No. 83-191 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE, ex rel., CALVIN W. PENAN, SR. 

Guardian ad litem of ALANA GAYL 

PERMAN, 

Petitioner and Appellant, 

DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT, IN AND FOR THE 

COUNTY OF YELLOWSTONE, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUiqSEL OF RECORD: 

For Appellant: 

Overfelt Law Firm; Lee Overfelt argued, Billings, 

Montana 

For Respondent: 

Calton & Hamman; Frances Calton argued, Billings, 

Montana 

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Submitted: March 5, 1984 

Decided: October 31, 1984 

Filed: eel 3 1 1984 

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Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal of an order dismissing a complaint and 

imposing conditions upon the plaintiff's right to refile. We 

vacate the order of the District Court and remand the cause 

for a competency hearing to determine whether appointment of 

a guardian ad litem is necessary and whether the notice of 

dismissal was filed with plaintiff's consent. 

The following issues are dispositive: 

1. After removing Calvin Perman as guardian ad litem, 

did the District Court lack jurisdiction to dismiss the 

complaint? 

2. Did the court err in dismissing plaintiff's 

complaint by order of the Court, under Rule 41(a) (2), 

M.R.Civ.P., after Calvin Perman, the former guardian ad 

litem, filed a notice of dismissal under Rule 41 (a) (I), 

M.R.Civ.P.? 

Alana Gayl Perman is the adult daughter of Laila 

Georgean Johnson and the wife of Calvin W. Perman, Sr. On 

March 19, 1.982, Alana Gayl Perman (Gayl) , Laila Georgean 

Johnson (Gayl ' s mother) and Robert Jeffrey Prochnick (Gayl ' s 

brother) executed a trust agreement. Gayl granted to the 

trust all of her interest in the Estate of Alice D. 

Fernbaugh, Gayl's deceased grandmother. 

The trust agreement named Gayl's mother and brother as 

co-trustees, with absolute discretion to distribute income 

and principal "to or for the use and benefit of Alana Gayl 

Perman." The specified term of the trust is Gayl's lifetime, 

plus ten years. The agreement provides that, unless Gayl 

designates by will or otherwise who is to receive trust 

assets after her death, the remaining assets shall be divided 

equally between Gayl's mother and two brothers or their 
heirs. The trust agreement makes no mention of Gayl's 

husband, Calvin W. Perman, Sr. 

On June 21, 1982, Calvin W. Perman, Sr. (Calvin) 

commenced an action by filing a complaint alleging that the 

co-trustees had deceived and coerced Gayl into signing the 

trust agreement. The complaint alleged that Gayl believed 

she was signing a document to receive an inheritance from her 

grandmother's estate. The complaint also alleged: 

"That at all times herein mentioned Alana Gayl 

Perman was, and is, a developmentally disabled 

person, unable to read or write or comprehend or 

understand the contents of any legal document or 

the purpose for which it was prepared." 

The complainant asked the court to declare the trust 

agreement null and void and to order an accounting by the 

trustees. The complaint was signed by "Calvin W. Perman, 

Sr., Guardian Ad Litem of Alana Gayl Perman." 

In his petition for appointment of guardian ad litem, 

dated June 25, 1982, Calvin again alleged that Gayl was 

developmentally disabled and incapable of conducting her own 

affairs. Based on Calvin's allegations that appointment of a 

guardian ad litem was required, the District Court ordered 

the appointment of Calvin Perman as Gayl Perman's guardian ad 

litem on June 25, 1982. 

On September 7, 1982, defendants filed a motion for 

dismissal of the complaint for failure to state a claim upon 

which relief can he granted. No ruling was made on this 

motion, and no answer or cross-complaint was filed by 

defendants. 

Defendants alleged facts to the District Court 

indicating that a serious conflict of interest existed 

between Calvin and Gayl, and that as a result Calvin should 

be removed as guardian ad litem. On October 8, 1982, the 

District Court entered an order vacating Calvin's appointment 
as guardian ad litem pending a competency hearing to 

determine whether Gayl is competent to pursue this action on 

her own behalf. The District Court also ordered that 

defendants' motion to dismiss be deferred pending the 

competency hearing. Calvin subsequently petitioned this 

Court for a writ of supervisory control, which was denied. 

The District Court ordered a competency hearing to be 

held before the court on March 17, 1983. Counsel for both 

parties entered into a written stipulation that Gayl would be 

examined by psychiatrist Tom Lewis, M.D., on February 17, 

1983. The stipulation specified: "Costs of such examination 

shall be borne by Defendant Trustees herein. Such costs may 

be included as an item of costs in this action." Plaintiff's 

counsel later objected to the manner in which Dr. Lewis was 

to be paid and the examination did not take place. 

Defendants moved the District Court to enforce the 

stipulation or, in the alternative, to order a mental 

examination of Gayl. The show cause hearing on that motion 

was scheduled for February 24, 1983. On the day before the 

hearing, plaintiff's counsel filed a notice "withdrawing" the 

stipulation and a motion for immediate appointment of Calvin 

as guardian ad litem. He also moved the court for an order 

vacating the competency hearing scheduled for March 17, 1983. 

The hearing on defendants' motion to enforce compliance 

with the stipulation was postponed until March 3, 1983. On 

Ma.rch 2, the day before the show cause hearing, Calvin's 

counsel filed a notice of dismissal of the complaint without 

prejudice under Rule 41(a) (I), M.R.Civ.P. 

Thereafter, the District Court entered an order 

dismissing the cause under Rule 41(a)(2), M.R.Civ.P., subject 

to the following conditions: 
(1) Pursuant to Rule 41(d) M.R.Civ.P., plaintiff 

will be required to pay all of the costs of this 

action in the event that plaintiff refiles a 

similar action against defendants. 

" (2) The Stipulation entered into by the parties 

hereto, dated February 15, 1983, must be adhered to 

in the event that a new or similar action is filed 

by plaintiff against defendants. 

" (3) If this action or any action similar to this 

one is refiled by plaintiff in another cause, this 

proceeding must be reinstated." Order, March 16, 

1983. 

The plaintiff appeals from this order. 

After removing Calvin Perman as guardian ad litem, did 

the District Court lack jurisdiction to dismiss the 1. 

complaint? 

Appellant argues that rescission of Calvin Perman's 

appointment as guardian ad litem of Gay1 Perman divested the 

court of jurisdiction over the complaint fil-ed on her behalf. 

We disagree. 

A civil action is commenced by the filing of a complaint 

with the court. Rule 3, M.R.Civ.P. I' [Tlhe only effect of a 

party's incompetence upon maintenance of the action is the 

possible need for appointment of a guardian ad litem or entry 

of a protective order." Donnelly v. Parker (D.C.Cir. 1973), 

486 F.2d 402, 407. "Appointment of a guardian ad litem is 

not a jurisdictional requirement." Shelley v. Elfstrom 

The District Court has an affirmative duty to assure 

that the rights of a party, who is alleged to be incompetent, 

are protected. Rule 17 (c) , M. R.Civ.P. provides in pertinent 

part : 

". . . The court shall appoint a guardian ad litem 

for an . . . incompetent person not otherwise 

represented in an action or shall make such other 

order as it deems proper for the protection of 

the . . . incompetent person, or in any case where 

the court deems it expedient a guardian ad litem 
may be appointed to represent an . . . incompetent 

person, even though the . . . incompetent person 

may have a general guardian and may have appeared 

by him. I' 

Section 25-5-301 (3) , MCA, the statute under which Calvin 

Perman's initial petition for appointment was granted, 

states: 

"When a guardian ad litem is appointed by the 

court, he must be appointed as follows: 

" (3) when an . . . incompetent person is party to 

an action or proceed.ing, upon the application of a 

relative or friend of such . . . incompetent person 

or of any other party to the action or proceeding." 

Both section 25-5-301 (3) , MCA and Rule 17 (c) , M.R.Civ.P. 

require appointment of a guardian ad litem for an incompetent 

person whose rights might be abrogated by a lack of proper 

representation. Neither provides that appointment of a 

guardian ad litem makes the guardian ad litem a party to the 

lawsuit. 

