No. 92-585 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1933 

TARA MINERVINO, 

plaintiff and Appellant, 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen D. Roberts, Bozeman, Montana; Erik B. 

Thueson, Helena, Montana 

For Respondent: 

~eil E. Ugrin and Roger T. Witt, Ugrin, Alexander, 

Slovak, Great Falls, Montana 

Filed: 

submitted on Briefs: March 18, 1993 

Decided: May 28, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Tara Minervino appeals from an order of the Eighth Judicial 

District Court, Cascade County, granting the University of 

Montana's motion for change of venue. We affirm. 

Appellant Tara Minervino (Minervino) filed a complaint against 

the University of Montana (University) alleging that the University 

failed to protect her from an assault which occurred on its campus 

in Missoula, Montana. Filed in the Eighth Judicial District Court, 

the complaint asserts that venue is proper in Cascade County 

pursuant to 5 25-2-126(3), MCA, because the University is a 

political subdivision which is located in Cascade County by virtue 

of offering classes and maintaining an office at Malmstrom Air 

Force Base. 

The University moved for change of venue to the First Judicial 

District Court, Lewis and Clark County, relying on 1 25-2-126(1), 

MCA. The District Court granted the University's motion. 

Minervino appeals. 

Did the District Court err in granting the University's motion 

to change venue from Cascade County to Lewis and Clark County? 

The District Court determined that the University is the 

"state," rather than a "political subdivision," for venue purposes. 

On that basis, it considered the alternative venue locations 

contained in 5 25-2-126(1), MCA, and concluded that venue was 

proper only in Missoula County, where the claim arose, or in Lewis 

and Clark County. The court granted the University's motion for 
change of venue to Lewis and Clark County. 

Minervino argues first that venue for this action is properly 

in Cascade County pursuant to 5 25-2-122(1), MCA, which provides 

that the proper place of trial for a tort action is the county in 

which the defendant resides at the start of the action. She 

asserts that because the University has a campus location in 

Cascade County, venue is proper there. The record reflects that 

Minervino did not present this argument to the District Court, 

relying there only on 5 26-2-126(3), MCA, and a waiver estoppel 

theory. This Court will not consider issues or theories of the 

case raised for the first time on appeal. Weaver v. Law Firm of 

Graybill, et al. (1990), 246 Mont. 175, 180, 803 P.2d 1089, 1093. 

Minervino's next contention is that the University is a 

"political subdivision" under 3 26-2-126(3), MCA, rather than the 

"state" under 5 26-2-126(1), MCA. Therefore, she argues, since 

trial of an action against a political subdivision is proper in the 

county where the claim arose or where the political subdivision is 

located, the University's campus in Great Falls establishes proper 

venue in Cascade County. We disagree. 

Montana's venue statute for actions against the state or a 

political subdivision is § 25-2-126, MCA, which provides in 

pertinent part: 

(1) The proper place of trial for an action against the 

state is in the county in which the claim arose or in 

Lewis and Clark County. In an action brought by a 

resident of the state, the county of his residence is 

also a proper place of trial. 
(3) The proper place of trial for an action against a 

political subdivision is in the county in which the claim 

arose or in any county where the political subdivision is 

located. 

Resolution of the issue before us requires definition of the terms 

"state" and "political subdivision" contained in subsections (1) 

and (3), respectively, of 5 25-2-126, MCA. 

It is true, as Minervino asserts, that the Montana Code 

Annotated contains more than one statutory definition of each of 

these terms and that no statute specifically mandates that the 

definitions contained therein apply to the terms as used in 5 25-2- 

126, MCA. It also is clear, however, that the venue provisions in 

subsections (1) and (3) of § 25-2-126, MCA, previously were 

codified at Title 2, Chapter 9 of the Code. 

Prior to 1985, provisions substantively identical to those at 

issue here were found at 5 2-9-312, MCA. That statute was amended 

(in nonsubstantive ways) and recodified as an integral part of 

Title 25, Chapter 2, part 1 pursuant to Section 18(2) of Chapter 

432, Montana Session Laws, 1985. It was renumbered as 5 25-2- 

126(1) and (3), MCA, by the Code Commissioner. Our function is to 

effectuate the intent of the legislature. State ex rel. Roberts v. 

Pub. Serv. Commfn (1990), 242 Mont. 242, 246, 790 P.2d 489, 492. 

This clear legislative history mandates a conclusion that the 

definitions contained in Title 2, Chapter 9, apply to the terms 

used in 5 25-2-126, MCA. 

Section 2-9-101(7), MCA, defines "state" as "the state of 

Montana or any office, department, agency, authority, commission, 

board, institution, hospital, college, university, or other 

4 
instrumentality thereof ." "Political subdivision" is defined in 

9 2-9-101(5), MCA, to mean "any county, city, municipal 

corporation, school district, special improvement district or 

taxing district, or any other political subdivision or public 

corporation." Applying these definitions to the issue before us, 

it is unequivocal that the University is the "state" for 9 25-2- 

126, MCA, purposes. 

Minervino asserts that the University argued in Kendall v. 

State (l988), 231 Mont. 316, 752 P.2d 1091, that it is not the 

"state1' for venue purposes. As a result, she argues that the 

University has waived its right to contest venue on the basis that 

it & the "state," or that it is estopped from arguing contrary to 

its position in Kendall. 

Minervino cites to no authority in support of her waiver or 

estoppel theory regarding venue. In addition, estoppel theories-- 

both judiciai and equitable--rest on representations of facts. - 

DeMers v. Roncor, Inc. (1991), 249 Mont. 176, 814 P.2d 999; Dagel 

v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186. Venue 

is not a question of fact; it is a question of law involving the 

application of venue statutes to pleaded facts. We conclude that 

the University is not precluded from asserting that it is the 

"state" for venue purposes in this case. 

Having concluded that the University is the l'state" for 

purposes of 25-2-126(1), MCA, it remains only to apply that 

statute to the facts before us. Section 25-2-126(1), MCA, provides 

that venue for actions against the state--here, the University--is 
proper in one of three counties: 1) where the claim arose; 2) Lewis 

and Clark County; or 3) the county of plaintiff's residence if 

plaintiff is a Montana resident. Here, Minervino's claim did not 

arise in Cascade County; nor does she assert that she is or was a 

resident of Cascade County at any relevant time. Therefore, 

Cascade County is not an appropriate venue for this action under 

5 25-2-126, MCA. 

When an action is filed in an improper venue, "a defendant may 

move for a change of place of trial to a designated county." 

Section 25-2-114, MCA. Pursuant to 5 25-2-126(1), MCA, proper 

venues for Minervino's action are Missoula County, where the claim 

arose, or Lewis and Clark County. The University moved for change 

of venue to Lewis and Clark County, a proper venue under the 

statute. We hold that the District Court did not err in granting 

the University's motion. 

AFFIRMED. 

We Concur: 

h A 
May 28, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Stephen D. Roberts 

Attorney at Law 

502 So. 19th Ave. 

Bozeman, MT 59715 

Erik B. Thueson 

Attorney at Law 

P.O. Box 535 

Helena, MT 59625-0535 

Neil E. Ugrin and Roger T. Witt 

Ugrin, Alexander, Slovak, P.C. 

#2 Railroad Square, PO Box 1746 

Great Falls, MT 59403 

ED SMITH 

CLERK OF Tm SUPREME COURT 

STATE OF A MOltTANb ,