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: 

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YG Art Weaver, Kalispell, Montana, Pro Se 

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-1 For Respondent: t ow 

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W -L a- 12 x Robert J. Emmons, Esq. ; Emmons & Sullivan, Great =! 4 ,* LL. -4% Falls, Montana 

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0 z Submitted on Briefs: September 27, 1990 

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.. 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 

~istrict Court 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 counterclaimants and $300,000 to defendants, their attorneys. 

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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 I1Stroh contract.'I 
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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 WeaverMaxwell Havre, Inc. Weaver cannot appear on behalf of his wife or 

the Maxwells, either, without being guilty of contempt of court. 
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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-ofpocket 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 
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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. 

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Justice 

We concur: /