IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 92-011 

PAT M. 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 

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 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. 

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 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. 

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. 

I Zosel 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. 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 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 

Just ices 
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