No. 88-166
IN THE SUPREME COURT OF THE STATEOF MONTANA 1988

LEASING, INC., a Montana corporation, Plaintiffand Respondent,-vsDISCOVERY SKI CORPORATION,a Montana corporation,and PETER PITCHER, Defendants and Appellants.

APPEAL FROM: District Court of the FirstJudicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
J. Allen Bradshaw, Philipsburg,Montana
For Respondent: Richard J. Pyfer;Small, Hatch, ~oubek & Pyfer, Helena,Montana

Submitted on Briefs: Nov. 3, 1988 Decided:December 13, 1988

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# .,- -c ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant Discovery Ski Corporation (Discovery)appeals froman order of the FirstJudicialDistrict,Lewis and Clark County, requiring Discovery to dismiss its action against Leasing, Inc. (Leasing) filed in Justice Court, Granite County, on the grounds that filing the Justice Court action
was an abuse ofprocess. We affirm. The question presented on appeal is: Did the District Court correctly dismiss Discovery's action as an abuse of process and abreach of contract terms when Discovery filed a complaint in Justice Court in Granite County with full knowledge that an actionhad previously been filed against it by Leasing inLewis and Clark County? Leasing is a Helena business that leased fire suppression equipment to Discovery. On October 10, 1986, Leasing filed a complaint against Discovery in the Lewis and Clark DistrictCourt for breach of contract. The complaint alleged that onAugust 7, 1987,Discovery agreed to lease fire suppression equipment fromLeasing fora term of ten years at $165.00 per month; that Leasing performed its part of the contract; and that Discovery now refuses to make its payments. The contract signed by the parties contains the following language: 13. The LESSOR and LESSEE agree that any cause of action filed as a result of a breach or violation of any terms of this agreement shall be filed in the City of Helena, Lewis and Clark County, State ofMontana. The LESSOR and LESSEE understand and agree that performance of this agreement is in the City of Helena, J,ewis and Clark County, State 

### of Montana.The sequence of events leading to this dispute is as follows: October 11, 1986, Peter Pitcher, an officer of Discovery, was served with summonsand complaint in this action,by certifiedmail. The cause of actionwas for failure to pay sums owed to Leasing under the lease. October 14, 1986,defendant Discoverywas served in the samemanner. October 23, 1986, Pitcher filed a complaint in Justice Court in Granite County, Philipsburg, Montana, against Leasing. The complaint alleged that Leasing failed tc complywith theMontana Fire Code in thatLeasing failed to install an automatic electric power shut off device which is requiredby law. October 28, 1986, the Granite County summons and complaint were served by the sheriff on Neil Flaherty

(not aparty to this action) as owner of Leasing. November 13, 1986,Leasing made amotion to consolidate the Granite County justice court action and the Lewis and Clark County action on the ground that the subject matter was the same. The motionwas denied December 12, 1986. November 18, 1986,Leasing served summons and complaint on Pitcher and Discoveryby sheriff's service. December 11, 1986, Discovery, without Pitcher, made a special appearance and a motion to dismiss Leasing's action on the ground that jurisdiction had attached in Granite County. May 15, 1987, Leasing moved for default on the first action on both Discovery and Pitcher for failure to appear. A hearing on that motion was set for May 28, 1987. May 26, 1987,Discovery and Pitcher made a special appearance to dismiss Leasing's action and at the same time responded to Leasing's motion for entry of default for failure to answer by asserting that no answer was due because the previous motion to dismiss for lack of jurisdiction had not heen ruled on. They also noted they would not appear at the May 28, 1987hearing on the motion fordefault.The general rule of venue is that the proper place of trial for all civil actions is in the county in which the defendants 

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# . reside at the commencement of the action. Section 25-2-118, MCA; see alsoDeimlerv. Ostler (1979),183 Mont. 480, 600 P.2d 814. However, in actions upon contracts, venue is governed by S 25-2-121(b), MCA: The proper place of trial for actions upon contracts is:



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# . (b)the county in which the contract was to be performed. The county inwhich the contract is to be performed is:

(i) the countv named in the contract as the place ofperformance,.

# .. The contract between Leasing and Discovery contains express terms that the place of performance is Helena, in Lewis and Clark County. The terms of this contract are not contradicted. When, at the time of contracting, the parties have agreed upon a particular county wherein they mutually intended their contract 

### --- was to be performed such agreement will be respected and given effect for it is a part of the freedom of contract to select the place where the contract will be performed. Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151. The contract before us, signed by all parties, plainly indicates that itwas themutual intention of the parties at the time of contracting that the contractwas tobe performed in Lewis and Clark County and any action brought on the contractwas to be brought in Lewis and Clark County. Nonetheless, Discovery, with full knowledge of the pending Lewis and Clark County District Court suit by Leasing, filed an action against Leasing, in the Justice Court of Granite County. Thiswas an attemptby Discovery to thwart the plain provisions of the written contract, and ause of the court system toaccomplish thatgoal. Such action constituted an abuse of process. Rrault v. Smith (1984), 209 Mont. 21, 28-29, 679 P.2d 236, 240. The District Court is affirmed.

Justice