12/20/2016


                                           DA 16-0325
                                                                                        Case Number: DA 16-0325

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 333N



KRISTINE DAVENPORT,

              Plaintiff and Appellant,

         v.

MORRISON & FRAMPTON, PLLC, SHARON M.
MORRISON, SEAN S. FRAMPTON, BRIAN JOOS
and RYAN PURDY,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV-16-132C
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kristine Davenport (Self-Represented), Missoula, Montana

                For Appellees:

                        Fred Simpson, Reep, Bell, Laird, Simpson & Jasper, P.C.,
                        Missoula, Montana



                                                    Submitted on Briefs: November 16, 2016

                                                                Decided: December 20, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     This case arises from a failed subdivision/real estate development project in

Lincoln County, Montana. In 2007, the lending bank loaned the developer $250,000.

Before the project was completed the bank filed to foreclose on the $250,000 loan. In

2008, the developer’s attorney asked the Davenports for financial assistance and the

Davenports agreed to invest approximately $547,000 into the project, allowing the

project to be completed and preventing foreclosure.        The bank agreed to hold the

foreclosure action in abeyance while the development was completed. However, when

the project was completed, the developer failed to sell any properties therein. The bank

amended its original foreclosure complaint to add the Davenports, among others, as

parties and again sought foreclosure.

¶3     Sean Frampton, a Whitefish resident and investor in the development project, as

well as a partner in Morrison & Frampton, a law firm located in Whitefish, Flathead

County, Montana, represented the owners and the developing contractor in the

foreclosure action. According to Kristine Davenport, Frampton induced her to allow a

default judgment to be entered against her in the Lincoln County foreclosure proceeding,


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convincing her that he would obtain a favorable outcome in that litigation and that all the

parties, including those against whom default judgments had been entered, would benefit.

Frampton failed to prevail and the Davenports, and other investors and contractors, lost

considerable funds as well as the property.

¶4        In January 2013, the Davenports, residents of Missoula, Missoula County,

Montana, and acting pro se, sued Morrison & Frampton and its partners, alleging multiple

contract and tort causes of action, including breach of contract, deceit, fraud, and

negligent misrepresentation. They sought compensatory and punitive damages as well as

costs and attorneys’ fees. Early in the proceeding, Kristine’s parents, James, who had

died, and Aileen, were dismissed as parties to the action, leaving Kristine as the sole

plaintiff.

¶5        Morrison & Frampton moved to change venue from Missoula County to Flathead

County. On February 4, 2016, the Fourth Judicial District Court, Missoula County,

granted the motion and instructed the clerk of court to transmit the record to the Flathead

County clerk of court.

¶6        Kristine Davenport appeals the court’s order granting a change of venue. We

affirm.

¶7        The dispositive issue on appeal is whether the District Court erred in granting

Morrison & Frampton’s Motion to Change Venue to Flathead County. We review a

district court’s grant or denial of a motion to change venue for improper county for

correctness. Circle S Seeds of Mont., Inc. v. Mont. Merch., Inc., 2006 MT 311, ¶ 5, 335

Mont. 16, 157 P.3d 671 (citations omitted).

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¶8     The District Court expressly noted that Davenport alleged both contract and tort

claims. It concluded that under § 25-2-121(1), MCA, venue for a contract claim must be

brought in either the county where the defendants, or any of the defendants, reside or in

the county where the contract was to be performed. The court observed that all of the

defendants in this case reside in Flathead County. The court further noted that the

defendants did not perform any contractual services in Missoula County. Consequently,

the District Court ruled that Flathead County was the proper venue for Davenport’s

contract claims.

¶9     Turning to Davenport’s tort claims, the court relied upon § 25-2-122(1)(a) and (b),

MCA, which provides that the proper venue for a tort action is “the county in which the

defendants or any of them reside at the commencement of the action,” or in “the county

in which the tort was committed.”      The statute further provides that if the “tort is

interrelated with and dependent upon a claim for breach of contract, the tort was

committed, for the purpose of determining the proper place of trial, in the county in

which the contract was to be performed.” Section 25-2-122(1)(b), MCA. The court

concluded that the proper venue for Davenport’s tort claims was Flathead County.

¶10    Davenport, continuing to represent herself, argues on appeal that the tortious

actions of deceit and fraud took place in Missoula County when Frampton called

Davenport at her Missoula home and claimed that he would win the Lincoln County

foreclosure action. She asserts that her tort claims were neither related to nor dependent

upon her contract claims and therefore could be tried separately, presumably with the tort

claims being heard in Missoula County and the contract claims being heard in Flathead

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County. Morrison & Frampton counters that the resident county of the defendants is the

proper venue for all of Davenport’s claims. In addition to relying on §§ 25-2-121

and -122, MCA, Morrison & Frampton relies upon § 25-2-116, MCA, which provides:

              In an action involving two or more claims for which this part
       designates more than one as a proper place of trial, a party entitled to a
       change of place of trial on any claim is entitled to a change of place of trial
       on the entire action, subject to the power of the court to separate claims or
       issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure.

¶11    The District Court correctly determined that Flathead County was the appropriate

place of trial for this cause of action. Under the facts of this case and the applicable

statutes, both the contract and tort claims against Morrison & Frampton are correctly

reviewed in the resident county of the defendants. We further conclude that Davenport’s

arguments seeking to place venue in Missoula County based upon Frampton’s alleged

“unclean hands” and her view that venue in Flathead County is “manifestly unjust and

inequitable” are without merit.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the District Court’s interpretation and application of the relevant law was

correct.

¶13    Affirmed.

                                                  /S/ MICHAEL E WHEAT
We Concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE

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