NO. 92-501 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1333 

BRETT DEPEE, JANET DEPEE, and 

BITTERROOT VALLEY BANK, 

Plaintiffs and Respondents, 

-vFIRST CITIZEN'S BANK OF BUTTE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Jack L. Green, Judge presidinq: 

COUNSEL OF RECORD: 

For Appellant: 

J. Richard Orizotti, Poore, Roth & Robinson, 

Butte, Montana 

For Respondent: 

Dan G. Cederberg, Missoula, Montana; 

Judith A. Loring, Stevensville, Montana 

Filed: 

Submitted on Briefs: February 25, 1993 

Decided: May 11, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the Twenty-First (formerly Fourth) 

Judicial District Court, Ravalli County, denying defendant's motion 

for change of venue. We affirm. 

We consider the following issue on appeal: 

Did the District Court err in denying defendant's motion for 

change of venue from Ravalli County to Butte-Silver Bow County? 

Brett and Janet Depee (Depees) are residents of Stevensville 

in Ravalli County. In October of 1990, the Depees entered into an 

agreement with Better Homes of Montana (Better Homes) to purchase 

a 1983 Venture mobile home. The contract called for Better Homes 

to deliver, set up, block and level the mobile home at the Depees' 

residence in Stevensville. 

The contract for sale of the mobile home was conditioned on 

the approval of financing by Bitterroot Valley Rank (Bitterroot 

Bank). Bitterroot Bank is located in Lolo, Missoula County. First 

Citizen's Bank of Butte (First Bank) held a lien upon the mobile 

home in question. Upon agreement with Depees, Bitterroot Bank Vice 

President Rich Zins (Zins) contacted First Bank and asked if the 

First Bank would release its lien and, if so, where payment for the 

mobile home should be delivered. First Bank stated that the check 

from Bitterroot Bank should go directly to Better Homes and that 

the lien would be released in the normal course of business. 

Bitterroot Bank contends that it would not have loaned the money to 

the Depees unless the Bank had agreed to release the lien. 
On or about October 19, 1990, Bitterroot Bank sent Better 

Homes a check for the purchase price of the mobile home. The 

mobile home was subsequently delivered to the Depees and they moved 

into it in November of 1990. Subsequently, Better Homes went out 

of business. Following the mobile home's delivery, First Bank 

attempted to have title isstled to the mobile home based upon 

repossession. An affidavit of repossession was issued on June 4, 

1991, stating that First Bank had actual possession of the mobile 

home. According to First Bank, Better Homes had been required to 

deliver a negotiable certificate of title on the mobile home to 

First Bank. When Better Homes paid the debt owed on the mobile 

home, First Bank would release the certificate of title. 

Depees and Bitterroot Bank subsequently filed suit against 

First Bank regarding the encumbered title to the mobile home. The 

suit was filed in Ravalli County and contains charges of wrongful 

conversion, breach of agreement, breach of statutory duty to file 

a satisfaction of a chattel mortgage, wrongful repossession of the 

mobile home, breach of an obligation of good faith and fraud. 

The Bank then filed a motion for change of venue to ButteSilver Bow County where it maintains its principal place of 

business. A hearing was held on May 20, 1992, and on July 20, 

1992, the court issued an order denying the Bank's request for 

change of venue. 

Did the District Court err in denying defendant's motion for 

change of venue from Ravalli County to Butte-Silver Bow County? 
First Bank argues that the general rule of law governing venue 

is that venue is proper in the county where the defendant resides. 

According to First Bank, none of the statutory exceptions to this 

general rule apply under the facts of this case: the tort claims 

and contract claims are not appropriate in Ravalli County. First 

Bank contends that the action is only proper in Butte-Silver Bow 

County, where First Bank has its principal place of business. 

The Depees argue that if Ravalli County is a proper county, 

the court cannot change venue to another proper county. According 

to the Depees, Ravalli County is appropriate because the underlying 

contract was to be performed in Ravalli County. Further, all torts 

alleged by the Depees spring from this contract and are so 

interrelated with it that Ravalli County is appropriate. 

The record on appeal of venue is limited and contains only the 

complaint, an affidavit and the transcript of the venue hearing. 

The action revolves around two agreements, one of which is a 

written purchase agreement made between the Depees and Better 

Homes. The purchase agreement for the mobile home had a condition 

precedent, A condition precedent is a condition which must be met 

before the agreement becomes effective. Westmont Tractor Co. v. 

Viking Exploration, Inc. (D.C. Mont. 1982), 543 F.Supp. 1314. The 

purchase agreement states expressly that the sale is conditioned on 

the approval of financing by Bitterroot Valley Bank. 

A second agreement exists within the facts of this case and 

that is the oral agreement between First Bank and Bitterroot Bank. 

In that agreement, First Bank agreed to release its lien on the 
Depees mobile home, which had been floor financed to Better Homes, 

when Better Homes paid the amount owed on the home. First Bank 

agreed in a telephone conversation that the lien would be released 

so that Bitterroot Bank could maintain the security interest on the 

mobile home. Bitterroot Bank officer, Zins, testified that he 

would not have loaned the $12,500 to the Depees unless First Bank 

agreed to release its lien. 

