Sprinkle v. Burton

• Decision Date: 27 December 1996
• Docket Number: No. 96-225,96-225
• Citation: 935 P.2d 1094,280 Mont. 358
• Parties: Johnathan B. SPRINKLE and Roger Golden, Plaintiffs and Respondents, v. James BURTON, M.D., Defendant and Appellant.
• Court: Montana Supreme Court

Page 1094

935 P.2d 1094

280 Mont. 358

Johnathan B. SPRINKLE and Roger Golden, Plaintiffs and Respondents, v. James BURTON, M.D., Defendant and Appellant.

No. 96-225.

Supreme Court of Montana.

Submitted on Briefs Oct. 10, 1996.

Decided Dec. 27, 1996.

Randy J. Cox, Boone, Karlberg & Haddon, Missoula, for Appellant.

Erik B. Thueson, John A. Kutzman, Thueson & Lamb, Helena, for Respondent.

NELSON, Justice.

James Burton, M.D. (Dr. Burton) appeals from an April 4, 1996 order of the Eighth Judicial District Court, Cascade County, denying his motion for change of venue. We reverse and remand.

Background

The record before us on appeal discloses that Plaintiffs Johnathan B. Sprinkle and Roger Golden, former employees of Burlington Northern Railroad, (BN), sued the railroad in separate actions under the Federal Employers' Liability Act (FELA) in Great Falls, Cascade County, Montana. Plaintiffs claimed damages for back injuries which they sustained in the course of their employment.

Pursuant to Rule 35, M.R.Civ.P., BN hired Dr. Burton as an expert witness to conduct independent medical examinations of both Sprinkle and Golden. Those examinations were conducted in Missoula, Missoula County, Montana, the location of Dr. Burton's professional office and residence. Dr. Burton charged BN $125.00 per hour for his services in this regard.

During the course of the litigation, by agreement of counsel, Plaintiffs' counsel deposed Dr. Burton in Missoula, Montana. Dr. Burton charged Plaintiffs' counsel $500.00 per hour for his time spent in the taking of his depositions. Believing that they had been overcharged by Dr. Burton, both Sprinkle and Golden filed motions in their respective cases seeking adjustment of his charges. It is undisputed that Dr. Burton never came to Cascade County in connection with either suit; all of his activities in connection with these lawsuits took place in Missoula.

Plaintiffs' FELA actions were both settled before trial and, by stipulation and order, each case was dismissed with prejudice, Sprinkle's on May 17, 1995 and Golden's on January 2, 1996. Neither of Plaintiffs' motions for adjustment of Dr. Burton's charges were ruled upon by the trial court prior to the case being dismissed with prejudice.

Subsequently, on January 4, 1996, Plaintiffs, by their counsel, filed suit against Dr. Burton in Cascade County seeking a ruling from the District Court that the doctor's charges were unconscionable and unenforceable. Plaintiffs' suit in Cascade County was premised on the court having continuing jurisdiction over Dr. Burton as an officer of the court or, alternatively, that Dr. Burton's fees were not reasonable as required by Rule 26, M.R.Civ.P.

Dr. Burton moved to change venue from Cascade County to Missoula County, the county of his residence and the county where his depositions were taken. The District Court denied Dr. Burton's motion for change of venue. This appeal followed.

Discussion

The issue on appeal is whether the District Court erred in denying Dr. Burton's motion for change of venue on the facts of this case. We conclude that the court erred.

Whether a county is a proper place for trial is a question of law involving the application of the venue statutes to pleaded facts. State v. Pegasus Gold Corp. (1995), 270 Mont. 32, 35, 889 P.2d 1197, 1199 (citing Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245). Accordingly, our review of a district court's grant or denial of a motion for change of venue is plenary; we simply determine whether the court's ruling was legally correct. Pegasus, 889 P.2d at 1199 (citing Carter v. Nye (1994), 266 Mont. 226, 228, 879 P.2d 729, 730). See, also Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.

In denying Dr. Burton's motion for change of venue, the District Court ruled that under Rule 26(b)(4)(C), M.R.Civ.P., it was obligated to require the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B). Noting that the issue of Dr. Burton's fees had been raised in the underlying cases but not resolved prior to dismissal and citing our decision in Schweigert v. Fowler (1990), 240 Mont. 424, 784 P.2d 405, the court concluded that, as it was the trial court in both cases, it implicitly had the duty to rule on issues of fees for expert witnesses, including Rule 35 examiners, for discovery which it ordered. On that basis the court determined that Cascade County was the proper county for the place for trial of Plaintiffs' suit against Dr. Burton.

While the designation of a county as a proper place for trial is not jurisdictional, § 25-2-112, MCA, the trial court's ruling on Dr. Burton's motion for change of venue was to a great extent bound up with the notion that the court retained or had continuing jurisdiction of Plaintiffs' instant case because it had presided over the underlying lawsuits and because Plaintiffs' motions for adjustment of Dr. Burton's deposition charges were first raised in the underlying litigation and were then within the authority of the court to resolve under Rule 26(b)(4)(C), M.R.Civ.P. Accordingly, we address this aspect of the trial court's decision first.

Clearly, as Dr. Burton concedes, during the pendency of the underlying cases the District Court would have had jurisdiction under Rule 26(b)(4)(C) to resolve the issue raised by Plaintiffs' motions. Rule 26(b)(4)(C), M.R.Civ.P., provides:

Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) [pertaining to Rule 35 experts] of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

While Schweigert says nothing to the contrary, we conclude that case does not provide the authority for the trial court's decision in the instant case. In Schweigert, the issue of the payment of expert witness' fees was raised in a post-trial motion to alter or amend the judgment. The underlying litigation was still pending when the trial court denied the motion. In affirming the district court, we simply held that the rule does not require the court to order payment of expert witness deposition fees, unless the court had ordered this discovery, and even then the court may not order payment if manifest justice would result. Schweigert, 784 P.2d at 411-12.

Here, despite the District Court's statement to the contrary, the court did not order Dr. Burton's depositions to be taken. Rather, the depositions were taken by agreement of counsel. More importantly, however, the motions for adjustment of Dr. Burton's deposition charges were not ruled upon during the pendency of the underlying litigation, contrary to what occurred in Schweigert. Rather, here, both cases were dismissed with prejudice leaving the motions concerning Dr. Burton's deposition charges unresolved.

We have held, albeit in a criminal case, that when a case is dismissed "with prejudice" the trial court thereafter loses jurisdiction of the underlying litigation, other than to correct clerical errors. State, ex rel. Torres v. District Court (1994), 265 Mont. 445, 453, 877 P.2d 1008, 1012-13. Our decision in Torres was premised in part on the rule of finality of dismissals with prejudice set out in Schuster v. Northern Co. (1953), 127 Mont. 39, 45, 257 P.2d 249, 252, a civil case.

Accordingly, to the extent that it based its decision to deny Dr. Burton's motion for change of venue on the basis that, having had the jurisdiction to decide the Rule 26(b)(4)(C) issue in the underlying lawsuits prior to their dismissal with prejudice, that jurisdiction simply continued into the new, instant litigation or was retained following such dismissal, the District Court was in error. To the contrary, having dismissed the underlying lawsuits with prejudice, any authority which the trial court derived from its jurisdiction in such cases ended with their dismissal.

In so ruling we neither explicitly nor implicitly decide any other issue as to the effect of the trial court's dismissal with prejudice of the underlying litigation on the merits of Plaintiffs' instant lawsuit. The only issue properly before us on appeal and, consequently, the only issue which we are deciding is the venue question.

That brings us to the central issue. On the facts of this case, independent of the underlying litigation, was Cascade County a proper venue for Plaintiffs' present action against Dr. Burton?

It is axiomatic "that venue will be determined by the status of the parties and pleadings at the time of the complaint or at the time the moving party appears in the action." ... Moreover, "[t]he averments of the complaint will be taken as true in considering the motion...."

Pegasus, 889 P.2d at 1199 (citations omitted). If an action is filed in a county which is not designated as a proper place of trial, a defendant may move for a change of venue. Sections 25-2-114 and 115, MCA.

As the starting point for our analysis of venue questions we look to § 25-2-118, MCA, which provides, in pertinent part:

Unless otherwise specified in this part:

(1) except as provided in subsection (3) [not at issue here], the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action;

In this case it is not disputed that at the time Plaintiffs' instant complaint was filed and at the time Dr. Burton first appeared in this action, he resided in Missoula...