97-327

 No. 97-327

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

WILBUR A. FADNESS, individually and as 

successor in interest to MILDRED H. FADNESS,

 Plaintiff and Appellant,

 v.

DOROTHY CODY, ROGER J. WIMMER,

d/b/a ROOSEVELT COUNTY ABSTRACT,

 Defendants and Respondents.

APPEAL FROM: District Court of the Fifteenth Judicial District,

 In and for the County of Roosevelt,

 The Honorable David J. Cybulski, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Z. Kent Sullivan, Sullivan & Tabaracci, Missoula, Montana

 For Respondents:

 Ralph J. Patch, Attorney at Law, Wolf Point, Montana

 (for Dorothy Cody)

 Robert M. Knight; Knight, Masar & Poore; Missoula, Montana

 (for Roger J. Wimmer, d/b/a Roosevelt County Abstract)

 Submitted on Briefs: December 4, 1997

 Decided: December 30, 1997

Filed:

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 __________________________________________

 Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

 Wilbur A. Fadness and Mildred H. Fadness appeal from the judgment of the

Fifteenth Judicial District Court, Roosevelt County, granting summary judgment to

Dorothy Cody and Roger Wimmer based on collateral estoppel and the Fadnesses' failure

to set forth sufficient facts to establish liability. We reverse.

 The issue raised on appeal is whether the District Court erred when it granted

summary judgment to Cody and Wimmer based on collateral estoppel and lack of

sufficient facts to establish liability.

 FACTUAL BACKGROUND

 On January 30, 1989, the Fadnesses listed for sale 160 acres of land, located near

Wolf Point, Roosevelt County, Montana, with Dorothy Cody of Cody Real Estate in

Wolf Point. The terms of the property listing called for "$25,000. Negotiable. 30%

down--9% interest on Contract for Deed or Cash."

 In June 1989, William Kuntz III contacted Cody Real Estate by mail and requested

information on the property. Cody provided the information requested. In August 

1989,

Kuntz made an offer to buy the property which Cody communicated to Mrs. Fadness. 

Cody prepared a buy-sell agreement which she forwarded to Kuntz in New York state. 

Kuntz made substantial alterations to the agreement and returned it to Cody. Cody

drafted a second buy-sell agreement and once again sent it to Kuntz. Kuntz altered 

this

second agreement and forwarded it directly to the Fadnesses. The Fadnesses accepted

this offer on September 26, 1989, and returned the buy-sell agreement to Cody.

 Kuntz mailed Cody the earnest money and Cody ordered title insurance from

Roger Wimmer at the Roosevelt County Abstract Office. Cody then delivered the

contract to Gerard Schuster, a Wolf Point attorney, and requested that he draft 

whatever

legal documents would be needed. Schuster provided Cody with a promissory note, a

mortgage agreement, a deed, and a realty transfer certificate. Thereafter, Cody 

mailed

the original mortgage agreement and a photocopy of the promissory note to Kuntz, and

the original deed to the Fadnesses. 

 Once the parties received the documents, Kuntz insisted that the Fadnesses agree

to include Mrs. Kuntz as a grantee on the deed, but not as an obligor on the mortgage

agreement. Cody discussed Kuntz's demand with Mrs. Fadness and testified that she

advised Mrs. Fadness against adding Mrs. Kuntz's name to the deed but not to the

mortgage agreement. Mrs. Fadness later contacted Cody and explained that she had

spoken to Kuntz and that she and Mr. Fadness had decided that it would be fine to add

Mrs. Kuntz to the deed. Cody testified that she has no knowledge of whether the

Fadnesses ever consulted an attorney regarding her advice not to allow Mrs. Kuntz to 

be

a grantee on the deed.

 Thereafter, Kuntz returned the signed mortgage and promissory note to Wimmer,

the closing agent. Although Cody did not see these documents again, Wimmer contacted

Cody when they arrived at his office. On November 6, 1989, the Fadnesses signed the

warranty deed and returned it to Cody. Cody delivered the deed and the earnest money

deposit from her trust account to Wimmer, at Roosevelt County Abstract, for closing.

