No. 93-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

LINDEY'S, INC., a Minnesota 

Corporation, 

plaintiff and Appellant, 

PAT M. GOODOVER and GREG 

MARTINSEN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paul Neal Cooley, Missoula, Montana 

For Respondents: 

Zane K. Sullivan, Sullivan & Tabaracci, Missoula, 

Montana (Goodover) ; Sydney E. McKenna, Patterson, 

Marsillo, Tornabene, Schuyler & McKenna, Missoula, 

Montana (Martinsen) 

f 

Submitted on Briefs: January 13, 1994 

Fil 

! 8 1994 Decided: March 28, 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a grant of summary judgment by the 

Fourth Judicial District Court, Missoula County, to defendant Greg 

Martinsen. We affirm. 

We consider the following issue on appeal: 

Did the District Court err in granting summary judgment to 

Greg Martinsen? 

This cause of action revolves around a boundary dispute 

concerning various lots located in the Seeley Lake area. Pat 

Goodover (Goodover) owns Lot 2 of the Seeley Lake Shore Sites. In 

an attempt to quiet title to this lot, Goodover hired Greg 

Martinsen (Martinsen) to locate the boundary between Lots 1 and 2. 

Adjoining Lot 2 are Lots 1 and 3 owned by Lindey's, Inc. (Lindey's) 

Lindey's relied on the survey of R. David Schurian (Schurian) 

which resulted in different boundary lines for Lot 2. Goodover 

then filed a quiet title action in an attempt to settle the 

boundary dispute. The trial court accepted Martinsen's survey of 

Lot 2 over that of surveyor Schurian, both of whom testified at 

trial. 

The trial court's decision was affirmed by this Court in 

Goodover v. Lindey's (1988), 232 Mont. 302, 757 P.2d 1290 (Goodover 

I) and again in Goodover v. Lindey's (1990) , 246 Mont. 80, 802 P. 2d 

1258 (Goodover 11). In Goodover v. Lindey's (1992), 255 Mont. 430, 

843 P.2d 765 (Goodover 111) we affirmed in part and reversed in 

part. We vacated a contempt order and reversed an award of 
attorney's fees in Goodover v. Lindey's (1993), 257 Mont. 38, 847 

P.2d 699 (Goodover IV). 

Subsequent to the trial and appeals, Lindeyls attempted to 

have Greg Martinsen, who had previously been hired by Goodover, 

survey Lots 1 and 3. Martinsen refused and Lindey's hired Gary 

Johnson, P.L.S., to conduct another survey of the same area plus 

the south half of Lot 5. According to Lindey Is, Johnson discovered 

eight original monuments not found by Schurian or Martinsen. 

Lindey's then hired Terry Druyvestein to check the Johnson survey. 

Based upon its belief that Druyvestein confirmed the Johnson 

survey, Lindeyls filed suit to have the original decision regarding 

boundaries in this case set aside and for the court to recognize 

the eight newly discovered markers. Further, Lindey's sought to 

have Martinsen examine the new markers and to change the filing of 

his own survey concerning Lot 2. Martinsen refused to do either 

and in Count I1 of its latest petition Lindey's alleged that 

Martinsen was negligent--in not finding these original monuments 

when he previously surveyed Lot 2 for Goodover and for not revising 

the retracement survey of Lot 2 to include references to the newly 

discovered markers. 

Martinsen filed a motion for summary judgment as to Count I1 

of Lindeyls complaint and a motion to sever. The District Court 

granted the motion to sever as well as the summary judgment finding 

that the issue concerning Lot 2's boundary was res judicata and 

also that Martinsen owed no duty to Lindeyls to change his original 

survey. 
Did the District Court err in granting summary judgment to 

Greg Martinsen? 

Summary judgment is appropriate where no genuine issues of 

material facts exist and the moving party is entitled to judgment 

as a matter of law. Rule 56(c), M.R.Civ.P. It is the burden of 

the moving party to demonstrate that no genuine issues exist. 

Portal Pipe Line v. Stonewall (1993), 50 St.Rep. 30. Once this 

burden is met, the burden shifts to the non-moving party to show 

that issues of fact do exist. Richland National Bank & Trust v. 

Swenson (1991), 249 Mont. 410, 816 P.2d 1045. Mere denial and 

speculation are not enough; the non-moving party must show facts 

sufficient to raise a genuine issue. Frigon v. Morrison-Maierle, 

Inc. (1988), 233 Mont. 113, 760 P.2d 57. 

Here, Lindey's argues that Goodover's expert witness, surveyor 

Martinsen, was negligent in his initial survey of Lot 2 and again 

more recently in not reconsidering his original investigation as to 

the disputed boundary lines. Martinsen argues that the issue is 

res judicata and that he had no duty to Lindey's that would 

engender a claim of negligence. According to Martinsen, the trial 

court was correct in granting summary judgment. 

Once again this action is before the Court in a fourth attempt 

to relitigate issues in a long, arduous, and protracted boundary 

dispute. The boundary line in question has been determined. We 

affirmed the trial court's determination in prior appeals and no 

matter what name Lindey's chooses to give the present action, what 
it seeks with this fifth appeal is another chance to have the 

disputed boundary line reviewed. 

