RAY 

No. 81-355 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

LILIENTHAL, 

Petitioner and Appellant, 

DISTRICT COURT OF THE SIXTEENTH JUDICIAL 

DISTRICT, ROSEBUD COUNTY, & HONORABLE 

A.B. COATE, Judge thereof. 

Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud 

Honorable A. B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Carlson and Hegel, Miles City, Montana 

James R. Carlson argued, Miles City, Montana 

For Respondent : 

Lucas and Monaghan, Miles City, Montana 

A. Lance Tonn argued, Miles City, Montana 

Submitted: April 5, 1982 

Decided: September 9, 1982 

Filed: SEP . 9 1982 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Appellant Lilienthal appeals a Rosebud County District 

Court judgment finding him in contempt of court for his 

failure to vacate real property belonging to the Powder 

River County Bank (Bank) and ordering him to pay the Bank 

$5,500 in compensatory damages. 

He raises essentially two issues on appeal: (1) He 

claims that he was denied due process because the District 

Court did not allow him sufficient time to seek legal 

assistance before declaring him in contempt. (2) He claims 

that the District Court had no jurisdiction to award compensatory 

damages to the Bank because they are not allowed in contempt 

actions. 

We reverse the judgment on the ground that the District 

Court improperly rendered judgment by denying Lilienthal 

adequate time to prepare for the court's contempt hearing, 

and hold that because this action was one in the nature of a 

trespass as well as contempt, the District Court could award 

compensatory damages in an amount reasonably proportionate 

to the damages suffered by the Bank. However, there is no 

evidence in the record regarding the reasonableness of the 

damages, and therefore, the award is vacated and the case 

remanded for reconsideration of this issue. 

Lilienthal has also requested that we issue either a 

writ of supervisory control or a writ of certiorari because 

the District Court exceeded its jurisdiction by awarding the 

compensatory damages. We decline to issue the writs but 

have resolved the same questions in this appeal. 

In November 1980, the Rank filed a complaint alleging 

that in September 1979 Lilienthal had conveyed real property 
in Rosebud County to the Bank under a confession of judgme~t, 

but had refused to remove his six unit trailer motel from 

the property. The Bank alleged in its complaint that this 

trespass entitled it to an order compelling Lilienthal to 

remove the motel and pay the Bank's costs in the action. In 

January 1981, the court entered Lilienthal's default, ordered 

him to remove the motel, and authorized the Bank to remove 

it if he failed to do so. 

In late February 1981, the Bank moved the court to 

compel performance of its order and to find Lilienthal in 

contempt because the motel had not yet been removed. 

The Bank alleged the sheriff refused to remove the motel 

because people were residing in it. Lilienthal appeared 

without counsel and explained that he was having trouble 

finding someone experienced in moving this type of trailer 

motel, and that he was having trouble evicting his remaining 

four tenants because it was the middle of winter. The Bank 

requested that Lilienthal be declared in contempt of court 

and that he be given one week (until 5:00 p.m. March 16) to 

remove the motel or be assessed a $500 per day penalty until 

its removal. The court asked Lilienthal if the Bank's 

request sounded reasonable and Lilienthal replied "Yes." 

The court granted the Bank's motions and stated that it 

would sign an order as soon as the Bank's attorney prepared 

one. On March 12, the court signed the Bank's prepared 

order, finding Lilienthal in contempt and giving him until 

5:00 p.m. March 16 to remove the motel or be penalized in 

the amount of $500 per day. 

On April 1, the Bank informed the court that as of 2:OO 

p.m. March 23, the motel still had not been removed, and 

moved the court to assess the $500 per day penalty. On 
Thursday, April 2, Lilienthal was served with notice to show 

cause at 10:OO a.m., Monday, April 6. Lilienthal appeared 

without counsel on April 6 and informed the court that he 

had been unable to reach his attorney on the previous Friday 

(the only remaining working day before the hearing) and knew 

that he needed counsel in the matter. Nonetheless, the 

court allowed the hearing to continue. When called as an 

adverse witness, Lilienthal testified that the motel finally 

had been removed but that he was unsure of the exact date on 

which it had been done. The court found that Lilienthal 

had complied by removing his property on March 27, and 

therefore the $500 per day penalty was assessed for 11 days. 

Again, the court relied upon the Bank's attorney to prepare 

an order, On April 10, the court signed the Bank's prepared 

order, finding Lilienthal in contempt, for failing to comply 

with the March 12 order, and assessed a $5,500 penalty to be 

?aid to the Bank. 

Lilienthal, through an attorney, then moved the court 

to vacate its judgment, and allow him either a new trial or 

the opportunity to purge himself of the contempt citation. 

The court denied Lilienthal's mction, stating that the Bank's 

choice of language finding Lilienthal in contempt was unfortunate 

since the case was never a contempt action, but one in the 

nature of a trespass. The court determined that Lilienthal 

had ample time in which to obtain counsel, and that since 

this was not a criminal action, the court was not obligated 

to require him to have counsel. The court further found 

that its March 12 order did nothing but establish the Bank's 

liquidated damages. Lilienthal then took this appeal. 

We must first address a contention by the Bank that 

this appeal was not timely. The Bank argues that Lilienthal 
filed his motion for an opportunity to purge himself of 

contempt on April 21, 1981, but that the District Court did 

not hear the motion within ten days as required by Rule 

59(d), M.R.Civ.P. It is the Bank's position that this motion 

was then deemed denied 15 days after it was submitted (May 

6, 1981) and that the 30 day period for filing the notice of 

appeal commenced on that date and terminated on June 5, 

1981. Therefore, the Bank contends that the July 2, 1981 

notice of appeal was not timely and we are without jurisdiction to hear this appeal. We disagree. According to 

Rule 59(d), the April 21 motion is deemed denied if no 

hearing has been held within 10 days after the motion was 

served except that at any time after the notice of the 

hearing on the motion has been served, the court may issue 

an order continuing the hearing no longer than 30 days. If 

the hearing is continued, the court must rule upon the 

motion within 15 days of the hearing or it will be deemed 

denied. 

The record shows that Lilienthal's April 21 motion was 

set for hearing April 29, but according to an April 29 

minute entry, the parties stipulated to continue the hearing. 

The hearing was subsequently held on May 29, which was 

exactly 30 days later, and within the Rule 59 (d) time limit for 

continuing a hearing. The court's ruling was filed on June 

2, which was also within the Rule 59(d) time limit, and 

therefore Lilienthal had from June 2 until July 2, 1981 to 

file his notice of appeal. That notice was filed with the 

District Court on July 1 and with this Court on July 2, 

1981. Therefore, the appeal was timely and we have jurisdiction. 
First, Lilienthal contends that the District Court's 

judgment was improper because the court did not allow him 

sufficient time to seek the assistance of counsel to defend 

against the contempt charge. The Bank has not responded to 

this contention, other than to argue that this was a trespass 

proceeding and not a contempt proceeding. The District 

Court's final order before this appeal, stating that its 

April 10, 1981 order finding Lilienthal in contempt was 

". . . an unfortunate choice of words as this proceeding 

has never been a contempt proceeding," is belied by the 

fact that the Bank twice moved the court to find Lilienthal 

in contempt (February 23 and April 1, 1981), and the court 

twice signed orders which held the defendant in contempt 

(March 12 and April LO, 1981). It is indeed unfortunate 

that the District Court relied on the Bank's counsel to 

prepare these orders if it did not determine this was an 

action for contempt. But to later state that this action 

". . . originated, and always -- has been a proceeding in the 

nature of a trespass" (emphasis added) and that the court's 

March hearing and order ". . . did nothing but establish 

liquidated damages per day for defendants [sic] holding over 

. . ." does not comport with the Bank's motions unequivocally 

stating it wished the District Court to find Lilienthal in 

contempt. 

Because the Bank's m~tions and the District Court's 

orders were clearly in the nature of a contempt action, as 

well as an action in trespass, the court had the duty of 

affording Lilienthal a reasonable opportunity to secure 

counsel and defend himself. Although this action continued 

on-going for several months, Lilienthal did not receive a 

reasonable opportunity to secure counsel. Receiving notice 
on a Thursday to defend a contempt action the following 

Monday is not reasonable, even if the defendant retained 

counsel to represent him. 

Unless the act constituting contempt occurs in open 

court where immediate punishnent is necessary to prevent 

demoralization of the court's authority, due process requires: 

". . . that one charged with contempt of court 

be advised of the charges against him, 

have a reasonable opportunity to meet them 

by way of defense or explanation, have the right 

to be represented by counsel, and have a chance 

to testify and call other witnesses in his behalf, 

either by way of defense or explanation." In Re 

Green (1962), 359 U.S. 689, 691-92, 82 S.Ct. 

1114, 1116, 8 L.Ed.2d 198, 200; Re Oliver (1948), 

333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 

682, 695. 

We therefore hold that with respect to the contempt 

proceeding, Lilienthal was denied an opportunity to defend 

and any judgment of contempt must be set aside. 

Second, Lil.ientha1 contends that because this was a 

contempt proceeding, the District Court had no jurisdiction 

to award conpensatory damages because they aren't expressly 

authorized by law. We also agree with this contention. 

Section 3-1-519, MCA, provides the exclusive monetary 

punishnent a court may impose for contempt. Compensatory 

damages are not mentioned, and therefore are improper in a 

contempt action. 

This action is also one in the nature of trespass, in 

which case, compensatory damages are awardable. See section 

27-1-202, MCA. However, the court was never shown that $500 

per day was reasonably related to the actual danages sustained 

by the Bank, and for that reason, we must order a rehearing 

on the issue of damages. See section 27-1-302, MCA; Morgen 

& Oswood Construction Co. v. Big Sky of Nontana (1977), 171 
Mont. 268, 557 P.2d 1017 (liquidated damages must be 

reasonable in all cases). 

We reverse and remand for further proceedings consistent 

with this opinion. 

, -.-. 

We Concur: 

3-4 Chief Justice &-@& Lu-aQ