Robinson v. First SEC. Bank of Big Timber

No. 8 6 - 2 6 1
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, 1 9 8 6
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. - at 1355, 42 St.Rep. at 1922.
Id.,
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