HOLLY LABAIR and ROBERT LABAIR, Individually and on behalf of DAWSON R. LABAIR, deceased minor child, Plaintiffs and Appellants,
STEVE CAREY, Esq. and CAREY LAW FIRM, and JANE DOES 1-4, Defendants and Appellees.
Submitted on Briefs: September 20, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV 10-0254 Honorable
Edward P. McLean, Presiding Judge
Appellant: Tina L. Morin, Morin Law Firm, PLLC, Butte,
Appellees: Mikel L. Moore, Katherine A. Matic, Moore,
Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana
Holly and Robert Labair sued Steve Carey and the Carey Law
Firm (collectively Carey) for legal malpractice. Following
this Court's reversal and remand of a summary judgment
order, Judge Edward P. McLean assumed jurisdiction in the
case. Judge McLean retired after the trial, and Chief Justice
Mike McGrath issued an order calling him to active service to
preside over the case. Following Judge McLean's entry of
final judgment, the Labairs appealed. This Court reversed and
remanded for a new trial. Approximately two months after
remittitur issued, the Labairs moved to substitute Judge
McLean. Judge McLean denied the Labairs' motion as
untimely. The Labairs appeal. We affirm. We consider the
Labairs' arguments that:
1. The time never started running on their deadline for
substitution because the Clerk of District Court did not give
statutorily-required notice of Judge McLean's assumption
of jurisdiction; and
2. Judge McLean lost jurisdiction after appeal from the final
judgment, and the case reverted to his replacement once the
appeal was decided.
AND FACTUAL BACKGROUND
The case is before this Court for the third time on appeal.
We detailed the factual background in the previous two
appeals, Labair v. Carey, 2012 MT 312, 367 Mont.
453, 291 P.3d 1160 (Labair I), and Labair v.
Carey, 2016 MT 272, 385 Mont. 233, 383 P.3d 226
(Labair II). We restate here only the procedural
facts relevant to this appeal.
The Labairs hired Carey to pursue a potential medical
malpractice claim against their obstetrician, Dr. Thomas
Baumgartner, after the death of their newborn son. Carey
failed to file the medical malpractice claim before the
statute of limitations expired. The Labairs then filed a
legal malpractice claim against Carey.
The District Court, Judge John Larson presiding, granted
summary judgment to Carey in November 2011. The Labairs
appealed. We reversed in Labair I and remanded for
trial. Labair I, ¶ 40.
After remittitur issued in Labair I, the Labairs
timely filed a motion for substitution of district court
judge under § 3-1-804(12), MCA. Judge Larson called in
Judge McLean, who accepted jurisdiction. Judge McLean
presided over a jury trial in March 2015. The jury entered a
special verdict in favor of Carey. Judge McLean retired
effective April 30, 2015, and Judge Leslie Halligan assumed
jurisdiction over the case.
On June 1, 2015, Chief Justice McGrath entered an Order
calling Judge McLean back into active service to assume
judicial authority of this case and several others. The Order
authorized Judge McLean "to proceed with any and all
necessary hearings, opinions and orders, including final
resolution of said matters." It stated further: "A
copy of this Order shall be filed with the District Court
Clerk of Missoula County with a request that copies be sent
to counsel of record." The ...