I am currently assisting a local attorney in seeking relief from a judgment, pursuant to Rule 60(b)(1), SCRCP, based on the claim that the client was suffering from such a significant mental illness at the time he entered what he alleges was an unfair agreement that he had excusable neglect in entering this agreement. At issue: how “crazy” does one have to be before one can vacate an agreement due to one’s mental illness?
In doing the research it is clear that, under South Carolina law, merely being treated in the past for depression is insufficient to meet the “excusable neglect” standard. Gainey v. Gainey, 382 S.C. 414, 675 S.E.2d 792 (Ct. App. 2009). Review of the law from other states similarly indicates that a low level of mental illness or having some issues with substance abuse is not sufficient to vacate a past judgment based on a claim of excusable neglect. However there is little case law showing how much mental illness is needed to meet this standard.
Today’s Court of Appeals opinion in Rouvet v. Rouvet, 388 S.C. 301, 696 S.E.2d 204 (Ct. App 2010), provides some guidance on this issue. Rouvet reversed a family court determination that Wife was not entitled to vacate an unappealed supplemental order that the family court had issued without a hearing. There were two bases for this determination.
The first is that Wife’s attorney was placed on an interim suspension and then on an indefinite suspension between the time of the hearing and the time the court issued the supplemental order. Generally “the neglect of the attorney is the neglect of the client, and . . . ‘no mistake, inadvertence, or neglect attributable to the attorney can be successfully used as a ground for relief, unless it would have been excusable if attributable to the client.’” Stearns Bank Nat’l Ass’n v. Glenwood Falls, LP, 373 S.C. 331, 342, 644 S.E.2d 793, 798 (Ct. App. 2007) (quoting Simon v. Flowers, 231 S.C. 545, 551, 99 S.E.2d 391, 394 (1957)). However, the South Carolina appellate courts have carved out an exception to this rule when the attorney is suspended or disbarred from the practice of law because such suspension or disbarment leaves the client effectively pro se. See Tobias v. Rice, 386 S.C. 306, 312, 688 S.E.2d 552, 554-55 (2010) (Pleicones, J., concurring) (noting that from the moment a litigant’s attorney is suspended from the practice of law, that litigant acts pro se). Relying upon Tobias the Court of Appeals in Rouvet found that there was excusable neglect in Wife’s failure to object to Husband’s proposed supplemental order because she was unwittingly rendered pro se by her attorney’s suspension.
The Court of Appeals further found excusable neglect based upon Wife’s lack of mental competency. It cited S.C. Dep’t of Soc. Servs. v. McDow, 276 S.C. 509, 511, 280 S.E.2d 208, 209 (1981), “[w]here a court adjudicates the rights of a person who is not mentally competent without appointing a guardian ad litem, any judgment rendered by the court adverse to the person who is not competent is defective.” In McDow, the supreme court remanded for a determination of whether McDow was sufficiently competent to proceed without the appointment of a guardian ad litem, after raising the issue of competency ex mero motu [of the court’s own accord] based on evidence in the record on appeal. Id.
Here one medical doctor had evaluated Wife and found she was not capable of assisting counsel in her defense, noting in her opinion it was unlikely that Wife could be restored to competency. Another physician found Wife’s disruptive psychiatric symptomatology and neurocognitive impairments rendered her unable to manage her property and affairs effectively, such that she was in need of protection.
The Court of Appeals noted:
Although these psychiatric evaluations were not presented at the time the Supplemental Order was entered, Wife at this time was incompetent to manage her affairs and her attorney was incapable of managing her affairs due to his suspension. Because Wife’s attorney had been suspended, and because Wife was not competent to represent herself, the family court abused its discretion by relying solely on the failure to demonstrate fraud, and thus erred in not excusing Wife’s failure to act when this information was presented at the Rule 60 hearing.
If Gainey indicates that mere past treatment for mental illness is insufficient to meet the criteria of excusable neglect to vacate a judgment, Rouvet shows that if a party completely lacks mental competence it is an abuse of discretion to deny that party relief from a judgment when that party has not been appointed a guardian. Left unanswered is where on the continuum between mere mental health treatment and a complete lack of competency the line for relief based on excusable neglect is to be drawn.