 The transaction closed on October 3, 1990, over nine months after Kuntz first

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demanded that his wife's name be added to the deed. The deed, recorded on November

4, 1990, contains the added name of Mrs. Kuntz. According to Mr. Kuntz, his wife's

name was added sometime while the deed was in escrow. The mortgage agreement,

signed on September 28, 1990, by Mr. Kuntz, references a note in the amount of 

$19,500

with the rate of interest on the outstanding balance lined through. Mr. Kuntz 

admitted

lining though that provision. The promissory note, referenced in the mortgage and 

sent

to Mr. Kuntz, has never been located and its whereabouts remain unknown.

 Cody testified that she was aware that Kuntz made several changes to both buy-sell

agreements. She explained that, although she did not do so in this case, it is 

normally

her custom to have all changes on buy-sell agreements initialed. Cody explained 

that she

did not understand the effect of having Mrs. Kuntz's name on the deed but not on the

mortgage. She also testified that she did not suggest to the Fadnesses that they 

discuss,

with an attorney, the impact of structuring the transaction in this manner. Cody 

received

a fee for acting as the listing agent for the transaction.

 Wimmer was the closing agent in this transaction and has been in the title

insurance business for nearly twenty years. In a deposition, Wimmer explained that a

closing agent owes a fiduciary duty to the parties involved in a real property 

transaction. 

He stated that he saw that the interest section of the mortgage had been lined out 

and that

it and all other modifications had not been initialed. Like Cody, Wimmer explained 

that

it is his custom and practice at closing to have all modifications initialed. 

According to

Wimmer, the lined out interest rate, without being initialed, renders the mortgage

questionable for title examination purposes.

 Wimmer further testified that he was aware of the significance of adding Mrs.

Kuntz's name to the deed but not the mortgage agreement, and that any difference

between the names on these documents was very important to the Fadnesses' position in

this real property transaction. Finally, Wimmer stated that he did not know whether 

the

Fadnesses were aware of the addition of Mrs. Kuntz's name to the deed, and that he 

did

not warn them of the consequences of having the transaction structured in this 

manner.

 On April 13, 1992, Kuntz defaulted on his payments and the Fadnesses sued to

foreclose the purchase money mortgage and quiet title to the real property. 

Pursuant to

õ 71-1-232, MCA, the Fadnesses were precluded from recovering a deficiency judgment

related to the debt secured by the mortgage. The jury returned a verdict for the

Fadnesses with regard to the foreclosure. 

 Count II of the Fadnesses' complaint against Kuntz, was an action to quiet title

to the real property. The Fadnesses alleged that Kuntz's wife's name was added to the

warranty deed without their approval. Kuntz admitted that he added his wife's name 

to

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the deed while it was in escrow. Despite these allegations, the jury found that 

"Fadness

gave real and free consent to Kuntz's alteration of the deed." The Fadnesses further

alleged that a promissory note was missing and that the mortgage was altered, before 

it

was returned for recording, by crossing through the amount of the interest rate. The

Kuntzes denied ever receiving the promissory note. The jury awarded to the Fadnesses

title to the property, punitive damages in light of Kuntz's actual fraud, and 

attorney fees

and costs.

 The Kuntzes appealed to this Court. We affirmed the jury's verdict and denied

rehearing. See Fadness v. Kuntz (Mont. March 28, 1996), No. 95-133, slip op. at 13. 

The Kuntzes then filed a petition for writ of certiorari with the United States 

Supreme

Court, which was denied. See Fadness v. Kuntz (Mont. March 28, 1996), No. 95-133,

cert. denied (1996), 65 U.S.L.W. 3340, 117 S. Ct. 390, 136 L. Ed. 2d 306.

 The Fadnesses are now suing Wimmer, the closing agent, and Cody, the real estate

agent, for breach of their fiduciary duties, their duties of care, and for 

negligence. 

Specifically, the Fadnesses allege that Wimmer was negligent and breached his 

fiduciary

duty to the extent that the real estate transaction documents were "lost, altered, 

or forged"

to the Fadnesses' detriment. The Fadnesses further allege that Wimmer breached his

fiduciary duty by failing to protect their interests by insuring the proper handling 

of the

closing and the documents involved. The Fadnesses allege that Wimmer violated the

regulations of the insurance commissioner of the State of Montana by failing to have

written escrow instructions for the closing of the transaction.

