No. 84-482 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

RICHARD MERENESS , 

Plaintiff and Respondent, 

-vsFRITO-LAY, INC., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF IIECORD: 

For Appellant: 

Loble & Pauly, Helena, Montana 

For Respondent: 

howard and Grubbs, Billings, Montana 

Submitted on Briefs: Feb. 22, 1985 

Decided: May 23, 1985 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff Richard Mereness brought suit in Ye1 1 owstone 

County District Court against defendant Frito-Lay, Inc. 

Frito-Lay filed a consolidated motion to dismiss, motion for 

summary judgment, and motion for a change of venue. The 

District Court denied these motions. This is an appeal from 

the District Court's denial of the motion for change of 

venue. 

Richard Mereness worked for Frito-Lay as a route 

salesman, selling and delivering Frito-Lay snack-foods to 

retail outlets. He was responsible for all accounting 

related to his sales and deliveries. If his account was 

short, the shortage was deducted from his paycheck. In 

November of 1980, Mereness left his employment with Frito-Lay 

alleging wrongful deductions from his paycheck. In January 

of 1981, he filed a claim against Frito-Lay with the 

Department of Labor and Industry. Frito-Lay responded that, 

instead of Frito-Lay owing Mereness wages, Mereness owed 

Frito-Lay for newly-found shortages in his account, in 

addition to the shortages previously withheld. However, 

under the then-prevailing interpretation of Montana law, 

Frito-Lay could not assert either previously-deducted or 

newly found shortages as offsets or counterclaims in the 

proceeding before the Department of Labor and Industry. 

Therefore, in May of 1981, Frito-Lay filed a complaint in 

Lewis and Clark County District Court against both Mereness 

and the Department. Frito-Lay sought to recover newly-found 

shortages from Mereness and to enjoin the Department from 

proceeding on the wage claim. On May 22, 1981, Mereness, 

acting pro se, filed a pleading denominated motion to dismiss 
but which in fact was a motion to change venue to Yellowstone 

County. About one month later Mereness retained counsel. A 

hearing was held on the motion on October 1, 1981. An order 

denying the venue change was issued on October 6, 1981. 

Mereness then changed attorneys and in November of 

1981, together with the Department of Labor and Industry, 

again made a motion to change venue to Yellowstone County. 

Mereness also joined in the Department's motion to dismiss. 

A h~aring was held and on January 5, 1982, the Lewis and 

Clark County action was dismissed and the entire matter was 

sent back to the Department with the direction to consider 

offsets alleged by Frito-Lay. Proceedings in the Department 

of Labor and Industry continued without conclusion. In 

November of 1983, Mereness brought the present action in 

Yellowstone County. Frito-Lay's motion to change venue was 

denied on September 27, 1984. 

The issue presented by this appeal is whether the 

District Court, Yellowstone County, erred in denying 

defendant Frito-Lay's motion for a change in venue? 

Frito-Lay argues that the actions in Lewis and Clark County 

and Yellowstone County are the same and therefore the 

doctrine of law of the case makes the decision of the Lewis 

and Clark County District Court, denying a motion for change 

of venue, binding on the Yellowstone County District Court. 

As authority, defendant cites to State of Montana v. 

Carden (1976), 170 Mont. 436, 555 P.2d 738. In Carden the 

State filed a motion for leav~ to file a direct information 

in District Court charging defendant Carden with 118 counts 

of criminal offenses. This motion was granted. Several 

months later a second judge dismissed seventy-five of the 

counts and the State was granted leave to file an amended 
information covering the remaining forty-three counts. This 

information was filed but subsequently a third judge 

dismissed thirty-eight of the forty-three counts. The State 

conceded the dismissal of ten counts but appealed the 

dismissal of the remaining twenty-eight. 

We provided as follows: 

"Under the 'law of the case' principle, 

judges of coordinate jurisdictions 

sitting in the same court and in the same 

casp may not ordinarily overrule the 

decisions of each other. It is simply a 

rule of practice that articulates the 

sound policy that when an issue is one 

judicially determined, that should be the 

end of the matter as far as judges and 

courts of coordinate jurisdiction are 

concerned. The 'law of the case' is not 

an imperative; does not go to the power 

of the court; and does not mean that a 

court does not have discretion to 

reconsider a ruling made by another judge 

in the same case." (Citations omitted.) 

Carden, 170 Mont. at 440, 555 P.2d at 

?40. 

Since there was no discernable reason why the third judge, in 

his discretion, decided to reconsider the determinations of 

the two previous judges, we held that the prior rulings 

finding probable cause for filing the twenty-eight counts 

were the law of the case and binding on the third judge in 

the same action. 

The question before us now, is whether there was good 

reason for Judge Holmstrom, in his discretion, to rule that 

proper venue in this action is in Yellowstone County, when 

Judge Meloy had previously ruled proper venue to he in Lewis 

and Clark County? 

The parties on appeal have argued at length the 

question of whether or not the case filed in Lewis and Clark 

County is the same as the case filed in Yellowstone County. 

We agree with appellant that, for purposes of res judicata, 

if a judgment had been reached on the merits in the Lewis and 
Clark County action, the Yellowstone County action would have 

been barred. This is because the two cases arose nut of the 

same act, occurrence or transaction. However, the merits of 

the case were not reached in Lewis and Clark County and, as 

noted above, the mere fact that the cases are the same does 

not automatically preclude one court from reconsidering a 

ruling of a court of coordinate jurisdiction. In Lewis and 

Clark County Frito-Lay filed a suit against Mereness and the 

Department of Labor and Industry. Mereness's motion for 

change of venue was denied. Though no reason for the denial 

was given, it is reasonable to assume, as Judge Holmstrom 

did, that Judge Meloy felt bound by section 25-2-105, MCA, to 

hold that the cause against the Department must be tried in 

the County in which it arose, or Lewis and Clark County. 

However, in the Yellowstone County action, the Department is 

not a party and therefore there was no reason for Judge 

Holmstrom to take into account section 25-2-105, MCA, or to 

consider himself bound by the previous decision of the Lewis 

and Clark County District Court. The probable justification 

for the original venue decision by Judge Meloy did not exist 

in the Yellowstone County action. Moreover, as Judge 

Holmstrom points out, there is ample reason why this case 

should be tried in Yellowstone County. The complaint alleges 

a breach of contract that was to be performed in Yellowstone 

County and a tort that allegedly took place in Yellowstone 

County. Therefore, pursuant to sections 25-2-101 and 

25-2-102, MCA, Yellowstone County is the proper venue for 

this action. 

We hold that Judge Holmstrom properly exercised his 

discretion by reconsidering the venue ruling of the Lewis and 
Clark County District Court. His decision denying a motion 

for a change of venue is affirmed. 

We concur: u