Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Montana Supreme Court recently.
Stewart v. Rice, 2013 MT 55
The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on Old Highway 97 on the Crow Reservation in Big Horn County. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.
At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.
On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”
On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.
A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.
However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.
The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.