                                 No. 80-330
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1981


JERRY L. KRUSEMARK, as the successor in
interest of PARKVIEW MEMORIAL GARDENS,
                         Plaintiff and Appellant,


MARLENE H. HANSEN, a/k/a MARLENE H. SPAIN,
ALAN R. CAPERS, PARK VIEW MEMORIAL GARDENS,
INC., et al.,
                         Defendants and Respondents.


Appeal from:      District Court of the Sixth Judicial District,
                  In and for the County of Park.
                  Honorable Diane G. Barz, Judge presiding.
Counsel of Record:
     For Appellant:
         McKinley Anderson, Bozeman, Montana

     For Respondents:
         Crowley, Haughey, Hanson, Toole       &   Dietrich,
          Billings, Montana
         Landoe, Brown, Planalp, Kommers      &    Lineberger,
          Bozeman, Montana

                                   Submitted on briefs: March 4, 1981
                                                   Decided: April 22, 1981
Filed:
         APR Z2   1S8I



                                      Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

      Plaintiff Jerry Krusemark, as successor in interest of
two corporations which operated the Park View Memorial
Gardens cemetery, appeals from a summary judgment of the
Sixth Judicial District Court, Park County, granted to
defendant First Security Bank of Livingston, Montana.
      Plaintiff presents one issue for our review:
      Did the District Court err in granting this motion for
summary judgment? We hold that the District Court acted
properly.       We affirm the judgment of the District Court.
      This appeal constitutes plaintiff's third request for
this Court's review of orders granting summary judgment in
favor of the defendant First Security Bank.       In 1979, plaintiff
attempted to appeal from the District Court's initial entry
of summary judgment in favor of the Bank and we declined to
entertain the appeal.      Final judgment had not been entered
by the District Court at that time, pursuant to Rule 54(b),
M. R. Civ. P.                                   ,
                 See, Krusemark v. Hansen (1979) - Mont     .-      I


