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No. 01-023 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2002 MT 12 

BAR OK RANCH, CO. 

Plaintiff/Respondent, 

v.

VICKI EHLERT, and 

TOM FORD, individuals,

Defendants/Appellants.

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus,

The Honorable Richard A. Simonton, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Gary S. Deschenes, Deschenes Law Office, Great Falls, Montana (Vicki Ehlert); Allen 

Beck, Allen Beck, P.C., Billings, Montana (Tom Ford)

For Respondent:

David A. Veeder, Veeder Law Firm, Billings, Montana

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Submitted on Briefs: August 8, 2001 

Decided: January 29, 2002

Filed:

__________________________________________

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Bar OK Ranch Company (Bar OK) filed a complaint against Vicki Ehlert (Ehlert) for 

breach of contract and trespass in relation to an agricultural lease agreement. Ehlert filed 

an answer, and later filed a motion to amend her answer, which was eventually denied. 

Following a settlement conference in March, 1999, Bar OK's president, Ehlert, and 

Ehlert's father, Tom Ford (Ford), a non-party to the action, entered into a memorandum of 

understanding (MOU) that settled the dispute and included a provision releasing the 

parties from all existing claims. However, disagreements between the parties continued, 

and Bar OK eventually filed a motion to add Ford as a party and to amend its complaint, 

and motions to enforce the MOU. 

¶2 The District Court ruled that the MOU was a valid, enforceable agreement, and allowed 

Bar OK to add Ford as a party, but limited the scope of Bar OK's amended complaint to 

recent allegations regarding breach of the MOU. Ehlert filed an answer to the amended 

complaint as well as a counterclaim, and the District Court subsequently dismissed this 

counterclaim. Ford also filed an answer and counterclaims to the amended complaint. 

Ultimately, the District Court entered summary judgment in favor of Bar OK and 

dismissed Ford's counterclaims. The court later granted Bar OK's motion to dismiss its 

amended complaint. Ehlert appeals the District Court's ruling on the MOU's validity, and 

its denial of her motion to amend her first answer. Ford appeals the court's granting of 

summary judgment, and the dismissal of his counterclaims. 

¶3 We restate the issues as follows:

1. Whether the District Court erred when it concluded the memorandum of 

understanding was a valid and enforceable settlement agreement that released all 

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claims existing among the signatories to the memorandum of understanding at the 

time it was executed; 

2. Whether the District Court erred when it denied Ehlert's motion to file an 

amended answer and counterclaim addressed to the original complaint, that she filed 

prior to negotiation of the memorandum of understanding; and 

3. Whether the District Court erred when it granted summary judgment in favor of 

Bar OK on its motion to dismiss Ford's counterclaims.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The procedural background of this case is complicated, involves several District Court 

filings, and spans nearly three years. Ehlert began leasing property from the Bar OK in 

1994, and in May of that year, the parties extended the lease and set a new lease expiration 

date for May 1, 1998. Apparently, Ford assisted Ehlert in managing the land and cattle, 

and also lived on the premises. This case began in the Summer of 1998, when Bar OK 

filed a complaint against Ehlert, alleging Ehlert breached the lease agreement when she 

failed to make the December 1997 payment. Bar OK also alleged Ehlert was required to 

surrender possession of the property, as the extended lease expired on May 1, 1998. The 

complaint sought back rent and the right to reenter the premises, as well as other damages. 

¶5 On, or about, October 8, 1998, the president of Bar OK, Otto Kuczynski (Kuczynski) 

forwarded a cashier's check he received from Ford, to Bar OK's counsel. The check was 

remitted by Ford for the amount of $80,500.00, and was intended to cover Ehlert's past 

rent. The money was deposited in Bar OK's counsel's law firm trust account while the case 

was still pending. 

¶6 Ehlert filed an answer on November 6, 1998, alleging the past rent had been paid. On 

November 23, 1998, Bar OK filed a motion for summary judgment, contending the 

cashier's check remitted by Ford did not cure Ehlert's default. Discovery continued, and a 

bench trial was scheduled for April 7, 1999. On February 22, 1999, Ehlert filed a motion 

to amend her answer and add a counterclaim, and Bar OK opposed the motion. The 

District Court did not rule on either Ehlert's motion to amend, or Bar OK's motion for 

summary judgment, until well after the settlement conference.