 The Fadnesses allege that Cody breached her fiduciary duty to assist the Fadnesses

throughout the course of the transaction. They claim that Cody breached her duty of 

care

and conduct by not safeguarding and protecting the Fadnesses' interests. They 

further

allege that Cody handled the transaction and closing negligently and that she 

violated the

regulations of the Board of Realty Regulation by failing to advise the Fadnesses 

that they

should consult legal counsel to determine the effect of the documents involved in the

transaction. Finally, The Fadnesses allege that Cody was negligent in supervising 

the

closing to the extent that the documents had been lost, misplaced, stolen, forged, or

otherwise altered.

 On March 24, 1997, Wimmer and Cody moved for summary judgment based upon

collateral estoppel and res judicata. The District Court found that no genuine 

issue of

material fact exists and that Wimmer and Cody are entitled to judgment as a matter of

law. 

 The District Court framed the basic issue as whether or not Wimmer and Cody are

liable for the structuring and handling of the real estate sale, and for the 

subsequent

changes made to the documents related to the sale. Because the jury in the previous

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action against Kuntz found that Fadness and Kuntz gave "real and free consent" to the

terms of the mortgage and the alteration of the deed, the District Court held that 

collateral

estoppel keeps the Fadnesses from now attempting to prove the facts to be otherwise. 

The District Court granted Wimmer and Cody's motion and stated that the issue in this

case is identical to the issues in the Fadnesses' previous case against Kuntz in 

which final

judgment was rendered and affirmed by this Court. The District Court held that there

are no facts to support the allegations made by the Fadnesses with regard to the 

liability

of Cody and Wimmer.

 DISCUSSION

 Did the District Court err by granting Cody and Wimmer's motion for summary

judgment based on collateral estoppel and lack of sufficient facts to establish 

liability?

 Our standard of review in appeals from summary judgment rulings is de novo. See

Motaire v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242,

907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782,

785. When we review a district courtþs grant of summary judgment, we apply the same

evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. 

Yellowstone

County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our

inquiry:

The movant must demonstrate that no genuine issues of material fact exist. 

Once this has been accomplished, the burden then shifts to the non-moving

party to prove, by more than mere denial and speculation, that a genuine

issue does exist. Having determined that genuine issues of material fact do

not exist, the court must then determine whether the moving party is

entitled to judgment as a matter of law. We review the legal determinations

made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted). 

 It is the Fadnesses' contention on appeal that the present action and the action

against the Kuntzes are two separate and distinct causes of action. The Fadnesses 

argue

that in Fadness v. Kuntz, they sought to recover the property from the Kuntzes by

foreclosing on the mortgage and quieting title to the property, as well as damages

suffered as a natural and probable consequence of the Kuntzes' actions. The 

Fadnesses

note that at no point were Cody and Wimmer a part of the first action and that no

damages were sought from the Kuntzes for the wrongs of Cody and Wimmer. According

to the Fadnesses, the present action was filed specifically to seek damages from 

Cody and

Wimmer for the harm suffered as a natural and probable consequence of their actions. 

For these reasons, the Fadnesses contend that the doctrine of collateral estoppel 

does not

apply.

 Collateral estoppel, or issue preclusion, bars a party to a prior lawsuit from

reopening an issue he or she has already had the opportunity to litigate. See 

Holtman v.

4-G's Plumbing and Heating (1994), 264 Mont. 432, 439, 872 P.2d 318, 322. The

doctrine has three elements: 

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 1) the identical issue raised has been previously decided in a

prior adjudication; 

 2) a final judgment on the merits was issued in the prior

adjudication; and 

 3) the party against whom the plea is now asserted was a party

or in privity with a party to the prior adjudication.

Holtman, 264 Mont. at 439, 872 P.2d at 322 (citing State v. Young (1993), 259 Mont.

371, 377, 856 P.2d 961, 965). Our analysis need not proceed beyond the first 

element. 

 Identity of issues is the most crucial element of collateral estoppel. See 

Holtman,

264 Mont. at 439, 872 P.2d at 322; Anderson v. State (1991), 250 Mont. 18, 21, 817

P.2d 699, 702. In order to satisfy this element, the identical issue or "precise 

question"

must have been litigated in the prior action. See Holtman 264 Mont. at 438, 872 P.2d 

at

322; Anderson, 250 Mont. at 21, 817 P.2d at 702. To determine whether the issue 

raised

is identical, we compare the pleadings, evidence, and circumstances surrounding the 

two

actions. See Aetna Life Ins. Co. v. McElvain (1986), 221 Mont. 138, 146, 717 P.2d

1081, 1086.

