Woolcock v. Beartooth Ranch , 196 Mont. 65 ( 1981 )

No. 81-255
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
RUSSELL WOOLCOCK, d/b/a
SPRING MOUNTAIN RANCH,
Plaintiff and Appellant,
BEARTOOTH RANCH, a dissolved Montana
Corporation, BEARTOOTH RANCH, a partnership;
VERNON SANDERS, GEORGE ELLIS, JOHN DOE I,
JOHN DOE 11, et al.,
Defendants and Respondents.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade.
Honorable John McCarvel, Judge presiding.
Counsel of Record:
For Appellant:
Jardine, Stephenson, Blewett & Weaver, Great Falls,
Montana
For Respondents:
Anderson, Brown, Gerbase, Cebull & Jones, Billings,
Montana
Submitted on briefs: September 3, 1981
Decided: &C 1 9
. a/PA*
' Clerk
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n of t h e C o u r t .
T h i s i s an a p p e a l f r o m a r u l i n g i n t h e D i s t r i c t C o u r t
o f t h e E i g h t h J u d i c i a l D i s t r i c t o f t h e S t a t e o f Montana, in
and for the County of Cascade, where the court granted
d e f e n d a n t s ' m o t i o n f o r c h a n g e o f v e n u e and moved t h e a c t i o n
from C a s c a d e County t o S t i l l w a t e r C o u n t y .
Plaintiff and a p p e l l a n t , R u s s e l l Woolcock, d/b/a
S p r i n g Mountain Ranch, f i l e d a c o m p l a i n t i n Cascade County
s e e k i n g b o t h compensatory and p u n i t i v e damamges. In his
complaint, Woolcock a l l e g e d t h a t t h e d e f e n d a n t s inten-
tionally, f a l s e l y a n d f r a u d u l e n t l y made r e p r e s e n t a t i o n s
regarding a bull named Negotiator 510L. The complaint
f u r t h e r a l l e g e s t h a t Woolcock r e l i e d on t h e s e m i s r e p r e s e n t a -
tions and purchased the bull at an auction held by the
B e a r t o o t h Ranch on O c t o b e r 1 0 and 11, 1 9 7 9 .
The d e f e n d a n t s moved f o r a c h a n g e o f p l a c e o f t r i a l
from Cascade County to Stillwater County. The District
Court granted the motion on the grounds that Stillwater
C o u n t y was t h e r e s i d e n c e and p r i n c i p a l p l a c e o f b u s i n e s s o f
t h e d e f e n d a n t s , was t h e p l a c e of t h e c o n t r a c t ' s p e r f o r m a n c e ,
and was t h e p l a c e o f t h e occurrence of the alleged t o r t s .
P l a i n t i f f and a p p e l l a n t a p p e a l s t h e o r d e r c h a n g i n g t h e p l a c e
of t r i a l and p r e s e n t s t h e f o l l o w i n g i s s u e s :
1. Does t h e c o m p l a i n t s t a t e a c o n t r a c t c l a i m o r a
t o r t claim?
2. Is S t i l l w a t e r County t h e p r o p e r p l a c e f o r t r i a l
i f the action is i n t o r t ?
3. Was s u f f i c i e n t e v i d e n c e p r e s e n t e d t o t h e D i s t r i c t
C o u r t t o s u p p o r t t h e change of venue motion?
Appellant contends t h a t h i s a c t i o n is i n t o r t , and,
consequently, the contract venue statute is inapplicable.
A p p e l l a n t s u p p o r t s t h i s c o n t e n t i o n by r e f e r r i n g t o s p e c i f i c
language used i n t h e complaint, such a s : ". . . the repre-
sentations alleged in paragraph I11 hereof were inten-
tionally, f a l s e l y and f r a u d u l e n t l y made f o r t h e p u r p o s e o f
causing plaintiff and the public to believe . . . that
N e g o t i a t o r 510L was t h e s o l e and o n l y p r o g e n y of J u s t a m e r e
RN890C . . ." A c c o r d i n g t o a p p e l l a n t , t h i s language, coupled
w i t h t h e f a c t t h a t t h e r e h a s b e e n no a c t i o n t o r e s c i n d t h e
c o n t r a c t , i s s u f f i c i e n t t o support an a c t i o n i n t o r t .
I n S t a t e ex r e l . Dimler v. D i s t r i c t C o u r t ( 1 9 7 6 ) , 1 7 0
Mont. 7 7 , 550 P.2d 9 1 7 , t h i s C o u r t s t a t e d :
". . . Here, p l a i n t i f f s chose t o a f f i r m t h e
c o n t r a c t and s u e f o r f r a u d u l e n t r e p r e s e n t a -
t i o n s preceding the contract, representations
w h i c h p l a i n t i f f s a l l e g e d i n d u c e d them t o s i g n
t h e c o n t r a c t f o r p u r c h a s e of d e f e n d a n t s '
home.
"That such course of a c t i o n is p e r m i s s i b l e
and i n f a c t i s n o t a c o n t r a c t a c t i o n h a s l o n g
been r e c o g n i z e d i n t h e law. 37 A m . J u r . 2 d I
F r a u d and D e c e i t , S 3 3 2 , p . 4 3 9 , s t a t e s i n
pertinent part:
" ' A t r a d i t i o n a l remedy o r d i n a r i l y a v a i l a b l e
t o a p e r s o n who h a s p a r t e d w i t h s o m e t h i n g o f
value a s a r e s u l t of a contract or trans-
a c t i o n i n d u c e d by f r a u d i s t h a t h e may r e t a i n
w h a t h e h a s r e c e i v e d and b r i n g a n a c t i o n a t
l a w t o r e c o v e r t h e damages s u s t a i n e d . Thus,
a p e r s o n who h a s b e e n i n j u r e d by t h e f r a u d o f
a n o t h e r o r o t h e r s , by e i t h e r a p a r t y o r
p a r t i e s t o a transaction or a t h i r d party or
t h i r d p a r t i e s committing fraudulent a c t s
involving or bringing about t h e n e g o t i a t i o n
of a t r a n s a c t i o n , s u c h t r a n s a c t i o n u s u a l l y
but not necessarily involving business or
c o m m e r c i a l d e a l i n g s , may m a i n t a i n a n a c t i o n
a t l a w i n t o r t t o r e c o v e r damages f o r t h e
i n j u r y r e c e i v e d f r o m t h e f r a u d and d e c e i t
p e r p e t r a t e d by s u c h o t h e r o r o t h e r s . -
The
foundation of t h e a c t i o n is n o t c o n t r a c t , b u t
tort. .. [Emphasis i n D i m l e r . ]
". . . 37 Am.Jur.2dr F r a u d and D e c e i t , S 3 3 3 ,
-3-
p. 442, continues the discussion:
"'In accordance with the right to bring an
action for deceit generally, a buyer who has
been induced by the fraud - the seller to
of-
purchase real or personal propert1 may ordi-
narily maintain an action for, or in the
nature of, deceit to recover damages result-
ing from the fraud . .
.' [Emphasis in
.
Dimler ]
"Applying the authorities discussed to
plaintiffs' allegations of misrepresentation
on the part of defendants, these conclusions
can be made as to plaintiffs' cause of action
in the instant case: The cause of action
arises from representations which plaintiffs
claim induced the execution of the contract,
section 13-308, R.C.M. 1947. Such represen-
tations necessarily contain an obligation to
act in good faith. Such representations if
knowingly false, as alleged, would be a
'breach of an obligation' as contemplated by
section 17-208. Additionally, a cause of
action for fraudulent inducement can be in
tort and thus independent of the contract and
therefore affirmance of the contract does not
automatically preclude suit in tort for
fraud. Since plaintiffs' cause of action for
fraud is based in tort, not contract, section
17-208, R.C.M. 1947, is not controlling and
plaintiffs can properly pray for punitive
damages." 550 P.2d at 920-921.
Here, the appellant has also chosen to affirm the
contract and sue for fraudulent misrepresentations.
Accordingly, the action is one in tort, and section 25-2-
102, MCA, applies. That statute provides: "Actions for
torts may be tried in the county where the tort was
committed, subject, however, to the power of the court to
change the place of trial as provided in this code."
