Motion for Change of Venue in Montana

What Is a Motion for Change of Venue?

Understanding the Purpose and Significance of a Motion for Change of Venue

“This Court has long recognized the distinction between ‘jurisdiction’ and ‘venue.’ In general terms, jurisdiction is a court's authority to hear and determine a case, and goes to the ‘power’ of the court. Jurisdiction cannot be waived or conferred by consent of the parties where there is no basis for jurisdiction under the law.” (See In re Support Obligation of McGurran (2002) 310 Mont. 268, 271-72; Stanton Trust Savings Bank v. Johnson (1937), 104 Mont. 235, 235, 65 P.2d 1188, 1189; In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380.)

“Venue, on the other hand, refers to the place where the case is to be heard, or where the power of the court can be exercised.” (See id.)

“Venue is a personal privilege of the defendant and, thus, may be waived. It is, in fact, deemed waived unless a motion to change the venue is made at the defendant's initial appearance.” (See id; Rule 12(b)(ii), M.R.Civ.P.)

“The most important difference between venue and jurisdiction is that a party may consent to be sued in a district that otherwise would be an improper venue, and it waives its objection to venue if it fails to assert it promptly.” (See In re Support Obligation of McGurran (2002) 310 Mont. 268, 272; Black's Law Dictionary 1554 (7th ed. 1999) [citing Charles Alan Wright, The Law of Federal Courts § 42, at 257 (5th ed. 1994)].)

Rules for Filing a Motion for Change of Venue

Chapter 2 of the Montana Code governs venue.

Specifically, section 25-2-201 governs when a change of venue is required.

“The court or judge must, on motion, change the place of trial in the following cases:

when the county designated in the complaint is not the proper county;
when there is reason to believe that an impartial trial cannot be had therein;
when the convenience of witnesses and the ends of justice would be promoted by the change.”

(See Mont. Code § 25-2-201.)

Discretion of the Court in Deciding a Motion for Change of Venue

“The rule is well-settled that [1] the matter of granting or refusing a motion for change of venue rests in the sound discretion of the trial court and that its discretion will be disturbed only when it appears that the court has abused its discretion.” (See Little v. Strobel (1959) 136 Mont. 272, 275.)

“The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” (See Tripp v. Jeld-Wen, Inc. (2005) 327 Mont. 146, 149; Jarvenpaa v. Glacier Electric Co-op (1998) 292 Mont. 118, 121.)

Legal Precedents and Case Law on a Motion for Change of Venue

“It is well settled that denial of a motion for change of venue under § 25-2-201(3), MCA, is not immediately appealable, it must await final judgment.” (See M. R. App. P. 6(3)(f); Betts v. Gunlikson (2019) MT 183, 8; Minervino v. Univ. of Mont. (1993) 258 Mont. 493, 495, 853 P.2d 1242, 1244 [holding [t]his Court will not consider issues or theories of the case raised for the first time on appeal].)

It is also well settled that “a defendant may move for a change of venue when the county in which the action is brought is not designated as a proper place for trial, and a district court must grant such a motion when the county designated in the complaint is not the proper county. The general rule for venue in civil actions is that the proper place for trial is the county in which the defendants or any of them reside at the commencement of the action." (See DML, Inc. v. Fulbright (2005) MT 204, 217; Sections 25-2-114 and -201(1), MCA; Section 25-2-118(1), MCA.)