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Leasing, Inc. v. Discovery Ski Corp.

Supreme Court of Montana
Dec 13, 1988
235 Mont. 133 (Mont. 1988)

Summary

In Leasing, Inc., the Lewis and Clark County District Court dismissed a lawsuit filed in Justice Court in Granite County because a contract, which was the basis of that suit, provided that it was to be performed in Lewis and Clark County and also provided that the venue of any action on the contract was Lewis and Clark County.

Summary of this case from Seipel v. Olympic Coast Investments

Opinion

No. 88-166

Submitted on Briefs November 3, 1988

Decided December 13, 1988

Appeal from the District Court of Lewis and Clark County. First Judicial District. Hon. Gordon Bennett, Judge Presiding.

J. Allen Bradshaw, Philipsburg, for defendants and appellants

Richard J. Pyfer, Small, Hatch, Doubek Pyfer, Helena, for plaintiff and respondent


Defendant Discovery Ski Corporation (Discovery) appeals from an order of the First Judicial District, Lewis and Clark County, requiring Discovery to dismiss its action against Leasing, Inc (Leasing) filed in Justice Court, Granite County, on the grounds that filing the Justice Court action was an abuse of process. We affirm

The question presented on appeal is: Did the District Court correctly dismiss Discovery's action as an abuse of process and a breach of contract terms when Discovery filed a complaint in Justice Court in Granite County with full knowledge that an action had previously been filed against it by Leasing in Lewis and Clark County?

Leasing is a Helena business that leased fire suppression equipment to Discovery. On October 10, 1986, Leasing filed a complaint against Discovery in the Lewis and Clark District Court for breach of contract

The complaint alleged that on August 7, 1984, Discovery agreed to lease fire suppression equipment from Leasing for a term of ten years at $165.00 per month; that Leasing performed its part of the contract; and that Discovery now refuses to make its payments. The contract signed by the parties contains the following language:

"13. The LESSOR AND LESSEE agree that any cause of action filed as a result of a breach or violation of any terms of this agreement shall be filed in the City of Helena, Lewis and Clark County, State of Montana

"The LESSOR AND LESSEE understand and agree that performance of this agreement is in the City of Helena, Lewis and Clark County, State of Montana."

The sequence of events leading to this dispute is as follows:

October 11, 1986, Peter Pitcher, an officer of Discovery, was served with summons and complaint in this action, by certified mail. The cause of action was for failure to pay sums owed to Leasing under the lease

October 14, 1986, defendant Discovery was served in the same manner

October 23, 1986, Pitcher filed a complaint in Justice Court in Granite County, Philipsburg, Montana, against Leasing. The complaint alleged that Leasing failed to comply with the Montana Fire Code in that Leasing failed to install an automatic electric power shut off device which is required by law

October 28, 1986, the Granite County summons and complaint were served by the sheriff on Neil Flaherty (not a party to this action) as owner of Leasing

November 13, 1986, Leasing made a motion to consolidate the Granite County justice court action and the Lewis and Clark County action on the ground that the subject matter was the same. The motion was denied December 12, 1986

November 18, 1986, Leasing served summons and complaint on Pitcher and Discovery by sheriff's service

December 11, 1986, Discovery, without Pitcher, made a special appearance and a motion to dismiss Leasing's action on the ground that jurisdiction had attached in Granite County

May 15, 1987, Leasing moved for default on the first action on both Discovery and Pitcher for failure to appear. A hearing on that motion was set for May 28, 1987

May 26, 1987, Discovery and Pitcher made a special appearance to dismiss Leasing's action and at the same time responded to Leasing's motion for entry of default for failure to answer by asserting that no answer was due because the previous motion to dismiss for lack of jurisdiction had not been ruled on. They also noted they would not appear at the May 28, 1987, hearing on the motion for default

The general rule of venue is that the proper place of trial for all civil actions is in the county in which the defendants . . reside at the commencement of the action. Section 25-2-118, MCA; see also Deimler v. Ostler (1979), 183 Mont. 480, 600 P.2d 814 However, in actions upon contracts, venue is governed by Section 25-2-121(b), MCA: The proper place of trial for actions upon contracts is:

". . . (b) the county in which the contract was to be performed. The county in which the contract is to be performed is:

"(i) the county named in the contract as the place of performance, . . ."

The contract between Leasing and Discovery contains express terms that the place of performance is Helena, in Lewis and Clark County. The terms of this contract are not contradicted

When, at the time of contracting, the parties have agreed upon a particular county wherein they mutually intended their contract was to be performed such agreement will be respected and given effect for it is a part of the freedom of contract to select the place where the contract will be performed. Hardenburgh v Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151

The contract before us, signed by all parties, plainly indicates that it was the mutual intention of the parties at the time of contracting that the contract was to be performed in Lewis and Clark County and any action brought on the contract was to be brought in Lewis and Clark County

Nonetheless, Discovery, with full knowledge of the pending Lewis and Clark County District Court suit by Leasing, filed an action against Leasing, in the Justice Court of Granite County This was an attempt by Discovery to thwart the plain provisions of the written contract, and a use of the court system to accomplish that goal. Such action constituted an abuse of process. Brault v. Smith (1984), 209 Mont. 21, 28-29, 679 P.2d 236, 240

The District Court is affirmed

MR. JUSTICES WEBER, HUNT, McDONOUGH and GULBRANDSON concur


Summaries of

Leasing, Inc. v. Discovery Ski Corp.

Supreme Court of Montana
Dec 13, 1988
235 Mont. 133 (Mont. 1988)

In Leasing, Inc., the Lewis and Clark County District Court dismissed a lawsuit filed in Justice Court in Granite County because a contract, which was the basis of that suit, provided that it was to be performed in Lewis and Clark County and also provided that the venue of any action on the contract was Lewis and Clark County.

Summary of this case from Seipel v. Olympic Coast Investments

In Leasing, Inc., the suit in the Granite County Justice Court was filed to require the defendant, Leasing, Inc., to litigate in Granite County, rather than proceed with a proper suit on the same contract it had previously filed in the District Court for Lewis and Clark County.

Summary of this case from Seipel v. Olympic Coast Investments
Case details for

Leasing, Inc. v. Discovery Ski Corp.

Case Details

Full title:LEASING, INC., A MONTANA CORPORATION, PLAINTIFF AND RESPONDENT, v…

Court:Supreme Court of Montana

Date published: Dec 13, 1988

Citations

235 Mont. 133 (Mont. 1988)
765 P.2d 176

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