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 

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### 3 Filed: ~ecided: December 29, 1982

### Mr. JusticeJohnC. Sheehydelivered 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 DistrictCourt of the Third Judicial District,DeerLodge County. The facts of this case were set forth 

### in the earlier case of Boyer oae,irr v. (1978),178Mont. 26, 582 P.2d 1173,andneednot 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 amotion toquash the temporary restraining order on September 16, 1974. After the judgewith original jurisdiction disqualified himself from hearing the case, and four other judges were disqualified, the motion to quash was finally heard onMay 3, 1976. The District Court thereafterdenied themotion to quash and extended the temporary restraining order "until further order of [the District] Court." Defendantappealed the DistrictCourt's order, and this Court upheld the continuance of the temporary restraining order and remanded the case to the District Court "withdirections to expedite the trial of the cause fordama.ges." 582 P.2d at 1178. Upon remand, plaintiffs and defendant each moved for swnmary judgment. Defendant's basis forhismotionwas thatplaintiffs failedto 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 noquestion 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 DistrictCourt 

### thenentered its findings of fact, conclusions of law,and ludgment. The court found that defendant committed a nuisance which interfered with plaintiffs' business, and awarded $2,00 0 in general damages, $4,155 in special damages for loss of business profit, and $6,000 inpunitive 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, "Itis 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)

## ,175Mont. 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 demonstratedby reviewing theprocedural history of the case: 

### the complaintwas filed;a temporary restraining order was extended until further order of the District Court. Defendant appealed the denial of themotion 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,plaintiffsmvedfor surrpnary judgment based on the Supreme Court opinion; the District Court granted themotion and ordered a hearing on damages. A review of theprocedural history shows thatthere has never been a hearing or trial on the merits on the issue of liability. Although a hearingwas held on the motion toquash, 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, atthe 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 ornot therewere any other damages." It is clear by this statmtthat 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)

## , 111Mont. 539, 545, 111P.2d 286. The issue of damages is one issue within the cause of action in this case. Therefore, this case was remanded tothe District Court for trialon the mrits of the cause of action for damages--both liability and, if liabilitywas proven, the extent of damages. By its order granting surcnnary judgment toplaintiffs, 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 smryjudgment toplaintiffs is reversed. This case is remanded tothe DistrictCourt fora trialonthemerits of the entire cause of action, and such further proceedings as may be necessary. Costs todefendant.

i / Justice

WeConcur:

ChiefJustice