No. 86-475 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

FRED G. CARL and JOAN A. CARL, 

Plaintiffs and Appellants, 

-vsWILLIAM CHILCOTE; SECURITY ABSTRACT COMPANY; 

RICHLAND NATIONAL BANK; AND CITY OF MISSOULA, 

MONTANA, 

Defendants and Respondents. 

and 

RICHLAND NATIONAL BANK, 

Third-Party Plaintiff, 

-vsPIONEER NATIONAL TITLE INSURANCE COMPANY; 

MILODRAGOVICH, DALE & DYE, P.C., MICHAEL J. 

MILODRAGOVICH; BALDASSIN, CONNELL & BEERS: and 

WILLIAM R. BALDASSIN, 

Third-Party Defendants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Charles F. Moses, Billings, Montana 

For Respondent : 

William P. Driscoll, Helena, Montana 

Wayne Cumming, Sidney, Montana 

James J. Benn, Missoula, Montana 

Submitted on Briefs: Jan. 8, 1987 

Decided: March 31, 1987 

Filed: MAR 3 1 1987 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The plaintiffs filed this action for losses suffered as 

the result of breach of a real estate construction contract. 

The District Court for the Fourth Judicial District, Missoula 

County, granted the summary judgment motion of defendant 

Security Abstract Company. Plaintiffs appeal. We affirm. 

The issue is whether the District Court erred in granting summary judgment for Security Abstract Company. 

This case arises out of the same facts and disputes 

involved in a case previously before this Court, Walters v. 

Campeau (Mont. 1983), 668 P.2d 1054, 40 St.Rep. 1419. PI-aintiffs Carl obtained a $120,000 judgment in Missoula District 

Court against one Paul Campeau. They recorded it in Richland 

County, where Mr. Campeau and William Chilcote were engaged 

in a joint venture constructing and selling homes. Filing of 

the judgment effectively prevented any sales of the homes 

because it made title insurance unavailable. To enable the 

homes to be sold, Mr. Chilcote personally placed $120,000 in 

trust at Richland National Bank under a written agreement 

with the Bank and Security Abstract Company (Security Abstract). The $120,000 was intended to protect Security 

Abstract against title suits on the properties based on the 

Carls' judgment. Security Abstract then agreed to provide 

title insurance on the homes without an exception for the 

Carls' judgment. The agreement provided that "until such 

time as the Bank receives written instructions from Chilcote, 

the Bank shall treat Chilcote as the sole owner and shall 

deal solely with him with regard to the funds." 

Meanwhile, the Carls had moved the Missoula County 

District Court to force Mr. Campeau to make repairs to apartment buildings involved in the $120,000 judgment. In an 

order dated November 4, 1981, the court ordered the Carls to 
release their lien on the proceeds of the Richland County 

home sales to the extent necessary to allow Mr. Campeau to 

place $60,000 in trust for payment of materialmen and laborers who would complete work which had been ordered done on 

the Missoula apartments. That account was to be held in 

trust in the name of William Baldassin, Mr. Campeau's attorney. The portions of the order addressed to this transaction 

were : 

5. As security for payment of materialmen and 

any subcontractors, the counsel for Defendant 

Campeau, William Baldassin, shall as an officer of 

this Court, receive and hold in an interest-bearing 

account established under the name "William 

Baldassin, Trustee" the amount of SIXTY THOUSAND 

DOLLARS ($60,000.00) . Such funds shall be utilized 

to pay materialmen and any subcontractors performing any work or supplying any materials for work on 

the rental units subject to this litigation and to 

pay rents allowed per paragraph 3 above. 

7. Defendant Carl shall release residential 

property in Sidney, Montana, from the lien of the 

judgment of April 27, 1981, so that the Defendant 

Campeau's funds can be released from the sale of 

the residences and be transmitted to Mr. Baldassin 

as Trustee. 

