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Labair v. Steve Carey, Esq.

Supreme Court of Montana

March 19, 2019

HOLLY LABAIR and ROBERT LABAIR, individually and on behalf of DAWSON R. LABAIR, deceased minor child, Plaintiffs,
v.
STEVE CAREY, Esq., and CAREY LAW FIRM, AND JANE DOES 1-4, Defendants. TINA MORIN, Appellant,
v.
HOLLY LABAIR, ROBERT LABAIR, and PAUL WARREN, Appellees.

          Submitted on Briefs: January 3, 2019

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 10-254 Honorable Ed McLean, Presiding Judge

          For Appellant: Tina L. Morin, Self-Represented, Butte, Montana

          For Appellees Labairs: Cory R. Gangle, Gangle Law Firm, PC, Missoula, Montana

          For Appellee Warren: Jon Moyers, Moyers Law, PC, Billings, Montana

          LAURIE MCKINNON JUSTICE

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Attorney Tina Morin (Morin) appeals from orders of the Fourth Judicial District Court, Missoula County, reopening the previously-dismissed case to permit attorney Paul Warren (Warren) to intervene and awarding Warren a percentage of Morin's contingency fee. We affirm.

         ¶3 This case is before the Court for the fourth time, and we accordingly recite the factual and procedural background only as necessary to address this appeal. See Labair v. Carey, 2012 MT 312, 367 Mont. 453, 291 P.3d 1160 (Labair I); Labair v. Carey, 2016 MT 272, 385 Mont. 233, 383 P.3d 226 (Labair II); Labair v. Carey, 2017 MT 286, 389 Mont. 366, 405 P.3d 1284 (Labair III). In 2004, Holly and Robert Labair (the Labairs) retained attorney Steve Carey (Carey) to represent them in a medical malpractice claim against their obstetrician regarding the death of their newborn son. Labair I, ¶ 4. The couple worked with Carey for years, but the District Court eventually dismissed the case with prejudice in May 2008. Labair I, ¶ 8.

         ¶4 In October 2008, Morin began representing the Labairs in a legal malpractice claim against Carey. At that time, they signed a retainer agreement entitled "Attorney-Client Fee Contract" (2008 Contract). The 2008 Contract provided that the Labairs would pay Morin "a percentage of all settlement proceeds, judgment damages, and other valuable consideration recovered." The percentage varied depending on which stage of litigation the case terminated: 33.33% if resolved by negotiated settlement before filing the complaint; 40% if resolved by negotiated settlement after filing the complaint; 50% if resolved by summary judgment, negotiated settlement during trial, or judgment obtained after trial; and an additional 1% for each appeal and each new trial. The 2008 Contract also provided, "In addition to paying legal fees . . . [the Labairs] shall reimburse [Morin] for all costs and expenses incurred ...."

         ¶5 In 2010, Morin filed a complaint on behalf of the Labairs, alleging Carey committed legal malpractice. Labair I, ¶ 9. The District Court granted summary judgment in Carey's favor and dismissed the Labairs' complaint. Labair I, ¶¶13-14. The Labairs appealed; we reversed and remanded the case for trial. Labair I, ¶¶ 40, 47. ¶6 Morin subsequently retained Warren to assist her in representing the Labairs at trial. In March 2013, the two attorneys exchanged emails detailing their agreement (2013 Email Agreement). Morin sent Warren an email entitled "Attorneys' Agreement re Fees and Costs in Labair," which read, in pertinent part:

First, this e-mail will establish that the Labairs have indicated to me that they will consent to you representing them as co-counsel with me. . . . Second, this e-mail will establish our agreement regarding how we will split the attorney fees and costs in this matter. I propose the following two scenarios: 1. My agreement with the Labairs is that I receive 40% in attorney fees of the total recovery and then all my costs. The percentage may be more at this stage of the litigation. I will check my agreement with the Labairs. If my firm continues to front the costs from here forward, in the event of a recovery, we would split the attorney fees 80% to 20% with my firm getting 80%. The percentages recognize my six years of getting this case where it is and the greater risk I am taking going forward, by fronting all of the costs. I would retain the final say on expenditures. If the case settles in the next'90 days . . . your percentage goes down to 15%. 2. If we split the fronting of costs going forward, the split would be 75% to 25% with my firm getting 75%. Finally, if the case settles in the next 90 days . . . your percentage goes down to 20% under this scenario.

         Warren responded a few days later, stating, in pertinent part:

I am willing to share some of the costs going forward. ... I also recognize your concern that this might settle within the next 90 days. If this case settles within that time my share of your 40% fee agreement or if it is . higher (50%) would be 15%. If this case does not settle within 90 ...

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