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Labair v. Carey

Supreme Court of Montana

November 21, 2017

HOLLY LABAIR and ROBERT LABAIR, Individually and on behalf of DAWSON R. LABAIR, deceased minor child, Plaintiffs and Appellants,
v.
STEVE CAREY, Esq. and CAREY LAW FIRM, and JANE DOES 1-4, Defendants and Appellees.

          Submitted on Briefs: September 20, 2017

         APPEAL 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

          For Appellant: Tina L. Morin, Morin Law Firm, PLLC, Butte, Montana

          For Appellees: Mikel L. Moore, Katherine A. Matic, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana

          OPINION

          BETH BAKER JUSTICE

         ¶1 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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 ...


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