¶7 Ehlert, Kuczynski, and Ford, and their respective counsel, participated in negotiations 

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at the settlement conference on March 9, 1999. Following the conference, the parties filed 

a stipulation to vacate the scheduling order on the grounds that the three had entered into 

an MOU that settled the case. 

¶8 The MOU, dated March 9, 1999, was signed by Ford, Ehlert, and Kuczynski. The 

MOU set forth the agreement among the parties, including the following relevant 

provisions: possession of the buildings would be surrendered by noon on September 1, 

1999; the final day Ford and Ehlert could have cattle on the premises was December 1, 

1999; the $80,500.00 payment would be transferred from the firm's trust account to Bar 

OK within two weeks; the parties agreed to fence the property, sharing the cost equally; 

and Bar OK would cooperate with Ford and Ehlert to furnish the Bureau of Land 

Management (BLM) with evidence Ehlert and Bar OK were in an effective lease from 

December 1, 1997 to September 1, 1999. In addition, the MOU provided for: "Confession 

of Judgement [sic] in Accordance with Settlement Agreement to be held by Counsel for 

[Bar OK] and to be filed if violated and not cured within thirty (30) days of written notice 

to [Ehlert and Ford] of breach." This was the only provision of the MOU that specifically 

referenced a "settlement agreement." Finally, the MOU provided that: "Ford, Ehlert, and 

Bar OK agree to release each other from all claims, and not to interfere with each others 

[sic] rights under this agreement." 

¶9 Bar OK submitted a draft of a settlement agreement; however Ford and Ehlert did not 

sign the proposed settlement agreement, and instead sent an edited version of it back to 

Bar OK. A settlement agreement was never executed by the parties. Bar OK filed a motion 

to enforce the MOU on May 24, 1999, after Ford and Ehlert refused to sign the confession 

of judgment. On June 2, 1999, Ehlert filed a brief in opposition to the motion, and filed a 

motion to enforce the settlement agreement. Bar OK filed a reply brief on June 23, 1999.

¶10 The District Court held hearings on these motions on September 27, 1999, and 

October 25, 1999. At the September 27, 1999 hearing, the court heard testimony from 

William Berger (Berger), the settlement conference attorney who drafted the MOU; Vinita 

Shea, an employee of BLM; and Ehlert. The hearing was continued to October 25, 1999, 

when the court heard testimony from Ford and Kuczynski.

¶11 Berger testified that he believed that all issues among Ford, Ehlert, and Bar OK had 

been resolved at the settlement conference and that the MOU embodied the agreement 

among the parties. Berger testified that he thought the MOU was the final document, and 

although perhaps a more formal document would be drafted later, it would not be 

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substantively different from the MOU. In regards to the confession of judgment provision, 

Berger understood it to mean that if Ehlert and Ford did not turn possession over to Bar 

OK, the confession of judgment would be filed to avoid further litigation. Berger could not 

recall if, in addition to Ehlert, Ford was expected to sign the confession of judgment. 

Berger also explained that an important reason for the settlement of this case was to ensure 

that Ehlert could pasture her cattle on the BLM land adjacent to Bar OK. 

¶12 Shea, a range land management specialist with BLM, explained that in 1998, when 

Ehlert had cattle on BLM land for which she did not have a grazing permit, BLM issued 

Ehlert a trespass. In order to transfer the grazing permit to Ehlert and remove the trespass, 

BLM needed verification of the lease extension to Ehlert. On June 8, 1999, Shea's 

supervisor sent a letter to Bar OK's counsel telling him BLM needed a document signed 

by Bar OK and Ehlert which specifically leased the property. However, on June 10, 1999, 

BLM concluded that the MOU was sufficient to show Ehlert's lease was extended, since it 

reflected the intention of the parties. Shea explained that Bar OK did not delay Ehlert's 

application process, and in her opinion, Bar OK cooperated with BLM in getting the 

permit issued to Ehlert. According to Shea, Ehlert settled the trespass on June 14, 1999, 

when she paid BLM the necessary fine and permit fee. Shea testified that Ehlert applied 

for the permit to pasture cattle on June 14, 1999, and on that same day, Shea gave Ehlert 

verbal approval to pasture her cattle on the BLM allotment. Ehlert received written 

approval from BLM on June 27, 1999.

