HOLLY LABAIR and ROBERT LABAIR, individually and on behalf of DAWSON R. LABAIR, deceased minor child, Plaintiffs,
STEVE CAREY, Esq., and CAREY LAW FIRM, AND JANE DOES 1-4, Defendants. TINA MORIN, Appellant,
HOLLY LABAIR, ROBERT LABAIR, and PAUL WARREN, Appellees.
Submitted on Briefs: January 3, 2019
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
Appellant: Tina L. Morin, Self-Represented, Butte, Montana
Appellees Labairs: Cory R. Gangle, Gangle Law Firm, PC,
Appellee Warren: Jon Moyers, Moyers Law, PC, Billings,
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
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.
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.
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 ...."
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
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 ...