WEISS v STATE

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No. 85-387 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986 LARRY J. WEISS, an incompetent person, by and through his duly appointed conservator, DEBORAH A. WEISS; JESSICA I. WEISS and KRISTIE L. WEISS, minors, by and through their mother and natural parent DEBORAH A. WEISS; and DEBORAH A. WEISS, individually, Plaintiffs and Respondents, THE STATE OF MONTANA; THE MONTANA DEPARTMENT OF HIGHWAYS; GLACIER COUNTY; and BILL BIG SPRING, FRED R. JOHNSON, and DON KOEPKE, in their official capacity as GLACIER COUNTY COMMISSIONERS; and JOHN DOES 1--10, Defendants and Appellants. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas Olson, Judge presiding. COUNSEL OF RECORD: For Appellant: Jardine, Stephenson, Blewett & Weaver; William D. Jacobson, Great Falls, Montana Kirwan & Barrett; Steve Barrett, Bozeman, Montana For Respondent: Goetz, Madden & Dunn; William Madden, Bozeman, Montana Regnier, Lewis, Boland & Roberts; James M. Regnier, Great Falls, Montana Submitted on Briefs: Oct. 31, 1985 Decided: Filed.: JAN 16 1986 ...- fib Clerk January 16, 1986 Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Defendants Commissioners Glacier appeal County the June and 12, Glacier 1985, order County of the Eighteenth Judicial District Court denying defendants' motion for change of venue. We affirm. On December 12, 1981, plaintiff Larry Weiss was severely injured in a one car roll-over accident on Reagan Road in Glacier County, Montana, and rendered mentally incompetent. A complaint was alleging filed negligence in maintenance of the road. of Montana, County and the Montana its county by Deborah the Weiss, design, Larry's construction wife, and The named defendants were the Sta.te Department of commissioners Highways, Glacier in their official capacity, and other unknown defendants potentially liable to plaintiffs. The complaint was filed on Gallatin County, the plaintiffs ' December 11, 1-984, in pla.ce of residence. On December 31, 1984, defendants Glacier County and Glacier County Commissioners filed a motion for change of venue from Gallatin County to Glacier County, asserting Glacier County was the proper venue because the alleged tort occurred there and 5 25-2-106, MCA (1983), requires an action aga.inst a county or its commissioners to be brought in such county. The district judge denied the motion, reasoning that venue was proper a.s to the State defenda.nts therefore venue was proper as to all defendants. On appeal, the sole issue is whether the District Court erred in ruling that Glacier County and its commissioners could be sued in Gallatin County. Plaintiffs assert that the 1985 amendments to the venue provisions of the Montana Code, effective October 1, 1985, apply to this appeal. We agree. Section 1-2-109, MCA, provides: "No law contained in any of the code or other statutes of Montana is retroactive unless expressly so declared." However, a law is not deemed retroactive unless it takes away vested rights acquired und-er existing laws, or creates new duties or attaches a new disability in respect to transactions already past. Butte & Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 263, 229 P.2d 730, 733. newly-amended This Court has previously held that statutes which relate only to procedural matters and do not affect substantive rights of the parties do not fall within the scope of S 1-2-109, MCA. See e.g., Castles v. State (1980), 187 Mont. 356, 609 P.2d 1223; State ex rel. Johnson v. District Court (1966), 148 Mont. 22, 417 P.2d 109. A statutory change in venue provisions is wholly proced-ural and may be applied to pending cases. Denver Grande of Western Railroad Co. v. Brotherhood & Rio Railroad Trainmen (1967), 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954. We find that the 1985 amendments to the venue provisions of the Montana Code are applicable to this case. Three sections of the venue provisions in the Montana Code are implicated by the present case: 25-2-117. Multiple defendants. If there are two or more defendants in an action, a county that is a proper place of trial for any defendant is proper for all defendants, subject to the power of the court to order separate trials under Rule 42(b) of the Montana Rules of Civil Procedure. If an action with two or more defendants is brought in a county that is not a proper place of trial for any of the defendants, any defendant may make a motion for change of place of trial to any county which is a proper place of trial. 25-2-125. Against public officers or their agents. The proper place of trial for an action against a public officer or person specially appointed to execute his duties for an act done by him in virtue of his office or against a person who, by his command or in his aid.,does anything touching the duties of such officer is the county where the cause or some part thereof arose. 25-2-126. Against state, county, and political subdivision. (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. (2) The proper place of trial for an action against a county is that county unless such action is brought by a county, in which case any county not a party thereto 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. Defendants assert that S$ 25-2-125 and -126(2), VCA, require the action to be brought in Glacier County as that is where the alleged tort occurred, and that is the location of the county being sued. Plaintiffs assert that 5. 25-2-117, MCA, is controlling, and that where venue is proper as to the State, venue commissioners. is also proper for Glacier County and its We agree with plaintiffs' interpretation of the venue provisions. The 1985 amendments to the venue provisions eliminated use of the words "may," "shall," or "must," which had spawned endless litigation, and inserted the term "the proper place of trial" to clarify the venue statutes. Senate Judiciary Committee Minutes, See Exhibit No. 1, January 22, 1985. Section 25-2-117, MCA, concerning proper venue for multiple defendants, is new to the Montana Code. The explanatory comment to this section prepared by the Montana Supreme Court Commission on the Rules of Evidence reads in part: This proposed section does not change existing law or establish any new principle. Like the other new provisions it simply tries to codify existing case law (although, in this instance, cases are neither plentiful nor clear-cut) so that all the fundamental principles will be gathered together in one place and stated as plainly as possible. Id. - We believe that $j 25-2-117, MCA, is intended to apply to all venue provisions, including the provisions relating to suits against counties and public officials. P r e v i o u s l y , t h i s C o u r t h a s h e l d t h a t t h e venue s t a t u t e for s u i t s against counties, f o r m e r l y S 2-9-312 ( 2 ) , MCA, does n o t a b s o l u t e l y b a r a p r i v a t e l i t i g a n t from s u i n g a c o u n t y i n I n Hutchinson v. Moran (Mont. 1 9 8 3 ) , 6 7 3 a d i f f e r e n t county. P.2d 818, 40 St.Rep. Deaconess H o s p i t a l v . P.2d 297, we held 2081; and Park County that where State ex rel. Montana (1963) , 1 4 2 Mont. two counties are 26, 381 necessary p a r t i e s t o an a c t i o n a p l a i n t i f f may e l e c t t o f i l e s u i t i n e i t h e r county, venue. and n e i t h e r county h a s grounds t o o b j e c t t o An analogous s i t u a t i o n i s p r e s e n t i n t h e c a s e a t b a r . We f i n d t h a t t h e d i s t r i c t j u d g e ' s d e n i a l o f change o f venue is c o n s i s t e n t with S 25-2-117, MCA, which states that an a c t i o n may be b r o u g h t i n any county where venue i s p r o p e r and o t h e r d e f e n d a n t s j o i n e d though venue o t h e r w i s e would n o t 1-ie against those defendants. Affirmed. W concur: e

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