No. 90-196
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
ART WEAVER, on his own behalf and
on behalf of Weaver-Maxwell, Inc.,
a Montana corporation,
Plaintiff and Appellant,
LAW FIRM OF GRAYBILL, OSTREM, WARNER
& CROTTY, and Leo Graybill, Jr.,
Gregory H. Warner and Turner Graybill,
Defendant, Cross-Appellant
and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
r" 3
f 0
0 =G
Y Art Weaver, Kalispell, Montana, Pro Se
4 w w
t -1
o w
For Respondent:
n CC --:
CL
W -L a-
Robert J. Emmons, Esq. ; Emmons Sullivan, Great
=!
LL.
4
- 4
,*x
1
2
% Falls, Montana
&
U G
J
a"
a W f Z
z Submitted on Briefs: September 27, 1990
.
0
03
0
ZE Decided: December 31, 1990
Justice Diane G. Barz delivered the Opinion of the Court.
Art Weaver, appearing pro se, appeals from the summary
judgment granted to defendants, his former attorneys, in the
~istrictCourt for the Eighth Judicial District, Cascade County.
We affirm.
Weaver's brief does not set forth a statement of the issues
he wishes to raise on appeal. However, his position can be
summarized as a view that issues of material fact preclude summary
judgment on each of the eight counts of his complaint.
Weaver, his wife, and another couple, the Maxwells, were the
stockholders of Weaver-Maxwell, Inc., which operated a farm
equipment store in Great Falls, Montana, and Weaver-Maxwell Havre,
Inc., which operated a farm equipment store in Havre, Montana. In
August 1980, the defendants agreed to represent both corporations
and the individual stockholders in potential litigation against
Northwestern Bank of Great Falls and International Harvester (IH).
The parties agreed that defendants would be paid 30% of the
recovery if the cases were tried.
In October 1980, Northwestern Bank sued Weaver-Maxwell, Inc.,
and its stockholders, who filed counterclaims. Weaver-Maxwell,
Inc., was awarded a judgment of $2,659,671 after a March 1985 jury
trial. This Court reversed that judgment and ordered a new trial.
Northwestern Nat. Bank v. Weaver-Maxwell (1987), 224 Mont. 33, 729
P.2d 1258. The parties eventually settled the case in January
1988, with Northwestern Bank paying $1,000,000 to the counter-
claimants and $300,000 to defendants, their attorneys.
2
t
I r
b- I
In April 1982, Weaver-Maxwell, Inc., sued IH in Federal
District Court. IH filed an interpleader and third party action
joining Weaver-Maxwell Havre, Inc., and its stockholders. In
January 1985, a federal district court jury awarded Weaver-Maxwell
Havre, Inc., a $1,000,000 judgment against IH and awarded IH a
$40,000 judgment against Weaver-Maxwell, Inc. Both sides gave
notice of appeal. In June 1985, the parties settled the case when
IH paid $720,000. Of that amount, $40,000 went to Art Weaver for
payment of costs; 30% of the balance, or $204,000, was paid to
defendants; and the remaining $476,000 was divided equally among
the four shareholders.
Art Weaver filed this lawsuit in January 1988. His amended
complaint contains eight counts which may be summarized as follows:
Count I - a claim that defendants overcharged fees.
Count I1 - a claim for interest on the settlement with
Northwestern Bank due to defendants1 delay in filing the action.
Count I11 - a claim for compensation for the loss of a Burger
King franchise in Bozeman.
Count IV - a claim for compensation for two motor homes
repossessed by Northwestern Bank.
Count V - a claim based on the failure to file a timely
antitrust claim in the IH action.
Count VI - a claim for prejudgment interest for the IH case.
Count VII - a claim that defendants1 malpractice resulted in
lower settlements in both cases.
Count VIII - a claim for the proceeds of the I1Strohcontract.'I
B
b
I. ,
After discovery, the defendants moved for summary judgment.
Finding that there is no genuine issue of material fact and that
there was no legal malpractice, the District Court granted summary
judgment to the defendant attorneys.
Did issues of material fact preclude summary judgment on each
of the eight counts in the complaint?
Rule 56(c), M.R.Civ.P., provides that summary judgment is
proper when the pleadings, depositions, answers to interrogatories,
admissions, and any affidavits on file show that there are no
genuine issues of material fact and that the moving party is
entitled to a judgment as a matter of law. Our standard of review
is whether the trial court was correct. Steer, Inc. v. Department
of Revenue (Mont. December 11, 1990), No. 90-106, slip op. at 6.
Initially, we will discuss the limits placed upon Weaver's
claims by his pro se status. While, as Weaver contends,
shareholders and directors of a corporation have the right to "take
action1' on the corporation's behalf under § 35-1-930, MCA, that
does not entitle those persons to practice law on behalf of the
corporation. A corporation is a separate legal entity and cannot
appear on its own behalf through an agent other than an attorney.
Annotation, Propriety and Effect of Corporation's Appearance Pro
Se, Through Agent Who Is Not Attorney, 19 A.L.R.3d 1073 (1968).
Therefore, Weaver cannot represent Weaver-Maxwell, Inc., or Weaver-
Maxwell Havre, Inc. Weaver cannot appear on behalf of his wife or
the Maxwells, either, without being guilty of contempt of court.
1
s
r
Section 37-61-210, MCA. Therefore, the only claims which we
consider, and the only damages which could be awarded, are those
of and to Weaver individually. We will discuss each count of the
complaint separately.
Count I. The attorney fees on the Northwestern Bank case were
$300,000 on a $1,300,000 settlement. Prior to the settlement,
Weaver had informed defendants that he would accept no less than
$1,000,000 in settlement and that they should negotiate for their
fee, which would have to come out of the settlement amount above
$1,000,000. That demand was met. The actual attorney fees were
also less than the originally agreed upon fee of 30%.
Weaver further claims that he was overbilled for out-of-
pocket expenses. Under the original fee agreement, out-of-pocket
expenses were to be billed in addition to the 30% fee agreed upon.
That arrangement was carried out. The amount of out-of-pocket
expenses was large and was apparently larger than originally
anticipated. However, after examining the record, we conclude that
no grounds have been shown to support the claim of excessive fees.
Count 11. The exhibits attached to both parties' briefs
indicate that an inability on the part of Weaver and defendants to
agree upon defendants' fees was largely responsible for delays in
the Northwestern Bank case between 1980 and 1983. That in itself
is not a basis for charging defendants with willful delay under
5 37-61-407, MCA. Weaver's claim that defendants purposefully
delayed action in the Northwestern Bank matter because they wished
to wait for Turner Graybill to finish law school and join the firm
8
. L
.*
is completely without support in the record.
Count 111. In the Northwestern Bank trial, defendants offered
a special verdict question addressed to the loss of the Burger King
franchise. It was rejected. However, the issue was before the
jury because Instruction No. 30A specifically allowed for an award
of damages for the loss of the franchise. We conclude that the
claim for the loss of the franchise was dealt with as part of that
trial and eventual settlement and that the present claim is
therefore without merit.
Count IV. The defendants1 alleged wrongful failure to obtain
lien releases from Northwestern Bank on two of Weaver's motor homes
occurred in 1981. Weaver knew of this failure at that time. A
three-year statute of limitations applies. Yet Weaver did not file
his complaint against defendants until 1988, well beyond the time
allowed under the statute. We conclude that the District Court was
correct in ruling that this claim is barred by the statute of
limitations.
Counts V and VI. These two counts relate to the IH case.
Weaver, individually, was not a plaintiff in the IH case. He,
individually, cannot claim any damages from any mishandling of that
case by defendants. Therefore we will not consider the claims
raised in Counts V and VI.
Count VII. To succeed, Weaver's claim of malpractice must be
supported not only by a showing of malpractice by defendants, but
by a showing that Itbut forrt their negligence, he would have
recovered additional amounts from Northwestern Bank. Kinniburgh
v. Garrity (Mont. 1990), 798 P.2d 102, 105, 47 St.Rep. 1655, 1659.
Weaver has utterly failed to do that. After consideration of the
claims presented above, there is nothing to support Weaver's claim
that a higher negotiated settlement should have been obtained on
the Northwestern Bank case. Certainly on its face and after the
reversal of the jury verdict by this Court, the court-approved
settlement appears favorable to Weaver. We hold that the court was
correct in entering summary judgment for defendants on this count.
Count VIII. Disposition of the proceeds of the Stroh contract
was included in the settlement agreement with Northwestern Bank.
Although the specifics of the settlement were sealed and are not
in the record before this Court, correspondence between Weaver and
the defendants shows that they specifically discussed releasing the
proceeds of the Stroh contract during settlement and that Weaver
agreed to the settlement. The settlement included the proceeds of
the Stroh contract. The present claim is without merit because
Weaver has already been compensated, in the settlement, for the
Stroh contract proceeds.
Weaver claims that defendants wrongfully failed to release to
him a transcript of the Northwestern Bank trial which he had
requested as part of discovery. He submitted to the District Court
a "Request to order defendants to produce responses1' which,
although difficult to decipher, asked that the court order
defendants to produce these transcripts. However, as defendants'
counsel points out, the copy of the transcript in defendants'
possession was prepared at the expense of Northwestern Bank for the
appeal to this Court. It was not Weaver's. Weaver could have
obtained the transcript through the court reporter.
Where the discovery sought is obtainable through some other source
that is more convenient, less burdensome, or less expensive, a
court may limit the frequency or extent of discovery. Rule
26 (b)(1), M.R. Civ. P. We hold that there is no reversible error in
the court's failure to grant Weaver's discovery request.
In his briefs before this Court, Weaver makes various other
claims which were not set forth in his complaint or before the
District Court. This Court will not consider issues or theories
of the case first raised on appeal. Clemans v. Martin (1986), 221
Mont. 483, 485, 719 P.2d 787, 789.
In conclusion, our examination of the record and transcript
shows that Weaver's claimed issues of fact do not have merit as a
basis for appeal because none of them involve material issues of
fact. We hold that the District Court was correct in granting
summary judgment for defendants.
Affirmed.
/
Justice
We concur: /