Transway Corporation v. First Citiz

No. 91-083
IN THE SUPREME COURT OF THE STATE OF MONTANA
TRANSWAY CORPORATION, a Montana Corporation; RANDALL A. LAMPHERE
and SUSAN M. LAMPHERE, husband and wife; ALICE L. FITE, aka ALICE
L. GRILLEY,
Plaintiffs and Appellants,
-vs-
FIRST CITZENS BANK OF POISON, JUN 1 8 4997
Defendant and Respondent.
CLERK OF SUPRElVlE COURT
STATE OF M m
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randall A. Lamphere, Pro Se; Ronan, Montana.
For Respondent:
Keith Strong; Dorsey & Whitney, Great Falls,
Montana.
Submitted on briefs: May 10, 1991
Decided: June 18, 1991
Filed:
Clerk "
Justice 3 . C. McDonough delivered the Opinion of the Court.
Plaintiffs Transway Corporation (Transway), Randall and Susan
Lamphere, and Alice Fite appeal the order of the Twentieth Judicial
District Court of the State of Montana, Lake County, granting
summary judgment to the defendant First Citizens Bank of Polson on
plaintiffs' claims of breach of contract and fiduciary duties and
bad faith.
Randall Lamphere appeared pro se on behalf of himself,
Transway, and the other individuals. While shareholders and
directors have a right to "take actionat the corporation's behalf
on
under 3 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. Weaver v. Law Firm of Graybill,
Ostrem, Warner & Crotty (Mont. 1990), 803 P.2d 1089, 1091, 47
St.Rep. 2316, 2317; Annotation, Propriety and Effect of
CorporationasAppearance Pro Se, Through Agent Who Is Not Attorney,
19 A. L.R.3d 1073 (1968) . Mr. Lamphere cannot represent Transway
pro se. Nor can he appear on behalf of his wife Susan and Alice
Fite without being guilty of contempt of court. Section 37-61-
210, MCA; Weaver, 803 P.2d at 1091. Montana law is also clear that
the stockholders and guarantors of a corporation do not have the
right to pursue an action on their own behalf when the cause of
action accrues to the corporation. Bottrell v. American Bank
(19891, 237 Mont. 1, 26-7, 773 P.2d 694, 709-10; Moats Trucking
Co., Inc. v. Gallatin Dairies, Inc. (1988), 231 Mont. 474, 477, 753
P.2d 883, 885. Accordingly, the individuals have no claims against
the bank and the order of the District Court with respect to them
is affirmed. Since Mr. Lamphere is not an attorney and cannot
represent the corporation pro se, the District Court's order with
respect to Transway is likewise affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
operating Rules, this decision shall not be cited as precedent and
shall be published by its filing as a public document with the
Clerk of this Court and by a report of its result to West
Publishing Company.
Let remittitur issue forthwith.
We Concur:
,
June 18, 1991
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Randall A. Lamphere
5313 Whispering Pines Dr.
Ronan, MT 59864
Keith Strong
Dorsey & Whitney
P.O. Box 1566
Great Falls, MT 59403
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA