Continental Realty, Inc. v. Gerry
| Decision Date | 19 December 1991 |
| Docket Number | No. 91-179,91-179 |
| Citation | 251 Mont. 150,822 P.2d 1083 |
| Parties | CONTINENTAL REALTY, INC., a Montana corporation, Plaintiff and Respondent, v. Arthur Stanley GERRY and wife, Harriet Gerry, Defendants and Appellants. |
| Court | Montana Supreme Court |
John F. Lynch, Law Offices of John F. Lynch, Great Falls, for defendants and appellants.
Charles Reed, pro se.
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.
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, 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...
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