¶13 Ehlert testified that the parties reached a settlement and a deal had been made at the 

settlement conference. She explained that the MOU settled her counterclaims against Bar 

OK, as well as the back lease payments due to Bar OK. Ehlert admitted to the court that 

she partially complied with the terms of the MOU, explaining that she did not leave the 

premises by September 1, 1999, but was later granted permission to stay until September 

20, following a request for an extension. At the time of the hearing, Ehlert was still living 

on the premises, and Bar OK gave Ehlert permission to stay until October 31, 1999. Ehlert 

also admitted to not complying with the MOU provision concerning fencing, but added 

that the fence contractor hired by Bar OK did not allow her father to work with them. 

¶14 Ehlert further testified that prior to June 11, 1999, she had no contact with BLM 

regarding the grazing permit. Ehlert told the court she believed she needed a written lease 

in order to settle the trespass issue and get a grazing permit, and that Bar OK, in her 

opinion, did not cooperate in showing BLM there was a lease. Ehlert explained to the 

court that the confession of judgment drafted by Bar OK provided for both her and Ford's 

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signatures, and that she could not tell from the confession of judgment what it was she was 

confessing to.

¶15 At the continued hearing on October 25, 1999, the court heard testimony from Ford 

and Kuczynski. Ford told the court his signature on the MOU meant that "everybody was 

to abide" by the MOU, but that "nobody did." Ford told the court he did not request an 

extension to stay on the premises, and that he was still living on the premises. Ford 

testified that the MOU required he sign a confession of judgment, but that both he and 

Ehlert refused to sign the document because it had a "complete[ly] different set of 

language." Further, in Ford's opinion, Bar OK did not cooperate in getting the BLM 

permit, since it did not facilitate getting a lease document executed prior to June 10, 1999. 

Ford testified that while they were waiting for the BLM permit, they had to purchase hay 

for the interim, seek other pasture land, and ship their cattle, thus resulting in damages.

¶16 Kuczynski, the president of Bar OK, testified that the MOU settled all claims, 

extended the lease, and provided a set date for Ford and Ehlert to vacate the premises so 

Kuczynski could then proceed with selling the property. Kuczynski explained to the court 

that he told BLM on April 15, 1999, that the lease with Ehlert had been extended and 

reinstated. Kuczynski understood that both Ford and Ehlert were to sign the confession of 

judgment. He testified that in his opinion, neither Ehlert nor Ford had complied with the 

fencing requirements in the MOU, nor had they moved off the premises by September 1, 

1999. Kuczynski testified that in his opinion, he and Bar OK's counsel complied with the 

provisions of the MOU, particularly by cooperating with BLM. 

¶17 On December 9, 1999, before the District Court entered its judgment on the motions, 

Bar OK filed a motion to add Ford as a defendant and to amend the complaint to allege 

claims against Ehlert and Ford for breaches of the MOU and civil trespass that occurred 

after the October 25, 1999 hearing. Bar OK also filed a second motion to enforce the 

MOU, claiming Ford and Ehlert remained on the property past the dates set out in the 

MOU and also that cattle remained on the property after the December 1, 1999 deadline. 

¶18 On December 17, 1999, the District Court, after considering the parties' briefs and 

arguments, and the testimony presented, entered an order ruling that the MOU "is a valid, 

enforceable settlement agreement that settled the matters between the parties, and the 

parties shall be bound by the terms of the [MOU]."

¶19 Following the parties' briefings on Bar OK's motion to amend its complaint, the 

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District Court entered an order on January 13, 2000. The court found there were no 

substantial breaches of the MOU by either party on or before October 25, 1999. The court 

granted Bar OK's motion to add Ford as a defendant and Bar OK's motion to amend its 

complaint, with the following condition: the amended complaint "shall only allege claims 

which arose from and after October 25, 1999, and that it provides that the claims of the 

original complaint are settled under the terms of the MOU that this Court has previously 

found to be valid and enforceable." 

