### No. 84-482 INTHE SUPREME COURT OF 

### THE STATEOF MONTANA 1985

RICHARDMERENESS

# , Plaintiff and Respondent,
-vsFRITO-LAY, INC., DefendantandAppellant.

APPEAL FROM: DistrictCourt of the Thirteenth Judicial District, Inand for the County ofYellowstone, TheHonorable RobertHolmstrom, Judgepresiding.
COUNSELOF 

### IIECORD:
ForAppellant: Loble & 

### Pauly, Helena,Montana
For Respondent: howard and Grubbs,Billings,Montana

Submitted on Briefs: Feb. 22, 1985 Decided: May 23, 

### 1985

ClerkMr. JusticeJohn Conway Harrison delivered theOpinion of the Court.
Plaintiff Richard Mereness brought suitinYe11owstone County District Court against defendant Frito-Lay, Inc. Frito-Lay filed a consolidated motion todismiss, motion for summary judgment, and motion for a change of venue. The 

### District Court denied thesemotions. 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 lefthisemployment withFrito-Lay allegingwrongful 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 DistrictCourt against both Mereness and the Department. Frito-Lay sought torecover newly-found shortages from Mereness and to enjoin the Department from proceeding on the wage claim. On May 22, 1981, Mereness, actingpro 

### se, fileda pleading denominated motion todismissbutwhich in factwas a motion tochange venue toYellowstone County. About one month laterMereness retained counsel. A hearingwas held on themotion on October 

### 1, 1981. An order denying thevenue 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 alsojoined in the Department's motion todismiss. A h~aring was held and on January 

### 5, 1982, the Lewis and Clark County action was dismissed and the 

### entirematter was sent back 

### to the Department with the direction to consider offsets alleged by Frito-Lay. Proceedings in theDepartment 

### 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 

### DistrictCourt, denying a motion forchange 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 

### DistrictCourt 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 amendedinformation 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. Weprovided asfollows: "Under the 'law of the case' principle, judges of coordinate jurisdictions sittinginthe same court and inthe 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 shouldbe the end of the matter as far as judges and courts of coordinate jurisdiction are concerned. The 'law of the case' 

### isnot an imperative; does not go tothe power of the court; and does not mean that a court does not have discretion to reconsider a rulingmade by anotherjudge in the same case." (Citations omitted.) Carden, 170 Mont. at 440, 555 P.2d at ?40. Since therewas no discernablereason why the thirdjudge, in his discretion, decided toreconsider 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 tohe inLewis and Clark County? The parties on appeal have argued at length the question of whether ornot the case filed inLewis and Clark County 

### is the same asthe case filed inYellowstone County. 

### We agree with appellant that, for purposes 

### of 

### res judicata, ifa judgment had been reached on the

### merits intheLewis andClark County action, theYellowstone County actionwould have been barred. This 

### isbecause the two cases arose nut of the
same act, occurrence ortransaction. However, the

### merits of the case 

### were not reached inLewis 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 coordinatejurisdiction. In Lewis and Clark County Frito-Lay filed a suitagainstMereness and the Department of Labor and Industry. Mereness's motion for change of venue was denied. Though no reason for thedenial
was given, 

### it 

### is reasonable to assume, as Judge Holmstrom did, thatJudge Meloy feltbound 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 totake into account section 25-2-105, MCA, or to consider himself bound by theprevious decision of theLewis and Clark County 

### District Court. The probable justification for the original venue decisionby Judge Meloy did not exist in the Yellowstone County action. Moreover, as Judge Holmstrom points out, there 

### is ample reason why this case shouldbe triedinYellowstone County. The complaint alleges
a breach of contract thatwas tobe performed in Yellowstone County and a tort that allegedly took place inYellowstone County. Therefore, pursuant to sections 25-2-101 and 25-2-102, MCA, Yellowstone County is the proper venue for thisaction. We hold that Judge Holmstrom properly exercised his discretion by reconsidering thevenue rulingof theLewis andClark County 

### District Court. His decision denying a motion fora change of venue 

### is affirmed.

Weconcur: 

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