Vehrs v. Moses , 220 Mont. 473 ( 1986 )

No. 85-588
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
CARSON H . VEHRS, J R . ,
P l a i n t i f f and Appellant,
CHARLES F . MOSES AND THE MOSES
LAW FIRM,
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P a t r i c k A. H o l t a n d Dan T o r g e n r u d , L o l o , Montana
For Respondent:
G a r l i n g t o n , Lohn & R o b i n s o n ; S u s a n P . Roy & Sherman V.
Lohn, M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : Ja.n. 3 0 , 1 9 8 6
Decided: A p r i l 1, 1986
~iled: APR 1- 1986
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Plaintiff Carson Vehrs, Jr., appeals the September 3,
1985, order of the Fourth Judicial District Court granting a
change of venue from 1lj.ssoula County to Yellowstone County.
We affirm.
In March of 1978, Carson Vehrs (Vehrs) retained the
legal services of Charles Moses (Moses) to defend Vehrs in
criminal proceedings filed against him in Missoula County,
Montana, relating to Vehrs' conduct while employed at the
University of Montana. Vehrs met with Ralph Wright, one of
Moses' partners, in Missoula County, in order to retain
Moses. All legal fees paid by Vehrs to Moses were delivered
to Mr. Wright in Missoula County.
Vehrs maintained complete innocence on all charges.
Moses agreed to conduct his defense in a manner which would
not prejudice Vehrs' statutory right to recover costs and
expenses resulting from the charges, and if necessary, Moses
would represent Vehrs in a subsequent civil suit to recover
Vehrs' costs and damages.
On October 24, 1978, a jury found Vehrs not guilty on
the charge of felony theft. Shortly thereafter, a charge of
official misconduct against Vehrs was dismissed. On
January 18, 1979, Vehrs pled guilty to a misdemeanor charge
of selling wine without a license.
Following termination of the criminal proceedings, Moses
informed Vehrs that Vehrs was entitled to reimbursement for
his legal expenses pursuant to S 2-9-305 (4), MCA, (1978),
which states:
(4) In any action in which a governmen-
tal entity employee is a party defendant,
the employee shall be indemnified by the
governmental entity employer for any
money judgments or legal expenses to
which he may be subject as a result of
the suit uniess the conduc-t upon which
the claim is brought did not arise out of
the course and scope of his employment or
is an intentional tort or felonious act
of the employee.
On October 3, 1979, Moses presented a claim for reimbursement
to University of Montana legal counsel in Missoula. The
Board of Regents denied the claim on July 22, 1980. Moses
informed Vehrs the only remaininq avenue was to file a civil
suit.
On February 27, 1981, Moses filed a compla-int on behalf
of Vehrs in the Fourth Judicial District Court, County of
Missoula, requesting reimbursement for expenses and damages
arising out of the criminal proceedings against Vehrs.
Following discovery and a summary judgment motion by defen-
dants, count I of the complaint, which focused on Vehrs'
claim to reimbursement under S 2-9-305(4), MCA, was dismissed
by the district judge in a summary judgment order dated July
14, 1982. Moses appealed the summary judgment order; this
Court dismissed the appeal as being premature on November 12,
1982.
On July 19, 1983, following hea-ring, count IV of the
compla.int was dismissed. This order was appealed and af-
firmed by this Court in Vehrs v. Piquette, Mitchell, et al.,
(Mont. 1984), 684 P.2d 476, 41 St.Rep. 1110. During the
ensuing months Vehrs attempted to contact 140ses concerning
the status of the case, but Moses did not respond. The case
was never set for trial.
On July 12, 1985, Vehrs filed a legal malpractice action
in Missoula County against Moses. The complaint alleged
negligence, breach of contract, breach of fiduciary d.uty,
constructive frauc?.,and willful delay. Some of these acts
were alleged to have occurred in Missoula. Defendants filed
a motion for dismissal and change of venue to Yellowstone
County, the location of Moses1 law office. The district
judge granted change of venue by order dated September 3,
1985.
On appeal, the sole issue is whether the District Court
erred in granting change of venue to Yellowstone County.
Although the order granting change of venue was entered
September 3, 1985, the 1985 amendments to the venue provi-
sions in the Montana Code, effective October 1, 1985, apply
to this appeal. See Weiss v. State (Mont. 1986) P.2d
- , 43 St.Rep.
- 82.
The district judge relied primarily upon Whalen v. Snell
(Mont. 1983), 667 P.2d 436, 40 St.Rep. 1283, in granting a
change of venue. In Whalen, the issue was proper venue where
an attorney was suing a former client for non-payment of
fees. We found venue to be proper in the county where the
attorney's office was located rather than in the county of
defendant's residence.
Vehrs ' complaint sounds primarily in tort, therefore we
look to 5 25-2-122, MCA, which provides proper venue for a
tort action to be where defendant resides, or where the tort
was committed.
In Whalen, we said: "For the purposes of venue, a tort
is committed where there is a concurrence of breach of obli-
gation and the occasion of damages." 667 P.2d 437, 40
St.Rep. 1285. The damages suffered by Vehrs occurred when
the statute of limitations ran on his statutory right to
reimbursement for the legal fees he had incurred.
The location of Moses' alleged. breach of obligation is a
difficult question. Vehrs' complaint alleges Moses negli-
gently filed a claim with University of Montana legal counsel
in Missoula rather than with the Department of Administration
in Helena. Thereafter, Vehrs ' statutory claim for
reimbursement was dismissed. from the civil suit in P~lj.ssoula
County as not being within the statute of limitations. Vehrs
argues Moses' negligence occurred in Missoula, where Moses
pursued Vehrs' claim for reimbursement. Moses contends any
alleged tort occurred in Yellowstone County, where prepara-
tion for the case occurred, or in Helena, where the claim
should have been filed. We find venue was proper in
Yell-owstone County and affirm the District Court.
If any recovery of Lees could arguably be made under
S 2-9-305(4), MCA, (1978), a claim would first have to be
filed with the Department of Administration pursuant to
S 2-9-301, MCA, (1978). Section 2-9-302, MCA, (1978) pro-
vides claim filing is governed by sta.tutes of limitation
governing other actions. Here, a claim would have to be
filed within two yea.rs from October 28, 1978, pursuant to
§ 27-2-211, MCA, (1978).
The concurrence of damages and the alleged breach of
duty by Moses occurred on the date the statute of limitations
ran. Moses may arguably have been negligent in pursuing the
civil action in Missoula. However, there was no harm until
the statute of limitations ran on filing a claim in Helena,
Lewis & Clark County. If there was a concurrence of damages
and breach of obligation, it was when Moses failed to file in
Helena and the statute of Limitations ran. A tort, if one
occurred at all, would have resulted from the inaction in
Yellowstone County, the site of Moses' law office.
Affirmed.
We c o n c u r :
./