¶20 In January of 2000, Bar OK filed an application for a preliminary injunction and 

temporary restraining order (TRO), arguing Ehlert and Ford continued to access Bar OK's 

property and that Ford continued to remain on the Bar OK premises. On January 14, 2000, 

the District Court issued a TRO that enjoined Ehlert and Ford from entering Bar OK's 

property and required they remove themselves and all their belongings from the property 

by January 20, 2000 (this date was later changed to January 28, 2000, by stipulation of the 

parties). 

¶21 Bar OK filed its amended complaint on January 18, 2000, alleging breach of contract 

and civil trespass against both Ford and Ehlert.

¶22 On January 31, 2000, upon motion by Ford, a new District Court Judge assumed 

jurisdiction in this matter. On February 3, 2000, Ehlert filed an answer to Bar OK's 

amended complaint, wherein she denied most of the allegations, and added counterclaims 

that alleged Bar OK breached the original lease. On February 22, 2000, Bar OK filed a 

motion to dismiss Ehlert's counterclaim, and a motion to strike some of Ehlert's denials in 

her answer, her request for attorneys' fees, and her demand for a jury trial.

¶23 On April 14, 2000, Ford filed his answer and counterclaims to Bar OK's amended 

complaint, wherein he asserted several affirmative defenses, including fraudulent 

inducement into the MOU, and several counterclaims.

¶24 The District Court held a telephonic hearing to consider the pending motions, in 

which all the parties' counsel participated. On April 27, 2000, the District Court entered its 

order addressing the five pending motions. First, the court granted Bar OK's motion to 

dismiss Ehlert's counterclaims to the amended complaint (filed by Ehlert in February, 

2000). Ehlert's counterclaims were nearly identical to her original counterclaim filed in 

February, 1999, and the court noted Ehlert was precluded from bringing any claims arising 

before the MOU, which had settled all claims between the parties as of March 9, 1999. 

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Second, the court denied Bar OK's motion to strike Ehlert's denials in her amended 

answer. Third, the court granted Bar OK's motion to strike Ehlert's request for attorneys' 

fees, since Ehlert acknowledged there was no authority for such an award. Fourth, the 

court denied Ehlert's motion to amend her counterclaim (filed by Ehlert in February, 

1999), for the same reasons it granted Bar OK's motion to dismiss Ehlert's counterclaim 

filed in February 2000. Finally, the court concluded that it need not rule on Ehlert's 

demand for a jury trial, since Ford had timely demanded a jury trial. A trial date of 

October 10, 2000, was later set by the court.

¶25 The District Court apparently conducted another hearing on May 15, 2000, on Bar 

OK's motions to enforce the MOU. According to the District Court Minutes, both Ehlert 

and Ford were off the property, but some personal property still remained. The court noted 

that if the property was not removed it would treat this matter as a breach of contract and 

trespass. The court further determined that the MOU was binding on Ford. There is no 

transcript of this proceeding, and the only record of it is the District Court Minutes.

¶26 On June 26, 2000, the District Court entered an order that (1), denied Bar OK's first 

motion to enforce the MOU, requiring Ehlert and non-party Ford to sign the confession of 

judgment; and (2), denied Bar OK's second motion to enforce the MOU, since both Ehlert 

and Ford had since left the premises, and the issue was moot. Also on June 26, 2000, the 

District Court converted Bar OK's motion to dismiss Ford's counterclaim to a motion for 

summary judgment, since it would be considering matters outside the pleadings, namely 

testimony from the September 27, 1999 and October 25, 1999 hearings. The court held a 

hearing on the summary judgment on August 21, 2000.

¶27 On September 13, 2000, the District Court granted summary judgment in favor of Bar 

OK on its motion to dismiss Ford's counterclaim and motion to strike Ford's request for 

attorneys' fees. 

¶28 On October 11, 2000, Bar OK filed a motion to dismiss its amended complaint 

without prejudice. The District Court granted the motion upon the filing of stipulations for 

dismissal by all three parties, and ordered that each party was to bear its own attorneys' 

fees and costs. 

¶29 Ehlert and Ford bring separate appeals. Ehlert appeals the following District Court 

rulings: the order dated December 17, 1999, which concluded the MOU was a valid and 

enforceable agreement; and the order dated April 27, 2000, which denied her motion to 

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amend her counterclaim that was filed prior to execution of the MOU. Ford appeals only 

the District Court order of September 13, 2000, which granted summary judgment in favor 

of Bar OK and dismissed Ford's counterclaims. We affirm.

STANDARD OF REVIEW

¶30 We review a district court's conclusions of law to determine if they are correct. 

Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 

680, 686 (citation omitted). When reviewing a district court's denial of a motion to amend 

the pleadings, we determine whether the district court abused its discretion. Porter v. 

Galarneau (1996), 275 Mont. 174, 188, 911 P.2d 1143, 1151-52 (citation omitted). The 

test for abuse of discretion is whether the trial court acted arbitrarily without employment 

of conscientious judgment or exceeded the bounds of reason resulting in substantial 

injustice. See C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138, 146, 951 

P.2d 46, 51. 

¶31 Our standard of review of district court rulings on motions to dismiss under Rule 12(b)

(6), M.R.Civ.P., is:

A complaint should not be dismissed for failure to state a claim unless it appears 

beyond doubt that the plaintiff can prove no set of facts in support of his claim 

which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.

Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In 

considering the motion, the complaint is construed in the light most favorable to the 

plaintiff, and all allegations of fact contained therein are taken as true.

Cut Bank v. Tom Patrick Const. Inc., 1998 MT 219, ¶ 6, 290 Mont. 470, ¶ 6, 963 P.2d 

1283, ¶ 6 (citation omitted). The District Court's determination that Ehlert's counterclaim 

failed to state a claim is a conclusion of law. Our standard of review of a court's 

conclusion of law is whether the tribunal's interpretation of the law is correct. Cut Bank, ¶ 

6 (citation omitted). We review appeals from summary judgment de novo, and determine 

whether there is an absence of genuine issues of material fact and whether the moving 

party is entitled to judgment as a matter of law. Winslow v. Montana Rail Link Inc., 2000 

MT 292, ¶ 38, 302 Mont. 289, ¶ 38, 16 P.3d 992, ¶ 38 (citation omitted). 

DISCUSSION

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Issue 1

¶32 Did the District Court err when it concluded the memorandum of understanding 

was a valid and enforceable settlement agreement that released all claims existing 

among the signatories to the memorandum of understanding at the time it was 

executed?

¶33 Ehlert contends the District Court erred in its December 17, 1999 order by ruling the 

MOU was a valid and enforceable agreement, arguing the MOU was simply an agreement 

to agree, and that only a formal settlement agreement would be binding among the parties. 

Although Ehlert does not dispute that the parties reached a settlement on March 9, 1999, 

she contends the MOU was not the final document that settled the disputes, relying on the 

fact that the settlement agreement had yet to be drafted and that proper documentation of 

the extended lease had to be provided to BLM. Ehlert further argues that the District Court 

erred by not including any findings of fact in its December 17, 1999 order.

¶34 Bar OK contends that the more formal "settlement agreement" document was not 

necessary to finalize or carry out the agreement reached under the MOU. Bar OK argues 

that the MOU was an unconditional settlement agreement, and cites Marta Corp. v. Thoft

(1995), 271 Mont. 109, 894 P.2d 333, and Hetherington v. Ford Motor Co. (1993), 257 

Mont. 395, 849 P.2d 1039, for the proposition that this Court has recognized the validity 

and enforceability of such documents. Bar OK also asserts that Ehlert's appeal of this 

order is compromised by her judicial admissions made in the District Court. Finally, Bar 

OK argues the District Court had no duty to enter findings of fact and conclusions of law 

in its ruling on December 17, 1999.

¶35 Ehlert cites to Rule 52, M.R.Civ.P., for the proposition that the District Court was 

required to enter findings of fact and conclusions of law in its December 17, 1999 order. 