Mr. Baldassin then wrote to Security Abstract: 

November 10, 1981 

Ron Bricks 

Security Abstract 

105 E. Main Street 

Sidney, MT 59270 

RE: Campeau-Chilcote Judgment 

Dear Ron: 

Enclosed please find Partial Release of Judgment forms 

relating to Lots 17, 19, 21, 23, 24, 27, 30, 32, 33, 34, and 
35 of Sidney Circle Subdivision. These may all be filed with 

the Richland County Clerk and Recorder thereby satisfying the 

judgment against Paul Campeau as it relates to these 

properties. 

If you would then please notify the bank that the judgments have been released and that they can release all monies 

held in the Chilcote account to me for deposit in my trust 

account. 

I believe that either Mr. Chilcote or Attorney Hansen or 

Attorney Gary Chumrau on behalf of Mr. Chilcote have or will 

notify the bank approving this disbursement. 

If you have any questions or comments or need anything 

further from me please do not hesitate to contact me. 

Sincerely, 

BALDASSIN, CONNELL & BEERS 

s/ William R. Baldassin 

William R. Baldassin 

Enc . 

Ron Bricks of Security Abstract spoke with one or more of the 

Missoula attorneys about this matter. He was told that 

certain monies would be transferred to Missoula when the 

releases were filed. Security Abstract was not a party to 

the November 4, 1981, order. Nor is there anything in the 

record to indicate that Security Abstract had any knowledge 

of the order. 

Security Abstract filed the release of judgment forms, 

and then, attaching a copy of the Baldassin-Security Abstract 

letter, wrote to the Bank which held the $120,000, authorizing the release of the money: 
November 18, 1981 

The Richland National Bank 

of Sidney, Montana. 

Re: Agreement dated September 22, 1981 

Chilcote - Title Company 

Gentlemen: 

You are hereby authorized to terminate the above account and 

return the funds as directed in said agreement. 

We have been requested in writting [sic] by William R. 

Baldassin, attorney for R. Paul Campeau, to notify you to 

release all monies held in said account to: "Baldassin, 

Connell & Beers, Trust Account". (see copy of letter 

attached). 

Security Abstract Company 

of Sidney, Montana 

By: s/ James E. Williams 

Its President. 

The vice-president of Richland County Bank telephoned Mr. 

Chilcote and Mr. Chilcote's attorney, both of whom advised 

that the money should not be forwarded to Mr. Baldassin, 

because other arrangements had been made. The Bank's own 

attorney advised that the money should go to no one but Mr. 

Chilcote without Chilcote's written authorization. The Bank 

transferred the $120,000 to Mr. Chilcote's account, as he 

requested. Mr. Chilcote then paid Mr. Campeau $60,000 as his 

share of the profits from the joint venture. Instead of 

placing the $60,000 in the Baldassin trust account, Mr. 

Campeau paid $2,650 to the Carls and $17,000 to the Baldassin 

trust account, and then disappeared. At time of trial, he 

was apparently in Australia. 

The Carls then brought this action. Their complaint 

alleges that Security Abstract negligently caused the breach 

of the court-ordered agreement as to the Carls' liens. It 
also alleges that Security Abstract negligently interfered 

with the same agreement. Security Abstract moved for summary 

judgment. The District Court ruled that Security Abstract 

had established that there was no genuine issue of material 

fact, and granted summary judgment. 

Did the District Court err in granting summary judgment 

for Security Abstract Company? 

Rule 56 (c) , M.R.Civ.P., provides that summary judgment 

is proper if the pleadings, depositions, and other discovery, 

together with any affidavits filed, show that there is no 

genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law. The Carls 

argue that there is a genuine issue as to Security Abstract's 

understanding of its duties under its agreement with Mr. 

Baldassin and whether it exercised reasonable care in fulfilling those duties. The Carls say there is a similar 

question of fact on whether Security Abstract exercised 

reasonable care in its undertaking and filing of the lien 

releases. 

The party moving for summary judgment has the burden of 

establishing the absence of any genuine issue of fact, and 

the party opposing the motion must provide evidence supporting the existence of a genuine fact issue. Pretty on Top v. 

City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. 

