                             NO.    94-442
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


MICHAEL D. MORAN,
          Plaintiff and Appellant,
     v.
GRAHAM JACKSON, individually, and
AMCO Building Systems, Inc.,
a Montana corporation,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Ted 0. Lympus, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Andrew M. Bittker, Attorney at Law,
               Kalispell, Montana
          For Respondents:
               Kathleen O'Rourke-Mullins, Sullivan
               & Tabaracci, Missoula, Montana


                               Submitted on Briefs:     April 11, 1995
                                             Decided:   June 19, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

        The       plaintiff,   Michael D. Moran,    filed a complaint in the

District Court for the Eleventh Judicial District in Flathead

County, in which he named Graham Jackson and AMCO Building Systems,

Inc.,        as    defendants.     The bases for his complaint were the

defendants'          alleged breach of contract,         negligence,   breach of

warranty,          fraud,   and   misrepresentation.       The District    court

concluded that pursuant to the parties' contract proper venue for
Moran's claims was in Missoula County,                   and dismissed Moran's

complaint.          Moran appeals the order of the District Court dated

May 12, 1994.          We affirm in part and reverse in part.

        The following issues are raised on appeal:

        1.        Did the District Court err when it refused to enjoin

defendants from bringing a foreclosure action?

        2.        Did the District Court err when it concluded that

pursuant to the parties' contract, the proper venue for the claims

raised by the plaintiff was in Missoula County?

        3.        Did the District Court err when it dismissed plaintiff's

complaint based on its conclusion that venue was proper in Missoula

County?
        4.        Was it an abuse of process for defendants to commence

their foreclosure action in Missoula County while plaintiff's claim

was still pending in           Flathead County?
                                  FACTUAL   BACKGROUND

        On February 26, 1993, Moran filed a complaint against Graham

Jackson and AMCO Building Systems, Inc.             His complaint was based on

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a contract between himself and the defendants for real property

improvements in Flathead    County.      He alleged that the defendants

had breached their building contract with him, that they performed

their responsibilities pursuant to that contract negligently and

recklessly,   that they breached their warranties to him, that they

misrepresented their qualifications to him, and that as a result of

these actions, he had sustained damages.         On March 5, 1993, Moran

filed an application for a preliminary injunction and an enparte

temporary restraining order in which he asked that the defendants
be prevented from transferring the promissory note he had signed,

and from taking any action to enforce the note.        The District Court

granted Moran's request for an exparte temporary restraining order

on March 31, 1993.     Defendants       disqualified    District       Judge

Michael H. Keedy, and Judge Ted 0. Lympus assumed jurisdiction. On

August 13, 1993, the    District    Court   modified   the   exparte temporary

restraining   order.   It enjoined defendants from transferring the

promissory note, but dissolved all other aspects of the order.
     On August 19, 1993,      defendants filed a motion to dismiss

Moran's   complaint.   On May 12, 1994, the       District   Court   granted

defendants' motion to dismiss based on its conclusion that pursuant

to the parties' contract, venue was proper in Missoula County.
     Prior to the District Court's dismissal of Moran's complaint,

defendants had already filed a complaint in the District Court for

the County of Missoula to enforce the promissory note between them
and Moran.


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                                     ISSUE 1
      Did the District Court err when it                    refused to enjoin
defendants from bringing a foreclosure action?
      Moran contends that the District Court erred when it refused
to continue that part of the temporary restraining order which
enjoined the defendants from commencing any action to enforce the
promissory note which had been executed by the parties.                           He
contends that had the District Court enjoined the Missoula County
action, the issues raised by his complaint in Flathead County, and
the foreclosure action commenced by the defendants in Missoula
County could have been resolved in one action and that multiplicity
of litigation could have been avoided.
           The allowance of a preliminary injunction is vested
     in the discretion of the District Court, the exercise of
     which the Supreme Court will not interfere with except in
     instances of manifest abuse. Porter v. K & S Partnership ( 19 8 I ) ,
      [192 Mont. 175,] 627 P.Zd 836.                   In reviewing this
     discretion, the question is whether the trial court
     acted,    'I [Alrbitrarily       without       the     employment of
     conscientious judgment or exceedted the bounds of
     reason, in view of all the circumstances, ignoring
     recognized      principles         resulting               substantial
     injustice."     In Re the Marriage of Jermuson v. Jer%son ( 19 7 9 ) , 181
     Mont. 97 at 100, 592 P.2d 491 at 493; citing Porterv.Porter
     (1970), 155 Mont. 451, 473 P.2d 538.
Smith v. Ravalli County Bd ofHealth (X984), 209 Mont. 292, 295, 679 P.2d

1249, 1251.
     In this case, because we affirm the transfer of venue from
Flathead County to Missoula County, and because the Missoula County
District   Court has       the authority        to consolidate plaintiff's
complaint and defendants' complaint, multiplicity of litigation can


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be avoided without the preliminary injunction sought by Moran.