However, Rule 52(a), M.R.Civ.P., provides in part that "[f]indings of fact and conclusions 

of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion 

except as provided in subdivision (c) of this rule." Subdivision (c) deals with judgments at 

trial, and is inapplicable to this case. Although this Court encourages a district court to 

include findings of fact and conclusions of law, "[t]his encouragement . . . does not 

translate into an absolute requirement." Welch v. Welch (1995), 273 Mont. 497, 501, 905 

P.2d 132, 135 (when ruling on a motion for modification of a divorce decree, the district 

court did not abuse its discretion by not entering findings of fact and conclusions of law). 

We conclude the District Court was not required to enter findings with its December 17, 

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1999 order.

¶36 After considering the parties' briefs and arguments, and the testimony and evidence 

presented at the hearings, the District Court ruled the MOU was a valid and enforceable 

agreement. We agree. "An agreement is binding if made by an unconditional offer, and 

accepted unconditionally." Marta Corp., 271 Mont. at 112, 894 P.2d at 335 (citing 

Hetherington, 257 Mont. at 399, 849 P.2d at 1042). We have held that when there were no 

conditions placed on appellant's acceptance of the settlement agreement, appellants were 

"bound by the terms of the written stipulation signed by their counsel pursuant to the [a]

ppellants' participation in a settlement conference." Marta Corp., 271 Mont. at 113, 894 

P.2d at 335.

¶37 All the interested persons--Kuczynski, Ehlert, and Ford--were present at the 

settlement conference, and all participated in the negotiations. The settlement conference 

ended in all three persons, not their counsel, signing the MOU, which memorialized the 

agreement among the signatories. During the hearings, Berger, Ehlert, and Kuczynski 

testified that all the issues among the parties had been resolved at the settlement 

conference. Moreover, in a stipulation filed March 24, 1999, counsel for all the parties 

requested the court's scheduling order be vacated "since the action has been settled by a 

written memorandum of understanding, the terms of which may not be fully carried out 

until December 1, 1999."

¶38 Clearly there was a meeting of the minds during negotiations at the settlement 

conference, and all the participants anticipated being bound by the MOU, as evidenced by 

their signatures on the document and later testimony. We conclude the MOU 

memorialized the agreement among the parties and was valid and enforceable.

¶39 Ehlert argues that a more formal settlement agreement document was necessary to 

ensure both sides achieved what they had "penned" out in the MOU. However, the only 

mention of a "settlement agreement" was in relation to a confession of judgment, which 

was never executed. The MOU was not by its terms conditioned upon the execution of a 

settlement agreement. The record demonstrates that the MOU was not merely an 

agreement to agree, but rather was an unconditional resolution of the parties' claims.

¶40 We conclude the District Court's ruling that the MOU was a valid and enforceable 

agreement that effectively released any claims of the signatories thereto, was correct.

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Issue 2

¶41 Did the District Court err when it denied Ehlert's motion to file an amended 

answer and counterclaim addressed to the original complaint, that she filed prior to 

negotiation of the memorandum of understanding?

¶42 We have already concluded the District Court did not err in ruling the MOU was a 

valid and enforceable agreement that effectively resolved and released any claims existing 

prior to March 9, 1999. Ehlert's proposed amendments to her answer and counterclaim 

were filed in response to Bar OK's original complaint and were also filed prior to the 

execution of the MOU; any claims asserted in Ehlert's initial amended answer and 

counterclaim were deemed resolved by the execution of the MOU.

¶43 We therefore conclude the District Court did not abuse its discretion when it denied 

Ehlert's motion to file an amended answer and counterclaim addressed to the original 

complaint that she filed prior to execution of the MOU.

Issue 3

¶44 Did the District Court err when it granted summary judgment in favor of Bar 

OK on its motion to dismiss Ford's counterclaims?

¶45 Ford appeals the September 13, 2000 order granting summary judgment in favor of 

Bar OK and dismissing Ford's counterclaims that were filed with his answer to Bar OK's 

amended complaint. In his answer and demand for a jury trial, Ford asserted six 

affirmative defenses including fraudulent inducement in regards to the MOU, constructive 

fraud, estoppel, and equitable estoppel. Ford also put forth seven counterclaims, alleging: 

(I) Ford and Ehlert were fraudulently induced into entering the lease agreement in 1994; 

(II) Bar OK committed constructive fraud by not allowing Ehlert to purchase the property; 

(III) Bar OK was unjustly enriched by lease payments and increased value of the land; 

(IV) Bar OK breached an oral contract Ford and Ehlert had to purchase property; (V) Bar 

OK tortiously interfered with Ford's business; (VI) Bar OK intentionally inflicted 

emotional distress on Ford and his family; and (VII) Bar OK interfered with Ford's access 

to the property. Notably, Ford alleged that he was fraudulently induced into signing the 

MOU as an affirmative defense, and did not plead it as a counterclaim.

¶46 In its order granting summary judgment on Bar OK's motion to dismiss Ford's 

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counterclaims, the District Court recognized that the counterclaims primarily stemmed 

from an alleged agreement between Bar OK and Ford and Ehlert, which ostensibly preexisted the MOU, and concerned an option to purchase the property. The court again noted 

that the MOU resolved all prior claims, and thus concluded Ford could not bring a 

counterclaim premised upon matters occurring prior to March 9, 1999. 

¶47 Ford argues the District Court erred when it failed to submit to the jury the question of 

fact concerning whether Ford's signature on the MOU was a result of Bar OK's fraudulent 

inducement, noting that if Ford is not bound by the MOU, he may bring counterclaims that 

occurred prior to the MOU. 

¶48 Bar OK contends that because the majority of Ford's counterclaims concern matters 

resolved by the release provision of the MOU, the District Court did not err. Bar OK 

points out that since Ford was not a party to the original lease agreement, he cannot bring 

a claim of fraudulent inducement arising from its execution. Bar OK also notes that 

because its amended complaint was dismissed by stipulation and consent of the parties, 

Ford's affirmative defenses are moot.

¶49 Although Ford appeals the District Court's order granting summary judgment and 

dismissing his counterclaims, Ford's main contention on appeal relates to his affirmative 

defense that he was fraudulently induced into signing the MOU. We agree with Bar OK 

that once the amended complaint was dismissed, any of Ford's affirmative defenses filed 

in response to the amended complaint are rendered moot. Ford made no separate claim for 

fraudulent inducement that would survive a dismissal of the complaint.

¶50 Moreover, even if the court had addressed his fraudulent inducement claim, Ford 

cannot claim any damages resulting from an alleged breach of the MOU since he had no 

personal interest in the property at issue. Ford admitted during his testimony that he did 

not own any of the subject cattle, land, or equipment, and that he transferred all his assets 

to Ehlert in 1988. Finally, we also note that at the conclusion of the hearing on May 15, 

2000, at which all the parties and their counsel were present, the District Court determined 

the MOU was binding on Ford, and Ford did not appeal this ruling. 

¶51 Counts I, II, III, IV, and V of Ford's counterclaim allege claims that occurred in 

relation to the execution and performance of the original lease between Bar OK and 

Ehlert, all of which predated the MOU. Thus, the District Court properly struck these 

counts of the counterclaim. Moreover, in any event, Ford was not a party to the lease 

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agreement, and therefore cannot bring the claims.

¶52 Ford's Count VI, intentional infliction of emotional distress, refers to acts by Bar OK 

that were set out in the previous counts. For the same reasons set forth above, the District 

Court correctly dismissed this count as released under the MOU. Moreover, Ford admitted 

in his deposition that he did not suffer any emotional distress.

¶53 Ford's final count alleged that Bar OK interfered with his access to his property. 

Under the MOU, Ford and Ehlert had pasture rights on the Bar OK's property until 

December 1, 1999, at the latest. Nothing in the MOU allowed Ford to remain on the 

property past December 1, 1999. Ford therefore did not have the right to be on Bar OK's 

property and, as noted above, Ford had no ownership interest in any contiguous property, 

and the District Court correctly dismissed this count. We therefore conclude that there 

were no genuine issues of material fact concerning Ford's counterclaims, and that Bar OK 

was entitled to judgment as a matter of law. 

¶54 For the foregoing reasons, we affirm. 

/S/ PATRICIA COTTER

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ JIM RICE

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