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,Judgepresiding.

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, 1991Justice 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 tohave theappellantsvacate thepremises at 1530Phillips 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 respondentbreached its fiduciary duty and wrongfully canceled the contract for deed. The District Court of the SecondJudicialDistrict, SilverBow County,sittingwithout

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. Theappellants 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 tobeing the seller of theproperty, the respondentwas the escrowholder asdesignated in the pre-printed contract fordeed formprepared by the respondent. 2

### InApril 1983, therespondent claimed that the appellantswere 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

-daynotice to surrenderpossessionwas 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 thepremises and to recover attorney's feesand 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 DistrictCourt 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,

31991. 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 raisedby the appellants. Although the respondentwas 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 itsown 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,wehave considered only thebrief 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 4youwere sayingbecause of Mr. Reed wearing two hats and being the seller aswell as the escrowholder,that there is abreach of some fiduciary relationship. Iwould 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 ofproof as todefault and eviction, these actionsof the Plaintiff all evidencedabreach of Plaintiff'sfiduciary duty toDefendants since itwas acting asboth the Seller and the Escrow Agent. Thatbecause ofPlaintiff'svarious breachesof his fiduciaryduty owed theDefendants,the Plaintiffwas without authority to find the Defendants in default, forfeit the contractbetween 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 towhich the appellants alleged theywere entitled

as a result of the respondent's breach of fiduciary duty. In addition, the District Court's Judgment, entered March 11, 1991, includesnomention of the appellants' counterclaim fordamages and attorney's fees. Therefore,we remand to the District Court with 5instructions to make findings of fact and conclusions of law regarding the appellants' counterclaim, and to enter the appropriate judgment. Theappellants maintain that thisCourt 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

### OFSERVICE 

### Iherebycertifythat thefollowingorderwas sentbyUnited Statesmail,prepaid,tothe followingnamed:

John

### F.Lynch AttorneyatLaw 

### P.O. Box 2265 GreatFalls,MT 59403 CharlesReed,President ContinentalRealty,Inc. 2053HarrisonAvenue Butte,MT 59701 EDSMITH CLERK

### OFTHESUPREMECOURT