                             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
           ! 8 1994                       Decided:   March 28,
Fil
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, Lindeylsfiled 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 Lindeylsto 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   ( 1 9 9 2 ) ~2 5 5 ,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 M a r t i n s e n owed

it a legal duty,        If no duty exists, there can be no tort of
negligence. Thornock v. State (19871,               229   Mont. 6 7 , 7 4 5 p.2d 324.

We further conclude, that the i s s u e of the boundary l i n e 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
                                                     S T A R O F MONTANA


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