligence; breach of the implied 

covenant of good faith and fair dealing; fraud, deceit, and 

misrepresentation; and deprivation of his civil rights. The 

District Court dismissed Tierney's complaint based on improper 

venue. We affirm the District Court's dismissal of Tierney's 

complaint, however, for reasons other than those set forth by the 

District Court. 

We find the following issue dispositive on appeal: 

Did Tierney's complaint state any cause of action for which 

relief could be granted? 

FACTUAL BACKGROUND 

On December 28, 1994, Tierney filed an amended complaint 

against Keith Tokerud, Michael Fanning, and Scott & Tokerud. His 

complaint was based on his referral of a client, Ida Mills, to 

Tokerud. Tierney alleged that the defendants represented Mills 

negligently; that they breached the duty of good faith and fair 

dealing owed to him as the referring attorney; that defendants 

committed fraud, deceit, and misrepresentation; and that defendants 

deprived him of his civil rights in violation of 42 U.S.C. 5 1983. 

2 
On January 17, 1995, defendants filed a motion to dismiss 

Tierney's amended complaint for failure to state a claim on which 

relief could be granted. 

On January 31, 1995, the District Court dismissed Tierney's 

complaint based on improper venue. 

DISCUSSION 

Did Tierney's complaint state any cause of action for which 

relief could be granted? 

We review a district court's conclusions of law to determine 

whether they are correct. In re Marriage of Barnard ( 1994 ) , 2 64 Mont . 

103, 106, 870 P.2d 91, 93, 51 St. Rep. 173, 174 (citing InreMarriage 

ofBurris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619). 

Tierney argues that the District Court erred when it concluded 

that venue was improper in Lewis and Clark County. He contends 

that Lewis and Clark County is one of the proper locations for 

venue because the court has jurisdiction and defendants did not 

move for a change of venue. 

Defendants agree that the District Court erred when it 

dismissed the amended complaint because of improper venue, but 

argue that we should affirm the District Court on other grounds. 

Section 25-2-201(l), MCA, provides that when the county 

designated in the complaint is not the proper county for trial, the 

court must, on motion, change the place of trial. However, there 

is no provision for dismissal of an action over which the district 

court has jurisdiction because venue is more appropriate in another 

county. 
defendants had no duty of good faith and fair dealing which was 

breached. Therefore, we affirm the District Court's dismissal of 

Count 11 of the amended complaint. 

Count III alleges fraud. Defendants argue that Tierney did 

not follow the pleading requirements for fraud found in Rule 9(b), 

M.R.Civ.P. Defendants contend that Tierney has not pled any facts 

in support of the nine elements of fraud. They cite C. Haydon Ltd. v. 

MontanaMiningProperties (1993), 262 Mont. 321, 864 P.2d 1253, which 

requires that a complaint alleging fraud must be specifically pled. 

Tierney has not specifically pled facts in support of Count III. 

Therefore, we affirm the District Court's dismissal of this claim. 

In Count IV, Tierney alleged that defendants violated his 

civil rights and were liable pursuant to 42 U.S.C. § 1983 because, 

as attorneys, they were officers of the court and were acting under 

"color of law." Defendants argue that the scope of 5 1983 is 

limited to deprivation of rights accomplished by actions under 

"color of law"; that this statute does not reach purely private 

conduct; and that an attorney is not acting under "color of law" 

merely because he or she is an officer of the court. Moss v. Varian 

(N.D. Ohio 1982), 537 F. Supp. 711, 712. Therefore, defendants 

contend that there is no basis for the 5 1983 claim against them. 

We agree and conclude that for this reason Count IV was properly 

dismissed. 

We held in Lindey’s,Inc. v. Goodover (1994), 264 Mont. 449, 453, 872 

P.2d 764, 766, that "where the result reached by the court is 

correct, we will uphold it on appeal regardless of the reason given 

5 
for it." (Citing Kephartv.Portman (1993), 259 Mont. 232, 855 P.2d 

120.1 

We conclude that the District Court should not have dismissed 

Tierney's complaint based on improper venue, but was correct when 

it dismissed the complaint for the reasons previously set forth in 

this opinion. 

The judgment of the District Court is affirmed. 

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: