Tierney v. Tokerud

NO. 95-066
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
J. BRIAN TIERNEY, individually and
J. BRIAN TIERNEY, ESQ., as a duly
licensed attorney in the State of Montana
and as designated and acting legal counsel
for and on behalf of one IDA M. MILLS,
Plaintiff & Appellant,
v.
KEITH TOKERUD, ESQ., and MICHAEL L. FANNING,
ESQ., and SCOTT & TOKERUD, a law partnership,
Defendants & Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Brian Tierney, Pro Se, Butte, Montana
For Respondents:
R. D. Corette and Marshal L. Mickelson,
Corette Pohlman Allen Black & Carlson
Butte, Montana
Submitted on Briefs: May 25, 1995
Decided: July 6, 1995
Filed:
Clerk1
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, J. Brian Tierney, filed an amended complaint in
the District Court for the First Judicial District in Lewis & Clark
County, in which he named Keith Tokerud, Michael L. Fanning, and
Scott & Tokerud as defendants. The alleged bases for his amended
complaint were professional negligence; breach of the implied
covenant of good faith and fair dealing; fraud, deceit, and
misrepresentation; and deprivation of his civil rights. The
District Court dismissed Tierney's complaint based on improper
venue. We affirm the District Court's dismissal of Tierney's
complaint, however, for reasons other than those set forth by the
District Court.
We find the following issue dispositive on appeal:
Did Tierney's complaint state any cause of action for which
relief could be granted?
FACTUAL BACKGROUND
On December 28, 1994, Tierney filed an amended complaint
against Keith Tokerud, Michael Fanning, and Scott & Tokerud. His
complaint was based on his referral of a client, Ida Mills, to
Tokerud. Tierney alleged that the defendants represented Mills
negligently; that they breached the duty of good faith and fair
dealing owed to him as the referring attorney; that defendants
committed fraud, deceit, and misrepresentation; and that defendants
deprived him of his civil rights in violation of 42 U.S.C. 5 1983.
2
On January 17, 1995, defendants filed a motion to dismiss
Tierney's amended complaint for failure to state a claim on which
relief could be granted.
On January 31, 1995, the District Court dismissed Tierney's
complaint based on improper venue.
DISCUSSION
Did Tierney's complaint state any cause of action for which
relief could be granted?
We review a district court's conclusions of law to determine
whether they are correct. In re Marriage of Barnard ( 1994 ) , 2 64 Mont .
103, 106, 870 P.2d 91, 93, 51 St. Rep. 173, 174 (citing InreMarriage
ofBurris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).
Tierney argues that the District Court erred when it concluded
that venue was improper in Lewis and Clark County. He contends
that Lewis and Clark County is one of the proper locations for
venue because the court has jurisdiction and defendants did not
move for a change of venue.
Defendants agree that the District Court erred when it
dismissed the amended complaint because of improper venue, but
argue that we should affirm the District Court on other grounds.
Section 25-2-201(l), MCA, provides that when the county
designated in the complaint is not the proper county for trial, the
court must, on motion, change the place of trial. However, there
is no provision for dismissal of an action over which the district
court has jurisdiction because venue is more appropriate in another
county.
defendants had no duty of good faith and fair dealing which was
breached. Therefore, we affirm the District Court's dismissal of
Count 11 of the amended complaint.
Count III alleges fraud. Defendants argue that Tierney did
not follow the pleading requirements for fraud found in Rule 9(b),
M.R.Civ.P. Defendants contend that Tierney has not pled any facts
in support of the nine elements of fraud. They cite C. Haydon Ltd. v.
MontanaMiningProperties (1993), 262 Mont. 321, 864 P.2d 1253, which
requires that a complaint alleging fraud must be specifically pled.
Tierney has not specifically pled facts in support of Count III.
Therefore, we affirm the District Court's dismissal of this claim.
In Count IV, Tierney alleged that defendants violated his
civil rights and were liable pursuant to 42 U.S.C. § 1983 because,
as attorneys, they were officers of the court and were acting under
"color of law." Defendants argue that the scope of 5 1983 is
limited to deprivation of rights accomplished by actions under
"color of law"; that this statute does not reach purely private
conduct; and that an attorney is not acting under "color of law"
merely because he or she is an officer of the court. Moss v. Varian
(N.D. Ohio 1982), 537 F. Supp. 711, 712. Therefore, defendants
contend that there is no basis for the 5 1983 claim against them.
We agree and conclude that for this reason Count IV was properly
dismissed.
We held in Lindey’s,Inc. v. Goodover (1994), 264 Mont. 449, 453, 872
P.2d 764, 766, that "where the result reached by the court is
correct, we will uphold it on appeal regardless of the reason given
5
for it." (Citing Kephartv.Portman (1993), 259 Mont. 232, 855 P.2d
120.1
We conclude that the District Court should not have dismissed
Tierney's complaint based on improper venue, but was correct when
it dismissed the complaint for the reasons previously set forth in
this opinion.
The judgment of the District Court is affirmed.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: