Stewart v. Rice, DA 11–0542.

• Decision Date: 05 March 2013
• Docket Number: No. DA 11–0542.,DA 11–0542.
• Citation: 369 Mont. 203,296 P.3d 1174
• Parties: Vianna STEWART, Plaintiff and Appellee, v. Clark E. RICE and Edythe Rice, Defendants and Appellants. Juanita Stands, Cross–Claim Plaintiff and Appellee, v. Clark E. Rice and Edythe Rice, Cross–Claim Defendants and Appellants, Edythe Rice, Cross–Claim Plaintiff and Appellant, v. Juanita Stands, Cross–Claim Defendant and Appellee.
• Court: Montana Supreme Court

369 Mont. 203

296 P.3d 1174

Vianna STEWART, Plaintiff and Appellee,

v.Clark E. RICE and Edythe Rice, Defendants and Appellants.

Juanita Stands, Cross–Claim Plaintiff and Appellee,

v.Clark E. Rice and Edythe Rice, Cross–Claim Defendants and Appellants,Edythe Rice, Cross–Claim Plaintiff and Appellant,

v.Juanita Stands, Cross–Claim Defendant and Appellee.

No. DA 11–0542.

Supreme Court of Montana.

Submitted on Briefs Dec. 12, 2012.

Decided March 5, 2013.

For Appellants: Joseph M. Raffiani; Raffiani Law Firm, P.C.; Billings, Montana (for Edythe Rice), Clark E. Rice, self-represented; Lodge Grass, Montana.

For Appellees: Kelly J. Varnes; Hendrickson Law Firm; Billings, Montana (for Vianna Sewart), Elizabeth Honaker; Honaker Law Firm; Billings, Montana (for Juanita Stands).

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Clark E. Rice and his mother, Edythe Rice, appeal from the Twenty–Second Judicial District Court's judgment holding Clark and Edythe jointly and severally liable for injuries sustained by Juanita Stands and Vianna Stewart during a vehicular collision.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether Clark is entitled to a new trial and a new judge based on erroneous evidentiary rulings, biases of witnesses, the failure of some witnesses to attend trial, or the court's failure to appoint trial counsel.

¶ 4 2. Whether the District Court committed reversible error by proceeding to trial without addressing Edythe's mental competency or ensuring the parties met statutory notice requirements, and whether the trial violated Edythe's right to due process.

¶ 5 We affirm the District Court's judgment against Clark. We reverse the District Court's judgment as to Edythe and remand the case to the District Court for an evaluation of Edythe's need for a conservator and a new trial limited to the question of her vicarious liability.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 6 Edythe Rice owns and resides on a small cattle ranch in Big Horn County, Montana. Edythe is in her late eighties and her son, Clark Rice, assists her in performing ranch duties. On January 20, 2006, Clark, Juanita Stands and Vianna Stewart were involved in a vehicular collision on Old Highway 87 on the Crow Reservation in Big Horn County. It was a cloudy evening and the sun had set at approximately 4:59 p.m. Some time between 5:00 p.m. and 5:30 p.m., in “advanced twilight,” Clark turned a tractor onto Old Highway 87 from an intersecting dirt road. He could see cars approaching from a distance on the highway. As Clark pulled onto the highway and began travelling northbound, the tractor's left side extended into the highway's northbound lane. The tractor's lights were not illuminated. Juanita Stands, also driving northbound, approached at high speed and struck the tractor's left rear tire. The impact caused Juanita's vehicle to spin into the neighboring lane, where it collided with Vianna Stewart's southbound vehicle. Juanita and Vianna sustained injuries from the accident. The tractor and both automobiles were total losses.

¶ 7 Beginning in December 2006, the parties spent nearly five years in litigation before the District Court to decide liability for the accident-related damages. Vianna filed an initial complaint alleging negligence against Clark and Juanita on December 1, 2006. Juanita filed a cross-claim against Clark, who filed a counter cross-claim against Juanita. Vianna later stipulated to dismissing the claims against Juanita, and amended her complaint to include Edythe as a defendant under the doctrines of respondeat superior and negligent entrustment. She alleged that Edythe owned the ranch and that Clark was operating the tractor on Edythe's behalf at the time of the accident. On September 8, 2009, Edythe filed a pro se answer denying that Clark was acting as her employee at the time of the accident. On December 11, 2009, through her retained counsel, Robert Stephens, Edythe filed an amended answer denying vicarious liability and negligent entrustment and cross-claimed against Juanita. On February 2, 2010, Juanita amended her cross-claim to include Edythe as a defendant. The case was set for a December 15, 2009, jury trial, but the trial date was continued as the parties filed motions to dismiss and motions for summary judgment.

¶ 8 By 2011, Clark and Edythe could no longer fulfill their obligations under the fee contracts with their attorneys. On January 7, 2011, Clark's counsel, Paula Saye–Dooper, filed a motion to withdraw from representation based on Clark's inability to pay the legal fees. Clark consented to his counsel's withdrawal. On January 10, 2011, Vianna served “Rule 10 notice” ¹ upon Clark requiring him to appoint new counsel or proceed pro se. On January 12, 2011, the District Court granted Saye–Dooper's motion to withdraw from representation.

¶ 9 On January 21, 2011, Edythe's attorney, Robert Stephens, filed a Motion to Withdraw and Motion to Continue. He stated that his role in the lawsuit was intended to be “ancillary to lea[d] counsel, Paula Saye–Dooper,” that he no longer had access to the trial preparation materials now in Clark's possession, that Edythe could no longer pay her fees, and that Edythe had become incompetent. His motion and supporting affidavit explained that “Edythe Rice is no longer competent, in counsel's opinion, to understand the nature of the proceedings or to assist in her own defense.” Having spoken with Edythe's physician, who “found mild cognitive impairment primar[ily] impacting recent memory and ability to recall details,” Stephens expressed concern that Edythe's ability to testify as a witness would be significantly impaired. He stated in the affidavit that he had also spoken with Clark, who agreed that his mother “no longer knows[ ] where she is, no longer has an understanding of the immediate circumstances, has no memory and is otherwise non compos mentis.” He requested that the trial, now scheduled for February 2, 2011, be continued and 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[.]”

¶ 10 On February 4, 2011, Stephens filed a motion to allow Edythe to testify by deposition. The motion represented that, based on the medical opinion of Edythe's doctor, Edythe's mental condition would cause her to be “ ‘unavailable’ within the meaning of the Montana Rules of Civil Procedure for purposes of allowing her deposition testimony,” and that Edythe “may not be a competent witness based upon her mental impairment[.]”

¶ 11 On May 6, 2011, the District Court granted the motion to allow Edythe to testify by deposition and, on May 18, 2011, it granted Robert Stephens's motion to withdraw from representation. The court did not address the question of Edythe's competency or Stephens's suggestion for appointment of a conservator. In February 2011, Clark filed a consent to waiver of a jury trial.

¶ 12 The District Court conducted a bench trial on July 7, 2011, in which Juanita and Vianna were represented by counsel and Clark and Edythe appeared pro se. Edythe was physically present but did not present any evidence or participate in the trial.

¶ 13 In its September 7, 2011 order, the District Court concluded that Clark was negligent per se for violating three traffic statutes: (1) § 61–8–343, MCA, by failing to yield to oncoming traffic when he entered the highway; (2) § 61–9–201, MCA, by failing to illuminate the lights on his tractor within one-half an hour after sunset; and (3) § 61–9–415(1), MCA, by failing to properly display an emblem while operating on a state highway a slow-moving vehicle normally used at speeds less than twenty-five miles per hour. The court determined that each statutory violation was an actual and proximate cause of the resulting collisions. The court further determined that Edythe was vicariously liable for the injuries because she was the principal of the ranch, Clark was her agent with regard to ranch business, and “Clark was acting within the scope of his duties at the time of the accident.”

¶ 14 Considering the atmospheric conditions at the time of the accident, the court also concluded that “Juanita should have anticipated the presence of Clark's tractor in enough time to lessen the severity of the impact,” and that her comparative negligence was responsible for twenty percent of her injuries. The court's judgment stated that Clark and Edythe were jointly and severally liable for eighty percent of Juanita's claimed damages, amounting to $582,516, one hundred percent of Vianna's claimed damages, amounting to $48,501.98, and for the cost of the action to both Juanita and Vianna. Clark, proceeding pro se, and Edythe, through appellate counsel, appealed to this Court.

STANDARD OF REVIEW

¶ 15 We review the district court's factual findings for clear error and its legal conclusions for correctness. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. We review the district court's evidentiary rulings for an abuse of discretion. McEwen v. MCR, LLC, 2012 MT 319, ¶ 16, 368 Mont. 38, 291 P.3d 1253.

¶ 16 We generally do not review issues raised for the first time on appeal. Brookins v. Mote, 2012 MT 283, ¶ 24, 367 Mont. 193, 292 P.3d 347. We may review “a claimed error not previously raised in the district court which affects fundamental constitutional rights where failing to review it may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” Paulson v. Flathead Conserv. Dist., 2004 MT 136, ¶ 40, 321 Mont. 364, 91 P.3d 569. This Court exercises plenary review of constitutional issues, “such as an alleged violation of the right to due process.” In re Marriage of Cini, 2011 MT 295, ¶ 15, 363 Mont. 1, 266 P.3d 1257.

DISCUSSION

¶ 17 1. Whether Clark is entitled to a...