Montana's venue statute governing contract actions is 5 25-2- 

121, MCA. This section of the code provides that venue for 

contract actions is proper in either the county in which the 

defendant resides or the county in which the contract is to be 

performed. Section 25-2-121(1), MCA. See also, Missouri-Stone v. 

Barber Seed (Mont. 1992), 49 St. Rep. 1139. According to this 

statute, the county where the contract is to be performed, if no 

place is named, is the county in which, by necessary implication 

from the terms of the contract, considerins all of the obliqations 

of all parties at the time of its execution, the principal activity 

was to take place. Section 25-2-121(l) (b) (ii) , MCA. [Emphasis 

added.] The particular county must be clear from the express terms 

of the contract or by necessary implication from the contract 

terms. Berlin v. Boedecker (1989), 235 Mont. 443, 767 Mont. 349. 

The first contract, the purchase agreement, does not specify 

where the goods are to be delivered. It states that the mobile 

home is to be delivered, set up, blocked and leveled by Better 

Homes personnel. The purchase agreement lists the Depeess address 

in Ravalli County. By fsnecessary implication" the county of 
principal activity is where the mobile home was to be set up, and 

in fact was set up. 

The second agreement between First Bank and Bitterroot Bank 

would have Ravalli County as its place of principal activity also. 

Although First Bank officer Beck testified that had First Bank been 

paid for the mobile home, it would have released the title to the 

dealer, Better Homes, that title would have eventually been sent to 

Bitterroot Bank. That is particularly so since Better Homes went 

out of business shortly after the Depees bought the mobile home. 

In addition, subsection (2)(a) of 5 25-2-121, MCA, lists 

specifically that the proper county for contracts for the sale of 

property or goods is to be where the goods are to be delivered. 

The "goods" under the purchase contract were delivered, set up, 

blocked and leveled in Ravalli County. Ravalli County was 

obviously the county where the principal activity of both 

contracts, and the place where the "goods" from the first contract 

were delivered. 

First Bank claims that it was not a party to the purchase 

agreement. Such argument is irrelevant. First Bank was a party to 

the second agreement and the principal place of activity on that 

agreement would have been Ravalli County. 

The Depees do not have a cause of action outside of the 

purchase agreement. Every claim, every activity at issue by all 

four parties, stems from this purchase agreement. Even the tort 

claims, which the Bank argues were not founded in this initial 

contract, are directly tied to the initial purchase agreement or 
the agreement between First Bank and Bitterroot Bank. Our statutes 

provide that where tort claims are so interrelated with the 

contract action, the site of venue which is appropriate for the 

contract action is appropriate for the tort claims also. Section 

25-2-122, MCA. 

We conclude that under both contracts at issue in this case, 

Ravalli County is proper venue. Therefore, a change of venue is 

not proper under Montana's venue statutes because the plaintiffs 

filed in a proper county. We hold that the District Court did not 

err in concluding that Ravalli County was a proper county for venue 

and in denying the Bank's motion for change of venue. 

Af f inned. 

We Concur: 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Defendant was entitled to be sued in the county of its 

residence unless it was a party to a contract to be performed in 

some other county. In reasoning which adds a new twist to the 

rules of venue, the majority holds that since some other contract 

to which defendant was not a party was to be performed in Ravalli 

County, defendant is somehow subject to suit in Ravalli County 

Plaintiffs filed a complaint against defendant in Ravalli 

County alleging six causes of action. Count No. 2 was the only 

cause of action based on contract. It alleged that: 

XXVI . 

First Citizen's, through its agent Beck agreed to 

release its lien against the mobile home and allow title 

to the mobile home to be transferred to Depees free and 

clear of its lien on payment of Twelve Thousand Five 

Hundred and No/100 Dollars ($12,500.00) to Better Homes 

plus allowance for a trade-in and down payment. 

First Citizen's breached its agreement to release 

its lien against the mobile home by failing to release 

its lien after payment in full was received. 

There was no written agreement which formed the basis for 

plaintiffs' complaint, and according to the allegations of the 

complaint, there was no place of performance specified in the 

alleged oral agreement. In Berlin v. Boedecker (1989) , 235 Mont . 443, 

444-45, 767 P.2d 349, 350, we held under similar circumstances 

that: 

"The general rule governing venue of any civil action is 

that the action shall be tried in the county in which the 
defendant resides." Whalenv.Snell (1983), 205 Mont. 299, 

301, 667 P.2d 436, 437; see also 5 25-2-118(1), MCA. A 

plaintiff also may choose to bring a contract action in 

the county where a contract was to be performed. section 

25-2-121!1) (b) , MCA; Hardeabu~h v~ Hardenbuqh (1944), 115 

Mont. 469, 146 P.2d 151. However, this performance 

exception applies only if the plaintiff clearly shows 

that the contracting parties mutually agreed at the time 

they entered the contract that the contract was to be 

performed in a particular county other than that of 

defendant's residence. The particular county must be 

clear from the express terms of the contract or by 

necessary implication from the contract terms. Annon v. 

