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 YG Art Weaver, Kalispell,Montana, Pro Se 0 

## = 4 ww -1 For Respondent: t ow n CC --: CL W -La- 12x Robert J. Emmons, Esq. ; Emmons & Sullivan, Great =! 4 

## ,* LL. -4% Falls, Montana UJ G a" 

### a WfZ 0 z Submitted on Briefs: September 27, 1990 03 0 

# .. ZE Decided: December 31, 1990Justice 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 aview 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, andWeaver-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 Fallsand InternationalHarvester (IH). The parties agreed that defendants would be paid 30% of the recovery if the caseswere tried. InOctober 1980,Northwestern Bank suedWeaver-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. NorthwesternNat. Bankv. 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. 2t 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. InJune 1985, theparties settled the casewhen 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 countswhich 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 defendants1delay 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 defendants1malpractice resulted in lower settlements in both cases. Count VIII

## - a claim fortheproceeds of the I1Strohcontract.'Ib B I. , After discovery, the defendants moved for summary judgment. Finding that there is no genuine issue of material fact and that therewas no legalmalpractice, the District Court granted summary judgment to the defendant attorneys.

Did issues of material factpreclude summary judgment on each of the eight counts in the complaint? Rule 56(c), M.R.Civ.P., provides that summary judgment is properwhen thepleadings,depositions,answersto 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 amatter of law. Our standard of review is whether the trial courtwas 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, shareholdersand directors of a corporationhave 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 cannotrepresentWeaver-Maxwell, Inc.,orWeaverMaxwell Havre, Inc. Weaver cannot appear on behalf of his wife or the Maxwells, either,without being guilty of contempt of court.s 1

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 feeson theNorthwestern Bank casewere $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 expenseswere 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,afterexamining 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' feeswas 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 theNorthwestern Bank matter because they wished to wait for Turner Graybill to finish law school and join the firm8 

# . L

.* is completely without support in the record. Count 111. IntheNorthwestern Bank trial,defendantsoffered a special verdict questionaddressed to the lossof theBurgerKing franchise. It was rejected. However, the issue was before the jurybecause InstructionNo. 30A specifically allowed for an award of damages for the loss of the franchise. We conclude that the claim for the loss of the franchisewas dealtwith as part of that trial and eventual settlement and that the present claim is therefore without merit. Count IV. The defendants1alleged wrongful failure to obtain lienreleases fromNorthwestern Bank on twoofWeaver'smotorhomes occurred in 1981. Weaver knew of this failure at that time. A three-year statuteof limitationsapplies. YetWeaverdid not file his complaint against defendants until 1988,well beyond the time allowed under the statute. We concludethattheDistrict Courtwas 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,cannotclaimanydamages fromany mishandling of that

case by defendants. Therefore we will not consider the claims raised in CountsV and VI. CountVII. To succeed,Weaver's claim ofmalpracticemust be supported not only by a showing of malpractice by defendants,but by a showing that Itbut forrttheir negligence, he would have recovered additional amounts from Northwestern Bank. Kinniburghv. Garrity (Mont. 1990), 798 P.2d 102, 105, 47 St.Rep. 1655, 1659. Weaver has utterly failed to do that. After consideration of the claimspresented above, there isnothing 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 favorabletoWeaver. Wehold that the court was correct in entering summary judgment fordefendantson this count. CountVIII. Dispositionoftheproceeds 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, correspondencebetween Weaver and thedefendants showsthatthey specifically discussed releasing the proceeds of the Stroh contract during settlement and that Weaver agreed to the settlement. The settlement included theproceeds 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 thatdefendants wrongfully failed to release to him a transcript of the Northwestern Bank trial which he had requestedaspart of discovery. He submitted to theDistrictCourt

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' possessionwasprepared at theexpense ofNorthwestern Bank fortheappeal to this Court. It was not Weaver's. Weaver could have obtained the transcript through the court reporter. Where thediscovery sought is obtainable through someother 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 isno 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. Clemansv. 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: 

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