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


FRED G. CARL and JOAN A. CARL,
              Plaintiffs and Appellants,
       -vs-
WILLIAM CHILCOTE; SECURITY ABSTRACT COMPANY;
RICHLAND NATIONAL BANK; AND CITY OF MISSOULA,
MONTANA,
              Defendants and Respondents.
       and
RICHLAND NATIONAL BANK,
              Third-Party Plaintiff,
       -vs-
PIONEER 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 grant-
ing 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-ain-
tiffs 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 Ab-
stract).   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 apart-
ment 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 labor-
ers 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 attor-
ney. 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 perform-
     ing 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 judg-
ments 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, authoriz-
ing 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 ful-
filling 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 support-
ing 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 confu-
sion . . .  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 Novem-
ber 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 judg-
ments 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 ap-
proving 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 possi-
bility 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 agree-
ment.    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