 It is true that the Fadnesses' prior suit against Kuntz arose from the same events

as their claim against Cody and Wimmer and, like their present claim, sought damages

related to the sale of the Fadnesses' real property. However, when this claim is

compared to the Fadnesses' mortgage foreclosure, quiet title action, and claim of 

fraud

against Kuntz as described above, it is clear that the identical issue, or precise 

question,

raised in the present case was not raised and decided in the earlier litigation 

involving the

Fadnesses. 

 The Fadnesses' prior foreclosure and quiet title action can be read as alleging 

an

intentional wrongful act by Kuntz, the breach of the mortgage agreement and Kuntz's

fraudulent conduct, followed by all the damage that flowed therefrom. To the extent 

the

prior claim is read in this fashion, it is clear that the issues of the alleged 

negligence and

breach of fiduciary duties owed by Cody and Wimmer in the present case, are not

identical. 

 Furthermore, the Fadnesses' claim against Kuntz did not raise the issue of Cody

and Wimmer's negligence in their handling of the real property transaction and 

closing.

As we stated in Nautilus Ins. v. First Nat'l Ins. (1992), 254 Mont. 296, 299, 837 

P.2d

409, 411, a negligence action is premised, first, on the existence of a duty. Cody 

and

Wimmer have not established that their legal duties to the Fadnesses in handling and

closing the real property transaction were co-extensive with the duties owed them by 

the

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Kuntzes. The fact that each action arises from the same transaction does not mean 

that

each involve the same issues.

 We conclude that the "identical issue" element of collateral estoppel is not met

under the circumstances in this case. The duties owed by Cody and Wimmer to the

Fadnesses were not decided, nor even considered by the jury in the first case. 

Moreover, the District Court's other reason for granting Cody and Wimmer's motion for

summary judgment, that the Fadnesses presented insufficient facts to support an 

allegation

that Cody and Wimmer are liable, was not an issue before the District Court and was 

not

a basis upon which Cody and Wimmer relied in their motion for summary judgment. 

Therefore, we hold that the District Court erred when it based summary judgment, in

part, on its conclusion that the Fadnesses presented insufficient evidence to 

demonstrate

liability, that they are collaterally estopped from asserting claims for negligence 

and

breach of fiduciary duties, and when it granted summary judgment in favor of Cody and

Wimmer.

 We therefore reverse and remand this case for further proceedings consistent with

this opinion. 

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

Justice W. William Leaphart, specially concurring.

 Due to the incomplete state of the record in this appeal, I have no choice but to

concur in the result reached by the court. 

 Even assuming that the real estate agent and the closing agent owed duties of care

to the sellers and that they breached those duties and thereby rendered the mortgage

potentially invalid, it is not clear to me that the Fadnesses, in fact, suffered 

damages

which were not fully recompensed when they successfully litigated a mortgage 

foreclosure

action against Kuntz. Fadness v. Kuntz (1996), No. 95-133 (Fadness I). 

 Although, in the present matter, Cody and Wimmer requested that Fadnesses file

a statement of damages, Fadnesses did not respond to that request. Thus, in terms of

trying to understand Fadnesses' theory of damages, we are left with nothing other 

than

Fadnesses' somewhat less than specific prayer for "such damages as they may prove at

trial." 

 In Fadness I, Fadnesses sued Kuntz to foreclose the purchase money mortgage and

to quiet title in their name. As the court states, Fadnesses were successful in 

their

foreclosure action, they quieted title to the property and obtained an award of 

punitive

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damages plus their fees and costs. They cannot obtain a deficiency judgment for any

outstanding balance on the debt. Section 71-1-232, MCA. I am at a loss as to what

further damages, if any, Fadnesses may have incurred as a result of Wimmer's and

Cody's alleged negligence in allowing Mrs. Kuntz's name to appear on the deed but not

on the mortgage. However, since the summary judgment was based upon collateral

estoppel rather than failure to state a claim for damages, and since Fadnesses have 

not

yet responded to the request to state their damages, I must give them the benefit of 

the

doubt and let the matter proceed. 

 /S/ W. WILLIAM LEAPHART

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