Therefore,    we conclude that the District Court did not abuse its

discretion,     and we affirm the District Court's refusal to enjoin

defendants    from     commencing      any   action     to   enforce      the   promissory

note executed by them and Moran.

                                        ISSUE 2

     Did the District Court err when it concluded that pursuant to

the parties' contract, the proper venue for the claims raised by
the plaintiff was in Missoula County?

     Moran contends that the District Court erred when it concluded

that venue was proper in Missoula County.                          He contends that

pursuant to §§ 25-2-121(b), -123, MCA, Flathead County was the

proper venue for his complaint because that is the location where

his contract with the defendants was to be performed, and because

his complaint was for damage to real property.                      He also contends

that pursuant to § 25-2-201(3), MCA, venue, even if proper in

Missoula     County,    should be transferred to                Flathead        County to

promote convenience of witnesses and the ends of justice.

     However,        paragraph      eight        of   Moran's   contract         with    the

defendants    provides     that   "[iIf      any suit or action is commenced,

Purchaser agrees that the venue of said action shall be in Missoula
County,    Montana,     and further agrees to pay AMCO a reasonable

attorney's fee therein."          In    Montana Wholesale Accounts Y. P     ington   (1988),

233 Mont. 72, 758 P.2d 759, we held that contractual stipulations

for venue in the event of a contract dispute do not violate the
public policy of this state,                 and are         in fact authorized by

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§ 25-2-202, MCA.      We further held that when faced with a motion to

change venue from the county agreed upon by the parties for the

convenience of witnesses or to promote the ends of justice pursuant

to § 25-2-201, MCA,        the district court's decision will not be

disturbed in the absence of clear evidence of abuse of that

discretion. Penington, 758 P.2d at 760.          Based on the record before

us, we     conclude that the District Court                 did not abuse its

discretion when it concluded that the proper venue for Moran's

complaint was Missoula County.
                                  ISSUE 3

     Did the District Court err when it dismissed plaintiff's

complaint based on its conclusion that venue was proper in Missoula

County?
     We review a district court's conclusions regarding venue to

determine whether they are correct.             State v. Pegasus Gold Corp. (Mont.

1995),    889 P.2d 1197, 1199, 52 St. Rep. 64, 65 (citing Carterv. Nye

(1994),   266 Mont.   226, 228, 879 P.2d 729, 730).

     Section 25-2-112, MCA, provides that "[tlhe designation of a

county . . . as a proper place of trial is not jurisdictional and

does not prohibit the trial of any cause in any court of this state

having    jurisdiction."

     Section     25-2-201(l),    MCA,       states   that    when   the   county

designated in the complaint is not the proper county, the court

must, on motion, change the place of trial.            There is no provision




                                        6
for dismissal of an action over which the district court has

jurisdiction because venue is more appropriate in another county.
        We conclude that the District Court erred when it dismissed

Moran's complaint based on its conclusion that the proper venue was

in Missoula County.           That part of the District Court's order is

reversed.        Based on its conclusion, which we have affirmed, that

venue is proper in Missoula County, the District Court should,

after remand of this matter,           transfer     Moran's   complaint   to   the

District Court for the Fourth Judicial District in Missoula County.

        As a related issue, Moran contends that the defendants waived

any right they had to move for a change of venue by not making that

motion at the time of their initial appearances, as required by

Rule 12(b) (i) and (ii), M.R.Civ.P.             However, we conclude that the

time of either defendant's initial appearance is anything but clear

based on the record in this case, and therefore, hold that the

District Court did not abuse its discretion when it concluded that

defendants moved for a change of venue at the time of their initial

appearance.

                                      ISSUE 4

        Was it an abuse of process for defendants to commence their

foreclosure action in Missoula County while plaintiff's claim was

still pending in Flathead County?

        Based on our decision in Leasing, Inc. v. DiscoverySkiCorp.   (1988) , 235

Mont.     133,   765   P.2d   176,   Moran contends that the defendants'

commencement of an action in Missoula County while this action was

still pending was an abuse of process.            However, the facts in Leasing,

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Inc. ,   are distinguishable from those in this case.          The   contract

between the parties in that case actually provided that the place

of performance was           in the county where the initial suit was

brought.         We held that the second suit was an abuse of process, not

because the first suit was pending, but because bringing it at a

different location was contrary to the terms of the contract that

the parties sought to enforce.             The reason for our conclusion is

plain from the concluding paragraph of that decision where we held

that:

                 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 y. Smith (19841, 209 Mont. 21, 28-29, 679 P.2d 236,
         240.

Leasing, Inc.,   765 P.2d at 178.

         For these reasons, we conclude that, based on the facts in

this case,         the   defendants'   commencement of a second action in

Missoula County was not an abuse of process
         The order of the District Court, except for its dismissal of

Moran's      complaint,     is affirmed.       This case is remanded to the

District Court for further action consistent with this opinion,

including transfer of Moran's complaint to the District Court for

the Fourth Judicial District in Missoula County, Montana.

         Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as


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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:




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