The District Court determined that the issue of the boundary 

lines of Lot 2 was res judicata. With that, the court 

mischaracterizes the issue. But where the result reached by the 

court is correct, we will uphold it on appeal regardless of the 

reason given for it. Kephart v. Portman (1993), 259 Mont. 232, 855 

P.2d 120. Here, the court was correct that the boundary line had 

been determined and any re-evaluation of that boundary line was 

prohibited. The facts of this case more nearly mirror estoppel by 

judgment . 

Estoppel by judgment does not require that the parties to the 

lawsuit be the same as do the theories of res judicata or 

collateral estoppel. Estoppel by judgment requires only that: (1) 

the party adversely affected by estoppel has had a full and fair 

opportunity to litigate the critical issues; (2) the assertion of 

estoppel by a stranger to the original judgment would create 

analogous results in the latter case; (3) the party affected by 

estoppel has sound reasons why he or she should not be bound by the 

previous judgment; (4) the previous judgment was the result of 

thorough litigation; and (5) there was an appeal from the original 

judgment. Beckman v. Chamberlain (Mont. 1983), 673 P.2d 480, 481. 

When we consider the first element within the context of this 

case, we are satisfied that Lindey's had a chance to fully and 

fairly litigate the issue of this boundary line. They provided 

their own expert at the trial who having surveyed the property 
testified to his conclusions. Further, element two is satisfied. 

Any other person not connected with that first trial would be 

forbidden by law to relitigate the boundary line. 

Also, element three's requirement that the party affected by 

estoppel have sound reasons why he or she should not be bound by 

the previous judgment is clearly satisfied here. Lindey's presents 

what superficially appears to be legitimate reasons for a change in 

the previous boundary. Lindey's argues that it is Martinsen's 

professional responsibility to change his initial report for the 

record. This is based on the assumption that Martinsen's initial 

report was in error. However, this has never been legally proven. 

Element four requires that the previous judgment came about 

after thorough litigation. We have considered closely, on several 

occasions, the record of the trial litigation in this case. There 

the District Court considered testimony by both Lindey's and 

Goodover's experts, both of whom had surveyed the area in 

contention. The court chose to give more weight to Martinsen's 

testimony. It was within the court's discretion to so weigh the 

various testimony at trial. 

Element five adds the prerequisite of an already settled 

appeal from the original decision. Here, Lindey's appealed the 

District Court's decision to this Court in Goodover I and attempted 

to do so again in Goodover 11. In Goodover I1 we found the issue 

of the boundary line to be res judicata and would not consider 

other cleverly disguised arguments concerning it. 
The difference between the theory of law in Goodover I1 and 

that in the present case is that the parties to the present action 

are different from those in the original litigation. Yet even 

though Lindey's characterizes the current action as one in 

negligence by a party not mentioned in Goodover I, the current 

action remains an attempt to relitigate this boundary. 

The District Court granted Martinsen's motion for summary 

judgment and determined that Martinsen had no legal duty to 

Lindey's. In order to present a cause of action for negligence, 

Lindey's has to show duty, breach of duty, causation, and injury. 

Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126. 

It was Lindey's burden to prove that as a professional, Martinsen 

owed him a duty and that as a professional, Martinsen failed to 

live up to that duty. Merzlak v. Purcell (1992), 252 Mont. 527, 

830 P.2d 1278. 

Lindey's asserts, without authority, that Martinsen has a duty 

to change his filed survey to include the eight relevant primary 

markers subsequently found by Johnson. The unsubstantiated 

argument here is that as a surveyor, Martinsen is negligent because 

he has an ongoing duty to change a survey if it is in error. First 

of all, the idea that Martinsen's first survey was error is not a 

legally determined fact. Further, Lindey's contends that Martinsen 

had a general duty to anyone affected by his survey. 

As a surveyor, Martinsen's legal duty was to complete the 

survey using the best evidence available to him according to 

accepted rules and regulations. Yellowstone Basin Properties, Inc. 
v. Ron Burgess (1992)~ 255 ,Mont. 341, 843 P.2d 341. The trial 

regulations and determined that his testimony concerningthe survey 

was more accurate than that of Lindey's expert. We affirmed this 

evaluation in Goodover I statingthat substantial credible evidence 

existed for the court's conclusion. Goodover I, 232 Mont. at 311, 

757 P.2d at 2296. The District Court in the present appeal also 

determined that Martinsen's evidence at trial was "the best 

reliable evidence. 

We conclude that Lindeyls has failed to sustain its burden to 

show that an issue of material facts exists or that Martinsen owed 

it a legal duty, If no duty exists, there can be no tort of 

negligence. Thornock v. State (19871, 229 Mont. 67, 745 p.2d 324. 

We further conclude, that the issue of the boundary line has 

already been litigated and estoppel by judgment will prevent its 

re-litigation. 

We hold that the District Court did not err in granting 

summary judgment to Greg Martinsen. 

Affirmed. 

We Concur: 
March 28, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Paul Neal Cooley, Esq. 

Skelton & Cooley 

101 E. Main 

Missoula, MT 59802 

Zane K. Sullivan, Esq. 

Sullivan & Tabaracci 

430 Ryman 

Missoula, MT 59802 

Sydney E. McKema, Esq. 

Patterson, Marsillo, Tornabene, Schuyler & McKema 

103 So. 5th E. 

Missoula, MT 59801 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAROF MONTANA 

Depu By*