597 P.2d 48, 36 St.Rep. 159.       In 1980, after entry of final
judgment, we reversed the District Court's summary judgment
entered in favor of the Bank, holding that the entry of
summary judgment failed to comply with Rule 56(c), M.R.Civ.P.
See, Krusemark v. Hansen (1980), - Mont       .     ,   606 P.2d
1082, 37 St.Rep. 304.      We then remanded the case to the
District Court for further proceedings.
      After the case was remanded to the District Court, the
Bank renewed its motion for summary judgment.      Following hearing
on this motion and review of the parties' arguments, the
District Court again ordered the entry of summary judgment
in favor of the Bank.      Following Rule 54(b), M.R.Civ.P.,       the
court directed the entry of final judgment in favor of the
Bank, dismissing it as a party defendant.    This appeal
followed.
     This lawsuit springs from the financial difficulties of
a Livingston cemetery business, the Park View Memorial
Gardens. In 1962, Kenneth and Marlene Hansen formed Park
View Memorial Gardens, Inc. to own and operate a cemetery
and to sell cemetery plots, interment vaults and grave
markers on contract.     These sales contracts provided that
the company would deposit 15 percent of the purchase price
of the plot or vault into a trust entitled "Perpetual Care
and Maintenance Trust."     The contracts further provided that
an additional, unspecified portion of the purchase price
would be held in a separate fund to insure performance under
the contracts.     Plaintiff's complaint seeks to recover these
trust monies alleged to have been wrongfully taken by defendants.
Plaintiff is the present owner of the cemetery business.       Accord-
ing to plaintiff's complaint, defendants are the former owners
of the business.
     In 1969, the Hansen's company transferred its interest
in the cemetery business to Alan Capers.    Capers paid $65,000
for the assets, by giving the company $1,000 downpayment and
$64,000 in promissory notes.     The notes were secured by a
mortgage on the cemetery.    At the time of sale, there was a
deficiency in the trust funds to be transferred to Capers.
The sales agreement between the corporation and Capers stated,
however, that the corporation had no obligation to bring "the
trust funds current."     At the time of sale to Capers, $5,500
of the perpetual care fund was held in an irrevocable trust
with the Union Bank of Helena acting as trustee.    Additionally,
the company held approximately 15 certificates of deposit worth
$22,000 purchased from First Security Bank.
     Capers formed a new corporation to run the cemetery. In
January 1971, this company, in need of money, borrowed
$20,000 from the First Security Bank and pledged some
savings certificates as collateral.     These savings certificates
were replacement certificates for the certificates of deposit
acquired in the sale of the cemetery.    On June 1, 1971, the
Capers Company consolidated a number of debts owed to the
First Security Bank, and executed a promissory note secured
by a second mortgage on the cemetery property.    In April
1972, Marlene Hansen, as successor in interest to her cemetery
corporation, transferred to the Bank the first mortgage on
the business given by Capers in connection with his 1969
purchase, in exchange for $25,000.
     The Capers cemetery operation, gravely indebted, failed.
Capers left Livingston and abandoned his business.    At this
time, Krusemark became interested in purchasing the cemetery.
Krusemark conducted a fairly extensive examination of the
business' financial background and the sale contracts made
with plot purchasers.   Krusemark discussed his interest in
the cemetery purchase with the First Security Bank president,
Claude Erickson.   Krusemark indicated that he wanted to
purchase the cemetery for $50,000 if the business debts
could be eliminated via a foreclosure sale.    The Bank informed
Krusemark that it would be willing to lend him the money to
purchase the cemetery property.   The Bank also informed him
that it would satisfy the amount owing on the Capers promissory
note by claiming the proceeds of the savings certificates.
     On May 25, 1972, the Capers cemetery business went
through foreclosure sale and was purchased by Krusemark for
$50,000.   Krusemark borrowed $55,000 from the First Security
Bank to make this purchase.   On May 31, 1972, the Bank
applied the proceeds of the Capers company savings certi-
ficates to the payment of the promissory note for which the
certificates had been pledged as security.    Krusemark knew
of the Bank's activity with regard to the certificates and
threatened the Bank with a lawsuit.    This lawsuit was settled
before any complaint was filed.     In exchange for a $10,000
reduction on his $55,000 loan with the Bank, Krusemark
agreed to release the Bank from any legal liability with
regard to the certificates.     This release was entered into
in 1974.     Three years later, plaintiff brought this suit
against Hansen, Capers, their cemetery businesses and the
Bank.     In its answer to this complaint, the Bank affirmatively
pleaded the defenses of release and statute of limitations.
       We hold that the release entered into between Krusemark
and the Bank bars this action against the Bank, and that
summary judgment was properly granted pursuant to Rule 56,
M.R.Civ.P.     The release agreed to by both parties extinguished
any claim brought by Krusemark, involving the perpetual care
maintenance and performance funds.     See, section 28-1-1601,
MCA.      The release provided as follows:
        "RECITALS:
        "1. The undersigned Jerry L. Krusemark alleges
        that he has claims, either in his own right or
        as a representative of others, to recover the
        value of savings certificates pledged to the
        First Security Bank of Livingston, Montana, by
        Park View Memorial Gardens, Inc., or Paradise
        Valley Memorial Gardens, Inc., or other corpor-
        ations of similar name.
       "2. The undersigned Jerry L. Krusemark contends
       that said certificates so pledged as aforesaid
       were in fact subject to a trust and that the
       trustee who made the deposit had no right to pledge
       or hypothecate the savings certificates which were
       foreclosed upon by said bank.
        "3. The said First Security Bank of Livingston,
        Montana, has denied the existence of any trust
        and has denied knowledge, actual or constructive,
        of any trust affecting such certificates or the
     limitation on the right of the borrower to pledge
     or hypothecate said certificates.
     "4. In order that certain other transactions
     hereinafter referred to might be consummated
     the undersigned Jerry L. Krusemark desires and
     intends to release said bank of and from all
     claims, demands, and charges of every kind and
     character arising out of the claims and con-
     tentions above noted and also arising out of
     any other claims or contentions of the said Jerry
     L. Krusemark, individually or in any representa-
     tive capacity, as a result of any transactions
     with said bank of any kind or character or at any
     time.
     "RELEASE:
     "NOW, THEREFORE, for the consideration hereinafter
     expressed, the undersigned Jerry L. Krusemark,
     for himself and for any other party whom he
     represents, to the extent authorized by law, does
     hereby forever acquit, release and discharge
     First Security Bank of Livingston, its successors
     and assigns, of and from all claims and actions
     of every kind and character, whether arising out
     of the circumstances above mentioned, or any other
     transactions or circumstances of any kind or
     character without limit, and
     "FURTHER, the undersigned Jerry L. Krusemark does
     hereby covenant that he will not encourage, foster
     or support, except to the extent that he may be
     required to do so by legal process for which he
     is in no way responsible, directly or indirectly,
     any claim or action against First Security Bank
     of Livingston relating to or arising out of any
     act or transaction occurring prior to the date
     hereof.
     "This release constiwtes the settlement of dis-
     puted claims and shall not be taken as an
     admission of liability by either party."
     In his argument to this Court, Krusemark attempts to
bypass the bar of the release by contending that he is not
personally bringing this action; but is acting as the repre-
sentative of others--the cemetery plot and vault purchasers.
We do not accept this contention.   The release expressly
states that Krusemark agreed to "acquit, release and discharge"
the Bank from all claims "for himself and for any other
person whom he represents."   The release   bars any lawsuit
brought by Krusemark in any capacity with regard to the
cemetery trust funds.
     The extensive discovery conducted in this case clearly
shows that the release was not obtained improperly.      The
deposition taken by the Bank's attorneys from Krusemark
indicates that he freely entered into the release agreement.
Krusemark failed in his burden of proving that the release
was not to bar his claim.     No evidence exists in the record
to show that the release was entered into fraudulently or
without adequate consideration.       See, Williams v. Thomas
(1920), 58 Mont. 576, 194 P. 500.
     Summary judgment was properly granted in this case in
favor of the Bank.     No genuine issues of fact regarding the
release were left to be resolved by a trier of fact and the
Bank, the moving party, is entitled to judgment as a matter
of law.      Rule 56(c), M.R.Civ.P.   We affirm the judgment of
the District Court.




We Concur:



      Chief Justice