In support of its motion for summary judgment, Security 

Abstract filed the affidavit of its employee Ron Bricks. He 

attested that he received the releases from Mr. Baldassin, 

and filed them as instructed in the letter. He stated that 

he then sent a copy of the Baldassin-Security Abstract letter 

to the Bank. He also attested that he was not aware of the 

November 4, 1981, order until he was deposed in this matter 

in February 1982; that Security Abstract had no control 
whatever over the funds received from purchasers of the 

Richland County homes; and that nothing was said to him to 

indicate that Security Abstract would be at all responsible 

for seeing that any monies were returned to Missoula. The 

Chilcotte-Security Abstract agreement, the Baldassin-Security 

Abstract letter, and the letter from Mr. Bricks to the Bank 

are a part of the record as attachments to depositions. 

The Carls did not submit affidavits in opposition to the 

summary judgment motion. Instead, they attached a transcript 

of testimony given by Mr. Baldassin at a hearing in which he 

was answering charges of contempt of court. At that hearing, 

Mr. Baldassin testified he was certain that it was clear to 

Mr. Bricks from their phone conversations that the lien 

releases were not to be used unless Mr. Baldassin got the 

$60,000. He testified that Mr. Bricks "exhibited no confusion . . . no disagreement" as to this understanding. Mr. 

Baldassin did not testify that Security Abstract was in any 

way responsible to see that the money was transferred to him. 

These telephone conversations took place prior to the November 10, 1981, Baldassin-Security Abstract letter. 

Considered in a manner most favorable to the Carls, Mr. 

Baldassin's testimony established that the lien releases were 

not to be used unless Mr. Baldassin received the $60,000. 

The Baldassin-Security Abstract letter advises Security 

Abstract that the release forms may be filed with the clerk 

and recorder, thereby satisfying the judgment, and that 

Security Abstract then is to notify the Bank that the judgments have been released and that the Bank can release the 

monies to Mr. Baldassin. The Carls argue that Security 

Abstract was required in some manner to see that Mr. 

Baldassin got the $60,000 because the lien releases had been 

filed. This aspect is addressed in the next paragraph of Mr. 

Baldassin's letter where he states that he believes Mr. 
Chilcote or his attorney "have or will notify the bank approving this disbursement." At this point Security Abstract 

had done all which it could do in order to allow the $120,000 

to be disbursed to Mr. Baldassin by the Bank. Even if we 

accept Mr. Baldassin's testimony without question, there is 

no indication in that testimony or in the Baldassin-Security 

Abstract letter to indicate that Security Abstract was in any 

way responsible for the transfer of the money itself. Under 

the Chilcote-Security Abstract agreement, Security Abstract 

was entitled to access to the funds only in the event of 

problems arising from the judgment in question. 

The release of the judgment lien terminated any possibility of claim on the part of Security Abstract because of 

the judgment. Security Abstract specifically advised the 

Bank in its letter that the Bank was authorized to terminate 

the account and return the funds as directed in the agreement. At that point Security Abstract had discharged any 

responsibility or duty which it had with regard to the funds 

in the Bank. It then became an obligation on the part of Mr. 

Baldassin to arrange with Mr. Chilcote, his attorneys, and 

the Bank for the disbursement to him. Security Abstract is 

not shown to have any obligation in connection with that 

disbursement. We conclude that there is nothing to suggest 

that Security Abstract could be held responsible for the 

failure of Mr. Chilcote to transfer $60,000 to Mr. Baldassin. 

The Carls argue that summary judgment is inappropriate 

because an issue of negligence is involved. The record does 

not support that contention. Where the non-moving party 

fails to come forward with substantial evidence raising a 

genuine issue of material fact, summary judgment is proper in 

a negligence action. Morales v. Tuomi (Mont. 1985), 693 P.2d 

532, 535, 42 St.Rep. 60, 63-64. Security Abstract followed 

all of the instructions which it received orally as described 
in the Baldassin testimony and as contained in the 

Baldassin-Security Abstract letter. The Carls failed to 

provide evidence of any duty on the part of Security Abstract 

to see that the $60,000 was delivered to Mr. Baldassin. In 

the absence of such a duty, Security Abstract could not be 

found to be negligent. 

We conclude that the District Court was correct in 

determining that the plaintiffs failed to establish a genuine 

issue of material fact and we affirm the summary judgment for 

Security Abstract. 

We Concur: 

Justices