The court's jurisdiction is neither enhanced nor 

diminished by the appointment of a guardian ad litem. The 

guardian ad litem appears in a representative capacity only. 

He does not become a party to the action any more than the 

incompetent person's attorney of record is a party. 

Sarracino v. Superior Court of Los Angeles County (Cal. 

1974), 529 P.2d 53, 61. Removal of a guardian ad litem does 

not divest the court of jurisdiction over the action or the 

incompetent party. 

We hold that the District Court retained jurisdiction 

over the action after removal of the guardian ad litem. 

Did the District Court err in dismissing plaintiff's 

complaint by order of the court after the former guardian ad 

litem filed a notice of dismissal? 
On October 8, 1982, the District Court entered its order 

vacating the appointment of Calvin as guardian ad litem of 

Gayl. That order effectively removed him from the office of 

guardian ad litem, after which Calvin lacked authority to act 

on Gayl's behalf. Notwithstanding that removal, Calvin filed 

a notice of dismissal without prejudice on March 2, 1983, 

which stated: 

"COMES NOW the Plaintiff, Calvin Perman, and 

through his attorney, Lee Overfeldt, dismisses the 

above-entitled matter without prejudice. This 

dismissal is filed pursuant to Rule 41, Subsection 

1, of the Montana Rules of Civil Procedure . . .." 

Rule 41(a) (I), M.R.Civ.P. provides that "an action may 

be dismissed 2 the plaintiff without order of court . . . by 

filing a notice of dismissal at any time before service by 

the adverse party of . . . a motion for summary 

judgment . . . " (emphasis added). The District Court 

reasoned that defendants' September 7, 1982 motion to dismiss 

should be treated as a motion for summary judgment because 

the court considered matters outside the pleadings, which had 

been presented to the court under Rule 12 (b) (6) , M.R.Civ.P. 

After extensive memoranda and arguments, the District 

Court treated Calvin's notice of dismissal as the equivalent 

of a motion for voluntary dismissal under Rule 41 (a) (2), 

M.R.Civ.P. The District Court then granted the motion to 

dismiss subject to the above-stated conditions. 

We hold that Calvin's notice of dismissal was completely 

ineffective. Calvin had been removed as guardian ad litem. 

He was not an individual party to the action, nor acting in a 

representative capacity as guardian ad litem. His notice of 

dismissal was totally inappropriate and ineffective. The 

action was not "dismissed by the plaintiff," as provided in 

Rule 41 (a) (1) , M.R.Civ.P. Nor was there any action at "the 
plaintiff's instance," as set forth in Rule 41(a)(2), 

M.R.Civ.P. 

The District Court was sufficiently impressed by 

defendant's allegations of conflict of interest between Gayl 

and Calvin that the court vacated Calvin's appointment and 

scheduled a competency hearing to determine whether Gayl 

could proceed on her own behalf or whether appointment of a 

new guardian ad litem was required. Plaintiff ' s counsel 

signed interrogatories stating that he had been retained as 

counsel for both Calvin and Gayl. In view of the serious 

al-1ega.tions of conflict of interest, it is not appropriate 

that plaintiff's counsel continue representing both Calvin 

a.nd Gayl in this proceeding. We also note that the proposed 

dismissal of the action took place approximately 11 months 

after the complaint was filed and after extensive pretrial 

discovery, many motions and an application to this Court for 

supervisory control. The issue of Gayl's incompetence has 

yet to be adjudicated. 

Once the issue of incompetency is raised, it is the duty 

of the court to determine whether the party is competent and 

to appoint a guardian ad litem if the party is incompetent. 

Rule 17(c), M.R.Civ.P. Absent that determination, an 

adjudication affecting the rights of the alleged incompetent 

cannot stand. See In re the Marriage of Tesch (Mont. 1982) , 

648 P.2d 293, 297, 39 St.Rep. 1318, 1322. Here conflicting 

allegations were made by Gayl's husband, her mother and 

brother. Under this circumstance, it is essential that the 

District Court protect the interests of the unrepresented, 

alleged incompetent. That protection includes the 

appointment of a guardian ad litem, if necessary. 