Appellant contends the tort was continuous in nature
and that, therefore, according to section 25-2-102, IUICA,
Stillwater County is not the proper place for trial.
The general rule of venue has been reiterated
numerous times by this Court. In Foley v. General Motors
Corporation (1972), 159 Mont. 469, 499 P.2d 774, 775-776, we
held:
"Thus the general rule governing venue of
civil actions is that the action shall be
tried in the county in which the defendants
or any one of them reside at the commencement
of the action.
"In order to maintain suit in another county
than that of defendant's residence, plaintiff
must clearly show facts relied upon to brinq
the cause within one of the exce~tionsto the
A
general rule. Hidden Hollow Ranch v. Collins,
146 Mont. 321, 406 P.2d 365; Rapp v. Graham,
145 Mont. 371, 401 P.2d 579." (Emphasis
added. )
Also, in Rapp v. Graham (1965), 145 Mont. 371, 373-374, 401
P.2d 579, 581, this Court emphasized that, " [s]tatutory
provisions creating exceptions to the general rule
recognizing a defendant's privilege to be sued in his own
county will not be given a strained or doubtful construc-
tion." From the authority cited above, it is apparent the
general rule of venue shall be applied unless a clear reason
for an exception appears. In this case, a clear reason does
not appear.
Appellant's contention that Stillwater County is not
the proper place for trial is unsupported by the facts--that
is, the defendants all resided in Stillwater County and they
were served notice in Stillwater County. Further, the
contract was entered into in Stillwater County, no place of
performance was mentioned in the contract, and payment upon
the contract was made in Stillwater County. These facts
illustrate every aspect of the transaction was initiated in
Stillwater County.
It is clear from these facts that the entire action
culminated in Stillwater County. The alleged misrepresen-
tations, the alleged fraud and alleged deceit all
transpired, if at all, in Stillwater County. The tort was
committed, if at all, in Stillwater County. Even under
section 25-2-102, MCA, which is an exception to the general
rule of venue, appellant's contention that the continuous
nature of the tort makes Stillwater County an improper place
for trial does not stand up.
First, the tort was committed, if at all, at the time
of the auction and sale in Stillwater County. Second, since
section 25-2-102, MCA, is an exception to the general rule
of venue, it must be cautiously applied. The Texas Supreme
Court, in Ryan Mortg. Investors v. Lehmann (Texas 1976), 544
S.W.2d 456, 459, reiterated the general rule and the manner
in which exceptions should apply when it recognized the rule
enunciated in Goodrich v. Superior Oil Co. (1951), 150 Tex.
159, 237 S.W.2d 969, 972, and stated:
"The general rule of venue is, of course,
that a defendant shall be sued in his own
county, and however many and important the
exceptions contained in the statute, an equal
doubt between the exception and the rule is
to be resolved in favor of the rule. Stated
differently, the application of the excep-
tion must clearly appear."
Finally, in Neely v. Steinbach (1967), 149 Mont. 119, 423
P.2d 584, 586, this Court emphasized that, "[glranting a
change of venue lies in the sound discretion of the District
Court, and in the absence of manifest abuse of this
discretion, the decision of the court below must stand.
Little v. Strobel, 136 Mont. 272, 346 P.2d 971."
Appellant's final contention is that the District
Court erred when it granted a change of venue because the
defendants had failed to present pleadings or competent
evidence to support their motion.
This Court does not need address this contention
because appellant failed to present this issue for review on
the trial court level. Rules'8(c) and 12(b), t4.R.Civ.P. In
Chadwick v. Giberson (1980), - Mont. , 618 P.2d 1213,
1215, 37 St.Rep. 1523, 1726, we held: "However, it is a
well-settled rule of law that alleged error as to issues not
raised in trial court will not be considered on appeal."
See also, State v. Armstrong (1977), 172 Mont. 296, 562 P.2d
1129; Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d
48; Clark v. Worrall (1965), 146 Mont. 374, 406 P.2d 822.
The order of the District Court is affirmed.
Justice
We Concur:
3.A&& wa3
LUeeQ
Chief Justice