Stewart (1973), 162 Mont. 262, 264, 511 P.2d 8, 9. 

Since there was no specified place of performance in this 

contract, and since the place of performance was not clear from the 

express allegations in plaintiffs' complaint, the place for venue, 

according to Berlin, was the place of defendant's residence. 

However, if that general rule of venue is not sufficient, certainly 

the uncontroverted testimony in this case was sufficient to 

establish that the place of performance for the contract between 

Bitterroot Valley Bank and First Citizen's Bank was a place other 

than Ravalli County. 

The only testimony given regarding the place of First 

Citizen's Bank's performance was given by the vice president in 

charge of loans from Bitterroot Valley Bank. He testified as 

follows: 

Q. Okay. Now you allege that there was an agreement 

with First Citizen's Bank: is that correct? 

A. I don't believe that is correct. 

Q. Okay. There was no agreement -- you had no 

agreement with First Citizen's Bank, is that right, 

in this case? 
A. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

The 

My agreements, I guess, with First Citizen's Bank 

were -- if you'd like me to tell the whole scenario 

now, I can. 

I would just like to have you answer the question. 

Do you contend you had an agreement in this case 

with First Citizen's Bank? 

I guess I would, yes, 

Okay. And was that agreement that First Citizen's 

Bank would, which you contend, First Citizen's Bank 

would release the title to this mobile home? 

That is correct. 

And to whom would First Citizen's Bank release the 

title to the mobile home? 

I was told by Robert Beck at First Citizen's State 

Bank of Butte that normal course of business, that 

he would send the title to the mobile home dealer. 

Okay. Who was the mobile home dealer in this case 

in which the -- Mr. and Mrs. Depee purchased the 

home from. 

Better Homes of Montana. 

Where is that place of business? 

Out by the airport near Missoula. 

In Missoula County? 

In Missoula County. 

majority points out that there were two separate 

agreements. There was a written purchase agreement between the 

mobile home dealer and the purchasers, Brett Depee and Janet Depee. 

However, defendant First Citizen's Bank was clearly not a party to 

that agreement. The second agreement alleged is the agreement 

between First Citizen's Bank and Bitterroot Valley Bank. However, 

according to the uncontroverted testimony of Bitterroot Valley 
Bank's own vice president, all of First Citizen's Bank's duties 

pursuant to that agreement were to be performed in Missoula County. 

The fact that Better Homes, once it received the title from First 

Citizen's Bank, might have eventually sent it to Ravalli County 

pursuant to a separate agreement is irrelevant to the issue of 

proper venue for enforcement of the contract between Bitterroot 

Valley Bank and First Citizen's Bank. 

Furthermore, 5 25-2-121(2)(a), MCA, which pertains to proper 

venue within which to enforce contracts for the sale of property or 

goods, is irrelevant to the issue of proper venue for the suit 

against First Citizen's Bank. First Citizen's Bank was not a party 

to any contract for the sale and delivery of property or goods. 

Because Ravalli County was not the proper venue for suit on 

plaintiffs* claim for breach of contract, all of plaintiffsv claims 

should have been transferred to Silver Bow County pursuant to 

defendant's motion for change of venue. Section 25-2-116, MCA, 

provides that: 

In an action involving two or more claims for which 

this part designates more than one as a proper place of 

trial, a party entitled to a change of place of trial on 

any claim is entitled to a change of place of trial on 

the entire action, subject to the power of the court to 

separate claims or issues for trial under Rule 42(b) of 

the Montana Rules of Civil Procedure. 

The majority has, in effect, held that because one of the 

plaintiffs had a contract with a mobile home dealer, who is not a 

party to this lawsuit, wherein the mobile home dealer agreed to 

deliver a mobile home in Ravalli County, the defendant bank, which 

was not a party to that contract and had nothing to say concerning 
its terms, is subject to suit in Ravalli County. This is, indeed, 

an interesting and novel approach to venue. If the average 

practitioner was not previously confused by this Court's decisions 

regarding venue, he or she should be now. 

Periodically, the Legislature attempts to codify our decisions 

regarding venue in order to simplify the rules of venue for 

practicing attorneys. The next time the Legislature attempts to do 

so it will be interesting to see how it explains this decision. 

For the above reasons, I dissent from the opinion of the 

majority. I would reverse the District Court and order that venue 

be transferred to Silver Bow County. 

Justice Karla M. Gray joins in the foregoing dissent. 
May 11, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

J. Richard Orizotti 

Poore, Roth & Robinson 

1341 Harrison Ave. 

Butte, MT 59701 

Dan G. Cederberg 

Attorney at Law 

201 W. Main, 310 Central Square 

Missoula, MT 59802 

Judith A. Loring 

Attorney at Law 

P.O. Box 4 

Stevensville, MT 59870 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANAA .