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NO. 89-566
IN THE SUPREME COURT OF THE STATE OF MONTANA 1990
SCHUTZ FOSS ARCHITECTS,
Plaintiff and Respondent,

v.

NICK CAMPBELL, M.D., Defendant & Appellant.
APPEAL FROM: ~istrict Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
The Honorable Diane G. Barz, presiding.

COUNSEL OF RECORD: For Appellant: Patrick E. Melby, Luxan & Murfitt, Helena, Montana For Respondent: Paul D. Miller, Billings, Montana David R. Chisholm, Billings, Montana
submitted on briefs: February 9, 1990
~ecided: May 31, 1990
Filed:

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Defendant and appellant, Dr. ~ick Campbell, appeals from an
order of the Thirteenth Judicial District Court, Yellowstone
County, which denied his motion for change of venue. We affirm.

The sole issue presented on appeal is whether the District
Court abused its discretion in denying Campbell's motion for change
of venue from Yellowstone County to Broadwater County.

In September, 1985, Campbell, a resident of Broadwater County,
entered into a contract with Foss Associates, Ltd., an
architectural firm located in Billings, Yellowstone County. The
contract provided that Foss Associates would render architectural
services in connection with the construction of a medical clinic
in Townsend, Broadwater County.

On June 23, 1989, Schutz Foss Architects filed a complaint
against Campbell in the Yellowstone County District Court, seeking
payment for services rendered on the contract. (Apparently, at
some point between signing the contract and filing the complaint,
Foss Associates changed its name to Schutz Foss Architects.)
Campbell moved the court for change of venue from Yellowstone
County to Broadwater County. After briefing, the District Court
denied the motion, finding that the agreement between the parties
involved a contract for services that were to be performed in
Yellowstone County. From this order, Campbell appeals.

The statute governing venue for actions based upon contracts
provides as follows:

2

(1)
The proper place of trial for actions upon contracts
is either:


(a)
the county in which the defendants, or any of them,
reside at the commencement of the action; or


(b)
the county in which the contract was to be



performed. The county in which the contract was to be
performed is:

(i)
the county named in the contract as the place of
performance; or


(ii)
if no county is named in the contract as the place
of performance, the county in which, by necessarv
implication from the terms of the contract, considerinq
all of the oblisations of all parties at the time of its
execution, the principal activity was to take place.


(2)
Subsections (2)(a) through (2) (d) do not constitute
a complete list of classes of contracts; if, however, a
contract belonqs to one of the followins classes, the
proper county for such a contract for the purposes of
subsection (1)(b) (ii) is:


(a)
contracts for the sale of property or goods: the
county where possession of the property or goods is to
be delivered;


(b)
contracts of employment or for the performance of
services: the county where the labor or services are to
be performed;


(c)
contracts of indemnity or insurance: the county
where the loss or injury occurred or where a judgment is
obtained against the assured or indemnitee or where
payment is to be made by the insurer;


(d)
contracts for construction or repair: the county
where the object to be constructed or repaired is
situated or is to be built. (Emphasis added.)



Section 25-2-121, MCA.

The contract venue statute allows the plaintiff to elect

alternate places for trial. Montana Sup. Ct. Comm'n on the Rules

of Evidence, Recommendations for ~evisions in Venue Statutes,

Report to the Senate Judiciary Comm., 49th Leg. (Jan. 22, 1985) .
Venue may properly be obtained in either the county where the

defendant resides at the time of the commencement of the action or
the county in which the contract was to be performed. Section 25-
2-121 (I), MCA. As Campbell, the defendant in this case, resided
in Broadwater County at the time of the commencement of the action,
venue is proper in Yellowstone County only if that is the county
where the contract was to be performed.

The statute enumerates guidelines to aid the courts in determining where the contract was to be performed. If the contract specifically names a county as the place of performance, venue is proper in that county. Section 25-2-121 (1) (b) (i) , MCA. If the contract fails to name a county where the agreement is to be performed, the court must determine the principal place of performance by considering the terms of the contract and the obligations of all of the parties at the time of the agreement's execution. Section 25-2-121(l)(b)(ii), MCA.
The contract in the present case neglects to identify a place
of performance. Therefore, we must ascertain the county in which
the contract was to be performed.

Subsection (2) of the venue statute assists in resolving the
question regarding where the contract was to be performed by
listing certain classes of contracts and designating the proper
county of trial should the contract fall within one of those
classes. Campbell contends that the agreement in question
constituted a construction contract, the overall purpose of which
was the construction of a medical clinic in Broadwater County.

Therefore, Campbell argues, venue is governed by 5 25-2-121 (2) (d) ,
MCA, which provides that the proper place of trial for construction
contracts is the county where the object to be constructed is to
be built, in this case, Broadwater County.

Schutz Foss, on the other hand, maintains that the agreement constituted a contract for architectural services, and is therefore controlled by 5 25-2-121(2) (b) , MCA, which provides that the proper place of trial for an action based upon a contract for services is the county where the services are to be performed. The District Court agreed with Schutz Foss and found that the agreement was a contract for architectural services governed by 25-2-121(2)(b), MCA. After reviewing the contract, we are compelled to agree with the District Court.
The contract was to be performed in five phases. In the first
phase, Schutz Foss was to prepare Schematic Design Documents, which
consisted of drawings and other documents illustrating the scale
of relationship of the project's components. In the second phase,
Schutz Foss was to prepare Design Development Documents, which
consisted of drawings and other documents describing the size and
character of the entire project with regard to architectural,
structural, mechanical and electrical systems and materials. In
the third phase, Schutz Foss was to prepare Construction Documents,
which consisted of drawings and specifications detailing the
requirements for the construction of the project. In the fourth
phase, Schutz Foss was to assist Campbell in obtaining bids and
awarding the construction contract. Finally, in the fifth phase,

Schutz Foss was to administer the construction contract, which included visiting the site to ascertain the progress of the work and approving charges billed to Campbell by the contractor. The contract specifically provided that Schutz Foss "shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures . . . 'I during the building stage.
An examination of the agreement establishes that, although the ultimate outcome of the contract was to be the construction of a medical clinic in Broadwater County, Schutz Foss was not hired to actually construct the building. Rather, Schutz Foss was hired to render professional architectural services in connection with the building of the clinic. Therefore, the District Court did not err in concluding that the agreement was a service contract governed by 5 25-2-121(2) (b), PICA.
Once it decided that the contract in question was a service
contract, the District Court went on to find that the services were
to be performed in Yellowstone County. Campbell argues that this
finding was erroneous.

The District Court partially relied upon Whalen v. Snell, 205
Mont. 299, 667 P.2d 436 (1983), for its determination that the
contract was to be performed in Yellowstone County. In Whalen, we
noted in dicta that the place of performance of a contract for
attorney services was the place where the client's payment was to
be made. At the time Whalen was written, however, the venue
statutes did not possess a particular provision concerning place

of trial for service contracts. In 1985, the legislature completely revised the venue statutes, adding specific venue rules for particular classes of contracts. See 3 25-2-121(2), MCA. In adding the specific provision governing employment and service contracts found at 9 25-2-121 (2) (b) , MCA, the Commission on the Rules of Evidence stated:
Subsection (2) (b) adopts the rule declared in Hardenbursh
[Hardenburghv. Hardenburgh, 115 Mont. 469, 146 P.2d 151
(1944)l for employment contracts. The Hardenburqh
decision specifically overruled the portion of State ex
rel. Coburn v. District Court, 41 Mont. 84, 108 P. 145
(1910) which had held that the venue of any contract
callins for payment of money was at the residence of the
creditor, but adopted the holdins of Coburn that the
place of performance of a labor contract was the place
where the labor or services were to be performed. No
subsequent cases have dealt with the question, so the
basic rule of Coburn and Hardenbursh is clearly in force
and is expressed in this subsection. (Emphasis added).

Although the Commission failed to mention Whalen in its
comments regarding service contracts, this omission is not
surprising considering the fact that Whalen really concerned venue
for tort, not contract, actions and any comments in that case
concerning venue for contract suits were merely dicta. Accord
Hurly v. Studer, 234 Mont. 100, 761 P.2d 821 (1988). What is
clear from the commissioners^ report is that subsection (2)(b)
adopted the rule that the proper place of trial for employment and
service contracts is the place where the labor or services are to
be performed regardless of the place of payment for the services.

Even though Whalen does not control the decision of this case,
the District Court did not abuse its discretion in determining that
venue was proper in Yellowstone County. The terms of the contract

in the present case indicate that Campbell procured Schutz Fossls
architectural services for the principal purpose of designing a
medical clinic. By their very nature, Schutz Fossls professional
design services were to be performed in its office, the place where
drawing tables and other specialized architectural equipment were
located. Although a portion of the contract required Schutz Foss
to periodically visit the construction site in Townsend and the
affidavit of Campbell indicated that Schutz Foss had met with him
on occasion in Broadwater County, it is clear that the primary
activity to be performed by Schutz Foss was the design of the
structure, an activity that, by necessary implication, principally
occurred in Schutz Fossls offices.

The contract between the parties was a contract for
architectural services. The services were to be performed
principally in the offices of Schutz Foss, which were located in
Yellowstone County. The District Court did not abuse its
discretion in denying Campbell s motion for change of venue from
Yellowstone County to Broadwater County.

Affirmed.

Justice

Chief Justice

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