No. 86-261 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JAMES ROBINSON and LORRAINE 

ROBINSON, 

Plaintiffs and Appellants, 

FIRST SECURITY BANK OF BIG TIMBER, 

MONTANA, and LEONARD BRIEN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Sweet Grass, 

The Honorable Byron L. Rohb, Judqe presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Houtz, Forsyth, Montana 

For Respondent : 

Landoe, Brown, Planalp, Kommers & Johnstone; 

Gene I. Brown, Bozeman, Montana 

Submitted on Briefs: August 7, 1986 

Decided: November 20, 1986 

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Filed: Ct :.. 6 L 1986 

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Clerk 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

This is an appeal from the summary judgment entered in 

favor of defendant bank by the District Court of the Sixth 

Judicial District, Sweet Grass County. Plaintiff appeals. 

We affirm. 

There is one issue in this case: Did the District Court 

err in granting summary judgment? 

Appellants and Leonard K. Brien and Venetta F. Brien 

were partners in the purchase and operation of the Grand 

Hotel and Bar in Big Timber. First Security Bank of Big 

Timber loaned the Grand Hotel $35,000 on the personal 

guarantees of the Briens and the appellants. The Bank also 

made several other loans for operation of the Grand Hotel, 

and loans to Leonard Brien and appellants for an outside real 

estate venture. Appellants initially disputed some of these 

loans saying they were made to Briens personally. In April, 

1982, the appellants and Briens were in default on the loan 

of $68,942.90 having failed to make payments for the prior 16 

months. Appellants and Briens signed a new note for 

$72,942.90 (including $4,000 new money and a renewal of the 

existing obligation). The new note was secured by a mortgage 

on the Grand Hotel property. In May, 1982, an additional 

$6,500 was loaned for expenses. In October, 1982, the Rank 

filed a foreclosure action on the Grand Hotel property. In 

December, 1982, the Bank, appellants, and the Briens entered 

into an agreement. The appellants and the Briens were 

represented by counsel. The Bank agreed to stay the 

foreclosure proceedings for six months and reduce the 

interest rate on outstanding obligations to 10% per annum 
effective September, 1982. The appellants and Briens agreed 

that the sum of $96,865.35 was "properly due and owing" to 

the Bank by them and that the debt was secured by a mortgage 

on the Grand Hotel property. They agreed: 

The [appellants and Briens] hereby irrevocably 

consent to entry by the court of judgment in favor 

of the [Bank] and against [them] in the foregoing 

amounts.. . . 

The agreement further provided: 

7. It is contemplated that near the end of the 

extension period, the parties may agree to a sale 

of the premises at private auction upon terms and 

conditions to be agreed upon between the parties. 

In the event that the terms of such a sale can be 

agreed upon by the parties, [appellants and Briens] 

shall execute a deed to the purchaser at such sale, 

free and clear of any right of redemption in 

[them], and consent to entry of a deficiency 

judgment in favor of the [Bank] and against [them] 

in the amount of the difference between the amounts 

owing to the [Bank] and the net proceeds of sale 

after expenses of sale, payment of the underlying 

obligation and any other amounts that may be 

required to be paid in order to convey good title 

to purchaser. In the event the parties are unable 

to agree, the property shall be sold at Sheriff's 

sale as provided in the law, and the purchaser 

[sic] shall be liable for any deficiency. 

The Grand Hotel and Bar property was sold and appellants 

signed a note for the $19,000 deficiency. 

In May, 1985, appellants filed this action alleging the 

Bank was negligent in loaning money to the Briens, and in not 

advising Robinsons they would be held responsible for the 

money loaned to the Briens, and initiating a foreclosure 

proceeding. Robinsons argue, that even if the consent 

agreement is valid, summary judgment should not have been 

granted because of the Bank's actions subsequent to the 

agreement, including the Bank's involvement in attempted 

sales and lease and later foreclosure. They contend their 

signature on the consent agreement was involuntary and 

obtained by duress. They contend the agreement is a fraud 
because it is not an accurate reflection of the money owed by 

the Robinsons. They contend the Bank should be estopped from 

taking advantage of its own wrong while asserting its strict 

legal right. Appellants seek damages for breach of fiduciary 

duty, implied covenant of good faith and fair dealing, 

misrepresentation, constructive fraud, negligence, unfair 

trade practices, and deceptive practices. 

The District Court granted summary judgment in favor of 

the Bank. In so doing, it stated: 

Plaintiffs Robinson not only signed a new 

promissory note to the bank for about $72,000.00 in 

April, 1982 which encompassed various prior notes 

and advances to Briens that Robinson (sic) now 

complain about, but Robinsons and Briens all signed 

a written agreement with the bank in December, 1982 

reciting and settling their various loans and. 

interest up to that time, upon which transaction 

Robinsons and Briens were all represented by 

counsel, and then Robinsons also signed another 

note after the foreclosure for a $19,000.00 

deficiency.. . . Robinsons would now impeach and 

renounce all of their former actions and the 

instruments they executed by a suit filed several 

years later, but I feel their position is not only 

inconsistent with all their prior actions and 

declarations, but so legally and equitably unsound 

as to require summary judgment for the bank. 

The sole issue before us is whether the District Court 

erred in granting summary judgment. We hold that it did not. 

Rule 56, M.R..Civ.P. permits summary judgment if "there is no 

genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law." In their shot-gun 

approach, appellants attempt to raise many factual disputes 

and theories that would preclude the granting of summary 

judgment. We will not respond to each theory and factual 

contention individually because this Court has held that "a 

compromise agreement, when the basis for a final judgment 

operates 'as a merger and bar all preexisting claims and 

causes of action.'" Webb v. First National Rank of Hinsdale 
(Mont. 1985), 711 P.2d 1352, 1355, 42 St.Rep. 1919, 1921. In 

the same case, we held a compromise agreement which results 

in a dismissal with prejudice of the claims asserted 

constitutes a final judgment on the merits which bars any new 

actions. - Id., at 1355, 42 St.Rep. at 1922. 

In this case, the appellants not only signed a new 

promissory note in April, 1982, which encompassed all prior 

loans, but they also acknowledged the debt in the December, 

1982, consent agreement, then signed another note for the 

deficiency after the hotel was sold. 

The claims that appellants now seek to enforce all arose 

out of the amount loaned to the Robinsons and its repayment. 

These claims were all compulsory counterclaims pursuant to 

Rule 13(a), M.R.Civ.P. because they all arose out of the same 

transaction or occurrence that was the subject matter of the 

Bank's foreclosure suit. O'Neal, Booth and Wilkes v. Andrews 

(Mont. 1986), 712 P.2d 1327, 43 St.Rep. 120; Wellman v. 

Wellman (1982), 198 Mont. 42, 643 P.2d 573. 

Since all these claims were compulsory counterclaims, 

the dismissal with prejudice of the first claim based on the 

consent agreement concluded all pre-existing claims between 

the parties. The claims appellants raise now are - res 

judicata, and summary judgment was properly granted. 

Judgment of the District Court is a 

We Concur: 

Justices d