Nowhere on the record are Gayl's wishes regarding the 

trust agreement expressed. The psychiatrist stipulated to by 
the parties has not had the opportunity to examine Gayl. No 

competency hearing has been conducted, and the court has not 

yet determined whether Gayl is competent or incompetent. It 

was the duty of the court to determine either that Gayl was 

competent or that a guardian ad litem was required. Nothing 

was gained by the dismissal and much may have been lost if 

Gayl is, in fact, incompetent. See Shelley, 538 P.2d at 151. 

We vacate the order of dismissal and return the matter 

for further proceedings with the following instructions: 

1. The District Court shall hold a competency hearing 

to determine whether Gayl is competent to represent herself 

in this matter and thereafter appoint a guardian ad litem 

should that be found necessary. 

2. In the event that the District Court concludes that 

immediate representation is required for Gayl in connection 

with the competency hearing, the District Court shall appoint 

a guardian ad litem to act for the period of time prior to 

the entry of its order determining competency. 

We concur: 

Wed. 

Chief Justice 

V 

Justices 
Mr. Justice John (3. Sheehy, concurring and dissenting in 

part : 

I concur that the action of the District Court 

concerning the trust agreement executed by Alana Gayl Perman 

should not have been dismissed. Rather, the District Court 

should keep jurisdiction of the cause for the purpose of 

determining the correct disposition of the assets of the 

trust estate. 

The assumption of the majority opinion that there is a 

conflict of interest so that plaintiff's counsel may not 

represent Calvin and Gayl in the proceeding is unwarranted. 

There has not been a single line of testimony taken in the 

case below. Although interrogatories have been submitted 

from both sides, demands for admissions, and other efforts of 

attorneys in discovery proceedings, none of them have been 

answered, no depositions have been taken, nor any affidavit 

filed either from Calvin and Gayl, nor from the mother, Laila 

Georgean Johnson nor the brother Robert Jeffrey Procknick. 

All that the voluminous District Court file contains are 

allegations and counterallegations of attorneys. There is no 

reason for the majority to assume at this stage that an 

attorney could not properly represent both the husband and 

wife in these proceedings. 

From the pleadings, from statements in briefs of 

counsel, and from the form of interrogatories and demands for 

admissions submitted, we may glean the following 

possibilities (I emphasjze that there is no testimony or 

affidavits filed): Gayl has a basic I.Q. of 61, and a 

competency level of second grade. She signed a trust 

agreement without the knowledge of her husband of then eight 
years, in his absence, an instrument that gives to her mother 

and brother as trustees absolute discretion as to the 

expenditure of Gayl's funds, and makes them sole heirs of her 

trust estate in the event of her death. Calvin and Gayl may 

be alcoholics, and Calvin may be guilty of wife abuse. The 

mother, one of the trustees, may have been in and out of 

mental institutions. The brother resides in Sheridan, 

Wyoming, and not in Billings, Montana, where Gayl and Calvin 

live. The trustees may be using the funds of the trust 

estate for the purpose of defending the litigation involving 

the trust agreement, paying costs and attorney fees from 

Gayl's estate. 

Although this case was filed June 21, 1-982, now, 2% 

years later, the basic action has not gotten beyond the 

original motion to dismiss. We have no record of any kind to 

indicate what is occurring with respect to the assets in the 

trust estate. 

In light of that situation, I would go further than the 

majority in not dismissing the case in the District Court. I 

would remand the cause with directions to the District Court 

immediately to appoint a guardian ad litem and for the entry 

of an order requiring the trustees to file an accounting of 

the trust estate within 30 days of remand. If after a 

competency hearing, the District Court decided that the 

husband should not act as guardian ad litem because of apossible conflict of interest, I would still allow his 

participation in the action as husband and next friend for 

the purpose of assuring an adversarial determination of the 

basic issue, whether the trust instrument is legally proper