                                                      No.     88-453

                       I N THE STJPREME COURT O F THE STATE O F MONTANA

                                                            1989




MARTHA M.       B E R L I N and DONALD J .
PETERSON,
                             PLaintiFfs and Respondents,
            -vs-

BRETT A.      ROEDECKER,

                             D e f e n d a n t and A p p e l l ant..




APPEAL FROM:                 D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                             I n and f o r t h e C o u n t v of F l a t h e a d ,
                             T h e H o n o r a b l e L e i f R . E r i c k s o n , Judqe p r e s i d i n g .

COUNSEL O F RECORD:

         For A p p e l l a n t :

                             L o r e n J. O ' T o o l e ,   TI;    OITonle & OIToole, Plentvwood,
                             Montana

            For Respondent:

                             J a m e s A.   Manl-ey, P o l s o n , Montana




                                                            S u b m i t t e d on B r i e f s :    Dec.    9,    1988

                                                               Decid-ed:         January 25,          1989

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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      Defendant appeals from an order by the District Court
of the Eleventh Judicial District, Flathead County, denying
his motion for a change of venue.     We affirm the District
Court's denial.
      In May of 1984, Joseph Berlin, allegedly acting on
behalf of his wife Martha Berlin, and Donald Peterson met
with defendant Boedecker in Dawson County and told Boedecker
of their interest in purchasing mineral investments.      All
orally agreed that Boedecker would find, evaluate and
appraise potential mineral investment opportunities for the
plaintiffs in return for an agreed upon commission.       The
parties did not agree upon a place of performance for this
oral contract.
      Later that same month, defendant Boedecker told
plaintiffs he had a potential seller of such mineral
interests.    The plaintiffs, defendant and the potential
seller (who was defendant's brother) subsequently met
together in Flathead County.     At this meeting, defendant
allegedly apprised plaintiffs of the value of these mineral
interests located in eastern Montana and western North
Dakota.    Plaintiffs subsequently purchased these mineral
interests from the seller for $175,000, and defendant was
paid the agreed upon commission in Nissoula County.
      Plaintiffs later determined that the mineral interests
were nearly worthless.    They then filed suit in Flathead
County on March 10, 1988, alleging in Count I that defendant
breached his contractual obligation by appraising and
evaluating the mineral interests at an inflated value and by
representing the seller's interests while under obligation to
the plaintiffs. Plaintiffs also alleged in Counts I1 and I11
that defendant tortiously breached his fiduciary duty of
reasonable care in regards to the investigation, valuation
and appraisal of the mineral interests and that he committed
constructive fraud.
      Thereafter, on April 11, 1988, defendant filed a timely
motion for change of venue to Dawson County, the county of
his residence.    Following a hearing on May 19, 1988, the
court denied defendant's motion for change of venue.
Defendant appeals from this denial.
      The sole issue raised on appeal is whether Flathead
County is the proper venue for this cause of action.     "The
general rule governing venue of any civil action is that the
action shall be tried in the county in which the defendant
resides."   Whalen v. Snell (1983), 205 Mont. 299, 301, 667
P.2d 436, 437; see also    §   25-2-118(1), MCA.   A plaintiff also
may choose to bring a contract action in the county were a
contract was to be performed.   Section 25-2-121(1) ( b ) , MCA;
Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d
151. However, this performance exception applies only if the
plaintiff clearly shows that the contracting parties mutually
agreed at the time they entered the contract that the
contract was to be performed in a particular county other
than that of defendant's residence. The particular county
must be clear from the express terms of the contract or by
necessary implication from the contract terms.      Armon V.
Stewart (1973), 162 Mont. 262, 264, 511 P.2d 8, 9.
         In the present case, the parties did not have a written
contract with any such express terms. Further, defendant's
oral obligation to evaluate, appraise and recommend certain
mineral investments did not necessarily imply any one county
for performance.               Consequently, the contract performance
exception would not apply to this case and would not justify
the filing of this action in Flathead Countv. See Erickson
~ 7 . TOIT ( 1 9 6 3 ) , 142 Mont. ? ? I , 385 P . 2 d 368.
         A plaintiff also has the option of bringing the action
in the county where the alleged tort was committed.                   By
statute:
                        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 where the
                  contract was to be performed.
Section 2 5 - 2 - 1 2 2 ( 2 ) ,   MCA.   This statutory determination of
the situs of a tort generally applies only to a hybrid
tort/contract case with an interrelated and dependent tort
claim and a contract clearly indicating a place of
performance.  Slovak v. Kentucky Fried Chicken (1974), 164
Mont. 1, 7, 518 P.2d 791, 794.
      This statutory determination of the place of a tort in
a hybrid case was not intended to create new law but only to
codify existing case law. Weiss v. State (Mont. 1986), 712
P.2d 1315, 1317, 43 St.Rep. 82, 84, quoting from Comments by
the Montana Supreme Court Commission on the Rules of
Evidence. We thus interpret this statute as being in accord
with existing case law.   Montana case law resorted to this
hybrid case rule when the contract clearly indicated a place
of performance and the parties contested the place of the
tort. See, Slovak, 518 P.2d at 794; see also Brown v. First
Federal Sav. & Loan Ass'n of Great Falls (1964), 144 Mont.
149, 394 P.2d 1017.    Consequently, when no clear place of
performance is indicated in the contract, as in the present
case, this hybrid case rule provides little guidance as to
where a tort was committed. We therefore will look to the
facts to determine the actual place where the alleged tort
occurred.
      The facts in this case indicate that any tort resulting
from defendant's alleged misrepresentation of the proper
value of the mineral interests would have had to occur in
Flathead County as this is the county where the defendant.met
with the plaintiffs and the seller and discussed the value of
the seller's mineral interests. Consequently, the District
Court did not abuse its discretion when it denied defendant's
motion to move the action to Dawson County.            The District
Court had to change the place of trial, upon motion, if the
county designated in the complaint was not the proper county.
Section 2 5 - 3 - 2 0 1 (11, MCA. Yet, the facts indicated that the
alleged tort occurred in Flathead County and the plaintiffs
were thus entitled to file this case in that county.
      The District Court's denial of the motion for change of
venue is affirmed.




we concur:




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Justices
