### IN THE SUPREME COURT OF THE STATE OF MONTANA No. 92-011


### PATM. GOODOVER, Plaintiff and Respondent,
-vLINDEY'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 imprisonmentwas suspendedtogive Lindey's an opportunitytopurge itself of contempt. Goodoverhas filed a response to thepetition and Lindey's has filed a reply to the response. We issue thewrit and vacate the order of contempt. The issues are: 1. 

### Did the District Courthave 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, 

### (GoodoverI). 

### That case involved theplacement
or staking of 

### amonumentwhich is theNorthwest corner of Lot 1

### andthe Northeast corner of Lot 2 of Seeley Lake Shore Sites. The court found that the true and correctboundary 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: JUDGMENTAND DECREE IT IS THEREFORE ORDERED AND DECREED and this does order that Judgmentand Decree beherein 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 31 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 31 and 34.

ThePlaintiffwas 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 31 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. 

### - InGoodover I1we rejected Lindey's assertions as an attempted relitigationof theboundaries established inGoodover 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 surveyorproposed and filed certificate of survey No. 3861 containing these erroneous corners and lines. The certificateof surveyportrayed deviations fromtheretracement surveywhich this Court found to be true and correct inGoodover 

### 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 independentcontractor,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" constitutesthe onlypossible 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. I1Contemptproceedings 

# . . . 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 Lindeyrsfiling 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 relativewater rights of parties of which the defendant was one. The defendant violated the decreeby openingaheadgate and usingwater needed by prior appropriators, and did so indirect 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 185 P. at 1113. This case, however, does not support I 

### Goodover because the water commissioner is an agent of the court. The defendant violated a direct mandate of the water commissioner and thereforewasproperly found incontempt. See 5 

### 85-5-406,MCA. As stated above, the decree in the present case does not direct Lindeylsto do or refrain from doing anything that is required by the judgment; it determinesproperty 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. SeeMr. Steak,Inc.
v. Sanquist Steaks, Inc. Minnesota (Minn. l976), 245 N.W.2d 837,838;Sellmanv, Sellman (Md. 1965), 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 courtdid 

### not have the authoxity to find Lindeytsin 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

JusticesFebruary 18,1993 CERTIFICATEOFSERVICE Iherebycertify that the followingorderwassentby UnitedStatesmail, prepaid,tothefollowing named:
Paul NealCooley Skelton&Cooley 101E.Main Missoula.MT 59802 JohnW.Larson AttorneyatLaw 2806 Garfield, Ste.F Missoula,MT 59801 Hon.JackL.Green District Judge Missoula CountyCourthouse Missoula,MT 59802 EDSMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA