                                      No.   81-442

                I N THE SUPREME COURT O THE STATE O F MONTANA
                                       F

                                         1982



J O H N BOYER and LAURA LU BOYER,

                                            P l a i n t i f f s and R e s p o n d e n t s ,

                      VS   .
ANTHONY L.      KARGACIN,

                                            Defendant and A p p e l l a n t .



Appeal from:           D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
                       I n and f o r t h e County o f Deer Lodge
                       Honorable Arnold O l s e n , Judge p r e s i d i n g

Counsel o f Record:

         For Appellant:

              W. D. Murray, J r . , B u t t e , Montana
              Sharon M o r r i s o n , Helena, Montana

         For Respondents:

              K n i g h t , Dahood, McLean & E v e r e t t , Anaconda, Montana
              Wade Dahood, Anaconda, Montana



                                            S u b m i t t e d on b r i e f s : November 1 2 , 1982

                                                                 ~ e c i d e d :December 2 9 ,   1982
         ;]E i; C 3
Filed:
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 i the earlier case of Boyer
                                              n
           oae,irr
v.           (1978), 178 Mont. 26, 582 P.2d 1173, and need not be restated
here. Haever, the procedural history is 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 $2,000 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 lw"
                                                      a!                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.2 169, 171."
                                         d
       It is clear i this case that on the issue of liability, defendant
                   n
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 D i s t r i c t

Court granted the motion and ordered a hearing on damages.

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

hearing o r t r i a l on the merits on the issue of l i a b i l i t y .          Although a

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

the merits of a case o r decide controverted facts.                     I t preserves the

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

       After this Court remanded the case t o the District Court, sumnary
judgment was granted t o p l a i n t i f f s .       The D i s t r i c t Court i n its order

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

p l a i n t i f f s ' mtion.     However, a t the hearing t o determine damages, the

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

by the Supreme Court in which we were directed t o have hearings o r a

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

i f there were, whether o r not there were any other damages."

       I t is clear by this s t a t m t t h a t the D i s t r i c t Court misconstrued

the language of the e a r l i e r opinion.            This Court, i n the f i r s t Boyer

case, did not decide the issue of l i a b i l i t y , but merely decided that the

continuance of the temporary restraining order w s proper, and directed
                                                a

the D i s t r i c t Court t o expedite the t r i a l of the cause for damages.                In

t h i s instance, the term "cause" is synonmus w i t h "cause of action."

See Bergin v. Temple (1941), 1 1 Mont. 539, 545, 1 1 P. 2d 286.
                              1                   1                                The issue

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

Therefore, t h i s case was remanded t o the D i s t r i c t Court for t r i a l on the

mrits of         the cause of          action f o r damages--both    l i a b i l i t y and,   if

l i a b i l i t y was proven, the extent of damages.

       B its order granting surcnnary judgment t o p l a i n t i f f s , the D i s t r i c t
        y

Court foreclosed the o p p r t u n i t y for a hearing on the merits.               This a c t

deprived defendant of due process of law.

       The District Court ' s order granting s m r y judgment t o p l a i n t i f f s

is reversed.        This case is remanded t o the D i s t r i c t Court f o r a t r i a l on
the merits of the entire cause of action, and such further proceedings as

may be necessary.          Costs t o defendant.




                                                  i   Justice
                                                  /



W e Concur:




     Chief J u s t i c e
