No. 88-166 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

LEASING, INC., a Montana corporation, 

Plaintiff and Respondent, 

-vsDISCOVERY SKI CORPORATION, a Montana 

corporation, and PETER PITCHER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 

- .,- 

-c 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant Discovery Ski Corporation (Discovery) appeals 

from an order of the First Judicial District, 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 of process. We affirm. 

The question presented on appeal is: Did the District 

Court correctly dismiss Discovery's action as an abuse of 

process and a breach of contract terms when Discovery filed a 

complaint in Justice Court in Granite County with full 

knowledge that an action had previously been filed against it 

by Leasing in Lewis 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 District Court for breach of contract. 

The complaint alleged that on August 7, 1987, Discovery 

agreed to lease fire suppression equipment from Leasing for a 

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 

of Montana. 

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 summons and complaint in this 

action, by certified mail. The cause of action was for 

failure to pay sums owed to Leasing under the lease. 

October 14, 1986, defendant Discovery was served in the 

same manner. 

October 23, 1986, Pitcher filed a complaint in Justice 

Court in Granite County, Philipsburg, Montana, against 

Leasing. The complaint alleged that Leasing failed tc 

comply with the Montana Fire Code in that Leasing failed 

to install an automatic electric power shut off device 

which is required by law. 

October 28, 1986, the Granite County summons and 

complaint were served by the sheriff on Neil Flaherty 

(not a party to this action) as owner of Leasing. 

November 13, 1986, Leasing made a motion 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 motion was denied December 12, 

1986. 

November 18, 1986, Leasing served summons and complaint 

on Pitcher and Discovery by 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, 1987 hearing on the 

motion for default. 
The general rule of venue is that the proper place of 

trial for all civil actions is in the county in which the 

defendants . . . reside at the commencement of the action. 

Section 25-2-118, MCA; see also Deimler v. 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: 

. . . (b) the county in which the contract was to 

be performed. The county in which the contract is 

to be performed is: 

(i) the countv named in the contract as the place 

of performance,. . . 

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 it was the mutual intention of the parties at 

the time of contracting that the contract was to be performed 

in Lewis and Clark County and any action brought on the 

contract was 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. This was an attempt by Discovery to 

thwart the plain provisions of the written contract, and a 
use of the court system to accomplish that goal. 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