                                    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:
