IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 92-011
PAT M. GOODOVER,
Plaintiff and Respondent,
-v-
LINDEY'S INC.
Defendant and Petitioner.
Lindey's has filed an application for a writ of review
together with a memorandum requesting this Court to dismiss an
order finding Lindey's in contempt. The order fined Lindey's $500
and imprisoned its chief executive officer for five days. The
imprisonment was suspended to give Lindey's an opportunity to purge
itself of contempt. Goodover has filed a response to the petition
and Lindey's has filed a reply to the response. We issue the writ
and vacate the order of contempt.
The issues are:
1. Did the District Court have authority to find Lindey's in
contempt?
2. Did the District Court err in awarding Goodover attorney
fees?
The court based the contempt order on its decree entered in
the previous case of Goodover v. Lindey's Inc. (1988), 232 Mont.
302, 757 P.2d 1290, (Goodover I). That case involved the placement
or staking of a monument which is the Northwest corner of Lot 1 and
the Northeast corner of Lot 2 of Seeley Lake Shore Sites. The
court found that the true and correct boundary between Lots 1 and
2 had been reasonably retraced by Goodover's Exhibits No. 31 and
34. Certificate of survey No. 2351, Missoula County, therefore,
should be amended to conform to such findings and conclusions and
should reflect the corners and boundary line of Lots 1 and 2, as
established by Goodover's Exhibit No. 34.
The judgment and decree reads as follows:
JUDGMENT AND DECREE
IT IS THEREFORE ORDERED AND DECREED and this does
order that Judgment and Decree be herein entered in favor
of the Plaintiff, Pat M. Goodover, and against the
Defendants, Lindey's, Inc., and Estate of William C.
Forest, as follows:
The North-South boundary between Lot 1 and Lot 2,
Seeley Lake Shore Sites, is established by Plaintiff's
Exhibits 3 1 and 34, Martinson Survey - the northeast
corner of Lot 2 is an inch and one-half pipe located
approximately 5.5 feet east of Plaintiff's boathouse as
shown on Plaintiff's Exhibits 3 1 and 34.
The Plaintiff was and now is the lawful owner in fee
simple of Lot 2, Seeley Lake Shore Sites, Missoula
County, Montana.
COS 2351 is amended to reflect the boundary lines
and northeast corner of Lot 2, Seeley Lake Shore Sites,
and lake frontage for Lot 2, Seeley Lake Shore Sites,
consistent with Plaintiff's Exhibits 3 1 and 34.
Plaintiff's damages are to be determined following
the submission of evidence at hearing to be scheduled
later for that purpose.
Plaintiff is awarded his costs of suit.
After the court issued this decree, there were supplemental
proceedings concerning the removal of encroachments which is
Goodover v. Lindey's Inc. (1990), 246 Mont. 80, 802 P.2d 1258,
(Goodover 11). This Court affirmed both Goodover I and Goodover
11.
-
In Goodover I1 we rejected Lindey's assertions as an attempted
relitigation of the boundaries established in Goodover I. When the
second appeal was underway, a surveyor hired by Lindey's retraced
the boundary lines of Lots 1, 3 and 5. The surveyor used as a
monument location for the Northeast corner of Lot 2 or Northwest
corner of Lot 1, a different corner than that found to be the true
corner in Goodover I. The surveyor proposed and filed certificate
of survey No. 3861 containing these erroneous corners and lines.
The certificate of survey portrayed deviations fromthe retracement
survey which this Court found to be true and correct in Goodover I.
Lindey's was cited for contempt for the filing of this
certificate of survey. In answer to the contempt citation,
Lindey's asked that the order to show cause be dismissed on the
grounds that the decree did not order Lindey's to do or not to do
any specific act, and therefore the filing of the certificate of
survey was not a contemptuous act on its face. They also alleged
that the surveyor, an independent contractor, filed the certificate
of survey, and Lindey's could not be held liable or in contempt for
the surveyor's acts.
Goodover contends that it is reasonable to inquire into the
underlying dispute and issues to determine if the court's judgment
is unclear or ambiguous. Goodover further contends that this can
be done by reviewing the findings of fact, conclusions of law and
decree.
There are two purposes of a contempt order--to vindicate the
dignity of the court's authority and to persuade the contemptor to
do what the law requires. Dunlevey v. Doggett (1909), 38 Mont.
204, 208, 99 P. 436, 437; 17 Am.Jur.2d Contempt 5 130.
"[Dlisobedience of any lawful judgement, order, or process of the
court" constitutes the only possible contemptuous behavior in this
case. See S 3-1-501(e), MCA,
The pertinent part of the decree by order establishes the
boundary line between the lots and also the monument of the
Northeast corner of Lot 2. The decree further states that Goodover
was the owner of Lot 2 and the plat was amended to be consistent
with Goodover's Exhibits 31 and 34. Such decree established the
boundaries, monuments and rights of ownership.
I1Contempt proceedings . . . have most, if not all, of the
characteristics of a criminal case and few, if any, of a civil
action." Dunlevev 99 P. at 437. Normally violations of rights of
ownership do not constitute contempt of court even though such
rights have been ascertained and declared by judgment, unless such
violations consist of doing something which was prohibited, or of
failing to do something which was required, by the judgment. 17
Am.Jur.2d Contempt, 5 130.
Goodover cites Walker v. Warner (1987), 740 P.2d 1147, 228
Mont. 162, to support his position that Lindeyrs filing of the
certificate of survey constituted contempt. However, the case is
not applicable to the present case. In that case, the district
court's final judgment specifically ordered the parties to comply
with the provisions of their agreement, whereas in this case the
decree did not order the parties to do anything or not to do
anything.
In another case, a water decree determined the relative water
rights of parties of which the defendant was one. The defendant
violated the decree by opening a headgate and using water needed by
prior appropriators, and did so in direct violation of orders from
the water commissioner. Zosel v. District Court (1919), 56 Mont
578, 580, 185 P. 1112, 1113. The court held such act constituted
a prima facie violation of the decree and contempt of court.
Zosel
I 185 P. at 1113. This case, however, does not support
Goodover because the water commissioner is an agent of the court.
The defendant violated a direct mandate of the water commissioner
and therefore was properly found in contempt. See 5 85-5-406, MCA.
As stated above, the decree in the present case does not
direct Lindeyls to do or refrain from doing anything that is
required by the judgment; it determines property rights. If there
is no command, there is no disobedience. A person may not be held
in contempt of court for violating an order, unless the terms of
the order are definite, certain, and specific. See Mr. Steak, Inc.
v. Sanquist Steaks, Inc. Minnesota (Minn. l976), 245 N.W.2d 837,
838; Sellman v, Sellman (Md. 1 9 6 5 ) , 209 A . 2d 61, 62. In this case,
supplemental orders would be necessary to form a basis for
contempt.
We conclude that Lindey's did not violate a court order that
would serve as a foundation for contempt. Therefore, the court did
not have the authoxity to find Lindeyts in contempt.
If attorney fees were allowable in this case, it would not be
proper to allow them here because Goodover was not the prevailing
party. The order finding Lindey's in contempt is vacated and set
aside. The action is dismissed and the award of attorney fees is
reversed.
Chief Justice
Justices
February 18, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Paul Neal Cooley
Skelton & Cooley
101 E. Main
Missoula. MT 59802
John W. Larson
Attorney at Law
2806 Garfield, Ste. F
Missoula, MT 59801
Hon. Jack L. Green
District Judge
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA