### NO. 95-066 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

J. BRIANTIERNEY, individually and J. BRIANTIERNEY, ESQ., asaduly licensed attorney in the State of Montana andasdesignated andacting legal counsel for andonbehalf of one IDAM.MILLS,

Plaintiff &Appellant,
v. KEITHTOKERUD,ESQ., andMICHAELL. FANNING, ESQ., andSCOTT&TOKERUD,alaw partnership,

Defendants &Respondents.

APPEALFROM: District Court of the First Judicial District,

In andfor the County of Lewis andClark, TheHonorable Dorothy McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: J. Brian Tierney, Pro Se, Butte, Montana For Respondents: R. D. Corette andMarshal L. Mickelson, Corette PohlmanAllen Black &Carlson Butte, Montana

Filed: Submitted onBriefs: May25, 1995 Decided: July 6, 1995

Clerk1Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, J. Brian Tierney, filed anamended 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. Wefind 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, andmisrepresentation; andthat defendants deprived him of his civil rights in violation of 42U.S.C. 51983.

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

Tierney's amended complaint for failure to state aclaim on which relief could be granted. OnJanuary 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? Wereview adistrict court's conclusions of law to determine whether they are correct. InreMarriageofBarnard (1994), 264 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 achange of venue. Defendants agree that the District Court erred when it dismissed the amended complaint because of improper venue, but argue that weshould 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 acomplaint alleging fraud must bespecifically pled. Tierney has not specifically pled facts in support of Count III. Therefore, weaffirm the District Court's dismissal of this claim. In Count IV, Tierney alleged that defendants violated his civil rights and were liable pursuant to 42U.S.C. §1983 because,
as attorneys, they were officers of the court andwere 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 51983 claim against them. Weagree and conclude that for this reason Count IV was properly dismissed. Weheld 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, wewill uphold it onappeal regardless of the reason given 5for it." (Citing Kephartv.Portman (1993), 259 Mont. 232, 855 P.2d

120.1 Weconclude 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 bepublished by its filing as apublic document with the Clerk of the Supreme Court and by areport of its result to Montana LawWeek, State Reporter and West Publishing Company.

Weconcur: