NO. 91-179 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CONTINENTAL REALTY, INC., a Montana corporation, 

Plaintiff and Respondent, 

-vsARTHUR STANLEY GERRY and wife, HARRIET GERRY, 

Defendants and Appellants. 

APPEAL FROM: District Court of 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John F. Lynch, Law Offices of John F. Lynch, Great 

Falls, Montana. 

For Respondent: 

Charles Reed, President of Continental Realty, 

Appearing Pro Se, Butte, Montana. 

Filed: 

Submitted on Briefs: September 24, 1991 

Decided: December 19, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The respondent, Continental Realty, Inc., brought an action 

against the appellants, Arthur Stanley Gerry and Harriet Gerry, 

seeking to have the appellants vacate the premises at 1530 Phillips 

Avenue in Butte, Montana and to recover attorney's fees and costs. 

The basis for the action was that the appellants were in default 

under a contract for deed between the parties. The appellants 

counterclaimed for damages for emotional distress and attorney's 

fees on the ground that the respondent breached its fiduciary duty 

and wrongfully canceled the contract for deed. The District Court 

of the Second Judicial District, Silver Bow County, sitting without 

a jury, ruled that the respondent did not sustain its burden of 

proof that the appellants were in default and reinstated the 

contract for deed between the parties. No ruling was made on the 

appellants' counterclaim. The appellants appeal. We remand to the 

District Court for entry of appropriate findings of fact and 

conclusions of law and judgment on the appellants' counterclaim. 

The sole issue we address on appeal is whether the District 

Court erred in failing to rule on the appellants' counterclaim. 

The respondent and the appellants entered into a contract for 

deed on August 4, 1975, whereby the respondent agreed to sell 

residential property to the appellants for monthly payments of 

$153, together with $42 per month to be held in reserve for the 

payment of taxes and insurance. In addition to being the seller of 

the property, the respondent was the escrow holder as designated in 

the pre-printed contract for deed form prepared by the respondent. 

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In April 1983, the respondent claimed that the appellants were 

in default under the contract for deed in the amount of $2,490.56; 

it served a notice of cancellation of the contract upon the 

appellants. After thirty days the respondent canceled the 

contract. A three-day notice to surrender possession was served on 

the appellants on August 10, 1983. The record indicates that the 

appellants continued to occupy the premises and tendered monthly 

payments to the respondent in the amount of $200 through the time 

of trial. The respondent designated these payments as rental 

payments instead of payments on the contract for deed. 

On November 8, 1983, the respondent filed the present action 

against the appellants in which it sought to have the appellants 

vacate the premises and to recover attorney's fees and costs on the 

ground that the appellants were in default under the contract for 

deed. The appellants counterclaimed for emotional distress and 

attorney's fees on the ground that the respondent breached its 

fiduciary duty and wrongfully canceled the contract for deed. A 

nonjury trial on the matter was eventually held in the District 

Court on December 4, 1990. On January 16, 1991, the District Court 

entered its findings of fact and conclusions of law in which the 

court concluded that the respondent did not sustain its burden of 

proof that the appellants were in default. The court reinstated 

the contract for deed between the parties at a balance owing of 

$16,000. No specific findings of fact or conclusions of law were 

made on the appellants' counterclaim for damages for emotional 

distress and attorney's fees. Judgment was entered on March 11, 

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1991. This appeal followed. 

Did the District Court err in failing to rule on the 

appellants' counterclaim? 

Initially, we note an issue of importance which has not been 

raised by the appellants. Although the respondent was represented 

at trial by counsel, it appears on appeal solely through Charles 

Reed in his capacity as president of the corporation. A 

corporation is a separate legal entity and cannot appear on its own 

behalf through an agent other than an attorney. Weaver v. Law Firm 

of Graybill, et al. (1990), 246 Mont. 175, 803 P.2d 1089; 

Annotation, Propriety and Effect of Corporation's Appearance Pro 

Se, Through Agent Who Is Not Attorney, 19 A.L.R.3d 1073 (1968). 

Therefore, Mr. Reed cannot appear on behalf of the respondent 

corporation. Accordingly, we have considered only the brief of the 

appellants and the record before us for purposes of this appeal. 

Rule 52(a), M.R.Civ.P., requires the District Court, in a 

nonjury trial, to find the facts specially and state separately its 

conclusions of law. The purpose of this requirement is threefold 

in nonjury cases: (1) as an aid in the trial judge's process of 

adjudication; (2) for purpose of res judicata and estoppel by 

judgment; and (3) as an aid to the appellate court on review. 

United Methodist Church v. D.A. Davidson, Inc. (1987), 228 Mont. 

288, 295, 741 P.2d 794, 799. 

At the close of the evidence at trial, the District Court 

stated on the record: 

You've got a counterclaim, Mr. Lynch, you think is 

appropriate under the circumstances, particularly since 

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you were saying because of Mr. Reed wearing two hats and 

being the seller as well as the escrow holder, that there 

is a breach of some fiduciary relationship. I would like 

to see some law, if there is any on that point. You 

should, Mr. Richardson, anticipate that and brief the 

same point. 

After the matter was briefed, the District Court made the 

following pertinent findings of fact and conclusions of law on 

January 16, 1991: 

FINDINGS OF FACT 

17. Not only did Plaintiff not sustain its burden 

of proof as to default and eviction, these actions of the 

Plaintiff all evidenced a breach of Plaintiff's fiduciary 

duty to Defendants since it was acting as both the Seller 

and the Escrow Agent. 

That because of Plaintiff's various breaches of 

his fiduciary duty owed the Defendants, the Plaintiff was 

without authority to find the Defendants in default, 

forfeit the contract between the parties, and evict the 

Defendants. 

18. 

CONCLUSIONS OF LAW 

3. That Plaintiff violated its fiduciary 

relationship to the Defendants because it was acting as 

both the Seller and the Escrow Holder. 

Thus, the District Court apparently agreed with the 

appellants' position that the respondent breached its fiduciary 

duty. However, the court made no findings of fact or conclusions 

of law as required by Rule 52(a), M.R.Civ.P., regarding the 

appellants' counterclaim for damages for emotional distress and 

attorney's fees to which the appellants alleged they were entitled 

as a result of the respondent's breach of fiduciary duty. In 

addition, the District Court's Judgment, entered March 11, 1991, 

includes no mention of the appellants' counterclaim for damages and 

attorney's fees. Therefore, we remand to the District Court with 

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instructions to make findings of fact and conclusions of law 

regarding the appellants' counterclaim, and to enter the 

appropriate judgment. 

The appellants maintain that this Court should direct entry of 

judgment in their favor on the counterclaim since the evidence 

concerning damages as a result of the respondent's breach of 

fiduciary duty is uncontested. Rule 52(a), M.R.Civ.P., provides 

that "[dlue regard shall be given to the opportunity of the trial 

court to judge of the credibility of the witnesses." Here, 

deference to the trial court's superior position to observe the 

witnesses and assess their credibility requires that the trial 

court enter appropriate findings. This Court will not review the 

record for the purpose of making its own findings. 

Remanded to the District Court for entry of appropriate 

findings of fact, conclusions of law and judgment on the 

appellants' counterclaim. 

We concur: 
December 19, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

John F. Lynch 

Attorney at Law 

P.O. Box 2265 

Great Falls, MT 59403 

Charles Reed, President 

Continental Realty, Inc. 

2053 Harrison Avenue 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT