No. 81-442 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

JOHN BOYER and LAURA LU BOYER, 

Plaintiffs and Respondents, 

VS . 

ANTHONY L. KARGACIN, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Deer Lodge 

Honorable Arnold Olsen, Judge presiding 

Counsel of Record: 

For Appellant: 

W. D. Murray, Jr., Butte, Montana 

Sharon Morrison, Helena, Montana 

For Respondents: 

Knight, Dahood, McLean & Everett, Anaconda, Montana 

Wade Dahood, Anaconda, Montana 

Submitted on briefs: November 12, 1982 

;]E i; C 3 

Filed: 

~ecided: December 29, 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Defendant appeals from an order granting plaintiffs' motion for 

s- judgment on the issue of liability and from the judgment 

assessing damages against the defendant, entered in the District Court of 

the Third Judicial District, Deer Lodge County. 

The facts of this case were set forth in the earlier case of Boyer 

oae,irr 

v. (1978), 178 Mont. 26, 582 P.2d 1173, and need not be restated 

here. Haever, the procedural history i.s important enough to the outcome 

of this appeal to be set out in this decision. On Septerdxr 11, 1.974, 

plaintiffs filed a complaint seeking a permanent injunction to prevent 

defendant from parking his car in such a manner as to block proper 

ingress to plaintiffs' business, damages for loss of business, and 

exemplary damages for the alleged mal-icious character of defendant's 

actions. Plaintiffs also asked for a temporary restraining order, which 

was issued on September 11, 1974. Defendant filed a motion to quash the 

temporary restraining order on September 16, 1974. After the judge with 

original jurisdiction disqualified himself from hearing the case, and 

four other judges were disqualified, the motion to quash was finally 

heard on May 3, 1976. The District Court thereafter denied the motion to 

quash and extended the temporary restraining order "until further order 

of [the District] Court." Defendant appealed the District Court's order, 

and this Court upheld the continuance of the temporary restraining order 

and remanded the case to the District Court "with directions to expedite 

the trial of the cause for dama.ges." 582 P.2d at 1178. 

Upon remand, plaintiffs and defendant each moved for swnmary 

judgment. Defendant's basis for his motion was that plaintiffs failed to 

shm any injury or damage arising from defendant's alleged behavior. 

Plaintiffs based their motion on this Court's opinion in the earlier 

Boyer case cited above, stating that this Court "found there was no 
question of material fact and ordered an expedited trial on the issue of 

damages . " 

The District Court granted ~laintiffs' motion for summan/ judgment 

on the issue of liability, and denied defendant's motion. Thereafter, 

several hearings were held to determine the issue of damages. The 

District Court then entered its findings of fact, conclusions of law, and 

ludgment. The court found that defendant committed a nuisance which 

interfered with plaintiffs ' business, and awarded $2,0 0 0 in general 

damages, $4,155 in special damages for loss of business profit, and 

$6,000 in punitive damages. 

On appeal, defendant presents seven issues. We find, however, that 

we need only decide the issue of whether the District Court denied 

defendant due process of law when it entered s- judgment against 

him. 

Defendant contends his constitutional right to due process was 

violated because he did not receive a trial or a hearing on the merits. 

We agree. As stated in Nygard v. Hillstead & Coyle (1979), 180 Mont. 

524, 591 P.2d 643, "It is fundamental that '[no] person shall be deprived 

of life, liberty, or property without due process of law!" 1972 Mont. 

Const. , Art. 11, $$ 17. " 'It is well settled that notice and opportunity 

to be heard are essential elements of due process."' Halldorson v. 

Halldorson (1977) , 175 Mont. 170, 573 P. 2d 169, 171. " 

It is clear in this case that on the issue of liability, defendant 

was denied his opportunity to be heard. This denial is demonstrated by 

reviewing the procedural history of the case: the complaint was filed; a 

temporary restraining order was extended until further order of the 

District Court. Defendant appealed the denial of the motion to quash to 

this Court, and we upheld the order continuing the temporary restraining 

order and remanded the case to the District Court. with directions to 

expedite the trial of the cause for damages. On remand, plaintiffs mved 
for surrpnary judgment based on the Supreme Court opinion; the District 

Court granted the motion and ordered a hearing on damages. 

A review of the procedural history shows that there has never been a 

hearing or trial on the merits on the issue of liability. Although a 

hearing was held on the motion to quash, this hearing "does not determine 

the merits of a case or decide controverted facts. It preserves the 

status quo pending an adjudication on the merits." Boyer, at 1178. 

After this Court remanded the case to the District Court, sumnary 

judgment was granted to plaintiffs. The District Court in its order 

granting s- judgment, did not give any reasons for granting 

plaintiffs' mtion. However, at the hearing to determine damages, the 

District Court stated, "In this matter there has been a judgment affirmed 

by the Supreme Court in which we were directed to have hearings or a 

hearing on the subject of whether or not there were general damages and, 

if there were, whether or not there were any other damages." 

It is clear by this statmt that the District Court misconstrued 

the language of the earlier opinion. This Court, in the first Boyer 

case, did not decide the issue of liability, but merely decided that the 

continuance of the temporary restraining order was proper, and directed 

the District Court to expedite the trial of the cause for damages. In 

this instance, the term "cause" is synonmus with "cause of action." 

See Bergin v. Temple (1941) , 111 Mont. 539, 545, 111 P. 2d 286. The issue 

of damages is one issue within the cause of action in this case. 

Therefore, this case was remanded to the District Court for trial on the 

mrits of the cause of action for damages--both liability and, if 

liability was proven, the extent of damages. 

By its order granting surcnnary judgment to plaintiffs, the District 

Court foreclosed the opprtunity for a hearing on the merits. This act 

deprived defendant of due process of law. 

The District Court ' s order granting smry judgment to plaintiffs 

is reversed. This case is remanded to the District Court for a trial on 
the merits of the entire cause of action, and such further proceedings as 

may be necessary. Costs to defendant. 

i 

/ Justice 

We Concur: 

Chief Justice