No. 86-475
IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

FRED G. CARL and JOANA. CARL, Plaintiffsand Appellants,-vsWILLIAM CHILCOTE; SECURITYABSTRACT COMPANY; RICHLANDNATIONAL BANK;AND CITY OF MISSOULA, MONTANA, Defendantsand Respondents. and
RICHLANDNATIONAL 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 JudicialDistrict, In and for the County ofMissoula, TheHonorableJames

### B. Wheelis,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
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

## 11987Mr. 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 DistrictCourt for the Fourth JudicialDistrict,Missoula County, granted the summary judgment motion of defendant Security Abstract Company. Plaintiffs appeal. We affirm. The issue is whether the DistrictCourt erred in granting summary judgment for SecurityAbstract 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 inMissoula District Court against one Paul Campeau. They recorded it in Richland County, where Mr. Campeau and William Chilcote were engaged in a joint venture constructingand sellinghomes. 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. Chilcotepersonally 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 fromChilcote, the Bank shall treat Chilcote as the sole owner and shall deal solelywith himwith regard to the funds." Meanwhile, the Carls had moved the Missoula County DistrictCourt to forceMr. Campeau tomake repairs to apartment buildings involved in the $120,000 judgment. In an order dated November 4, 1981,the court ordered the Carls torelease 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 forpayment ofmaterialmen 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 ofWilliam Baldassin,Mr. Campeau's attorney. Theportions 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 shallbe utilized to pay materialmen and any subcontractors performing anywork or supplyinganymaterials forwork 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 thenwrote to SecurityAbstract: 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,and35 

### of Sidney Circle Subdivision. Thesemay allbe filedwith 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 judgmentshave been released and that they can releaseallmonies held in the Chilcote account to me for deposit in my trust account.
Ibelieve that eitherMr. Chilcote orAttorney Hansen or Attorney Gary Chumrau on behalf ofMr. Chilcote have orwill notify the bank approving thisdisbursement. If you have any questions or comments or need anything further fromme please do not hesitate to contactme. Sincerely, BALDASSIN, CONNELL & 

### BEERS s/ William R. Baldassin William R. Baldassin

Enc

# .

Ron Bricks of SecurityAbstract spoke with one ormore 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 releaseof themoney: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 asdirected 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). SecurityAbstract Company of Sidney,Montana By: s/ JamesE. 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 thenpaid Mr. Campeau $60,000as his share of the profits from the joint venture. Instead of placing the $60,000 in the Baldassin trust account, Mr. Campeaupaid $2,650 to the Carls and $17,000 to the Baldassin trust account, and then disappeared. At time of trial, he
was apparently inAustralia. 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 sameagreement. SecurityAbstractmoved 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 isproper if thepleadings, depositions,and otherdiscovery, 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 judgmentas a matter of law. The Carls argue that there is a genuine issue as to SecurityAbstract'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 judgmenthas 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 thismatter in February 1982; that Security Abstract had no controlwhatever 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 Carlsdid not submit affidavits in opposition to the summary judgmentmotion. 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 tohim. 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 releaseswere 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 releaseshad been filed. This aspect is addressed in the next paragraph ofMr. Baldassin's letter where he states that he believes Mr.

### Chilcote or his attorney "have or will notify the bank approving this disbursement." At thispoint SecurityAbstract had done allwhich 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 ofMr. 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 failureofMr. Chilcote to transfer $60,000toMr. 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 issueofmaterial fact,summary judgment isproper in
anegligence action. Moralesv. 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 thepart of SecurityAbstract to see that the $60,000

### was delivered to Mr. Baldassin. In the absence of such a duty, Security Abstract could not be found tobe negligent. We conclude that the District Court was correct in determining that the plaintiffs failed to establisha genuine issueofmaterial factandwe affirm the summary judgment for Security Abstract.

We Concur:

Justices