Labair v. Carey, 405 P.3d 1284

Background

Holly and Robert Labair sued attorney Steve Carey for legal malpractice after Carey failed to timely file a medical-malpractice claim for their deceased infant; initial summary judgment for Carey was reversed and remanded by this Court.
After remittitur from the first appeal, Judge John Larson was replaced by retired Judge Edward P. McLean (called to active service by the Chief Justice); McLean presided at a 2015 jury trial that returned a verdict for Carey and entered final judgment.
This Court reversed again in Labair II, remanding for a new trial limited to damages; remittitur from Labair II was filed November 21, 2016.
Chief Justice McGrath’s June 1, 2015 order called Judge McLean to active service and directed the clerk to provide counsel copies of the order; the clerk filed the order but did not mail counsel the order—parties received telephonic notice and participated in hearings before McLean.
The Labairs filed a motion to substitute Judge McLean on January 17, 2017 (57 days after remittitur), asserting they lacked required written notice; Judge McLean denied the motion as untimely. The Labairs appealed that denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 20-day substitution deadline began to run if clerk failed to serve written notice of a judge’s assumption of jurisdiction	Labair: clerk’s failure to serve written notice under § 3-1-804(7) prevented the deadline from starting; actual notice insufficient	Carey: remittitur started the 20-day clock; Labairs had actual notice so no prejudice and deadline ran	Held: deadline ran from remittitur; clerk’s failure to mail the order did not prejudice Labairs because they had actual notice; motion untimely
Whether failure to give statutorily required notice violated due process	Labair: lack of written notice denied constitutionally adequate notice/opportunity to be heard	Carey: parties had actual notice and participated, so no due process violation	Held: no due process violation—actual notice satisfied due process because interests were not adversely affected
Whether Judge McLean lost jurisdiction after appeal such that his later denial of substitution was void	Labair: final judgment was “final resolution” under the Chief Justice’s order, so McLean lost jurisdiction after appeal and replacement judge should act on remand	Carey: jurisdiction returned to district court on reversal/remand with McLean as presiding judge under the Chief Justice’s assignment	Held: McLean retained jurisdiction after remand; final judgment did not constitute “final resolution” of the litigation so his denial was valid
Whether procedural noncompliance with § 3-1-804(7) requires automatic relief (voiding judge’s actions)	Labair: noncompliance should void subsequent actions or restart substitution period	Carey: relief is only warranted if prejudice shown; procedural irregularity alone insufficient	Held: noncompliance alone does not require relief absent prejudice; denial of substitution affirmed

Key Cases Cited

Labair v. Carey, 291 P.3d 1160 (Mont. 2012) (reversing summary judgment and remanding for trial)
Labair v. Carey, 383 P.3d 226 (Mont. 2016) (reversing and remanding for new trial on damages)
Cushman v. Mont. Twentieth Judicial Dist. Court, 360 P.3d 492 (Mont. 2015) (retired judges called to active service are judges for substitution-rule purposes)
Torres v. Eleventh Judicial Dist. Court, 347 P.3d 265 (Mont. 2014) (granting relief where clerk’s failure to notify caused lack of notice and substitution motion was filed promptly after learning)
Smith v. Fourth Judicial Dist. Court, 318 P.3d 172 (Mont. 2013) (denying relief where party had actual notice and no prejudice from clerk’s failure to serve)
Zavarelli v. Might, 779 P.2d 489 (Mont. 1989) (district court regains full jurisdiction on remittitur)
Powers Mfg. Co. v. Leon Jacobs Enters., 701 P.2d 1377 (Mont. 1985) (notice of appeal transfers jurisdiction to supreme court)
Powder River Cnty. v. State, 60 P.3d 357 (Mont. 2002) (district court may still rule on ancillary matters after appeal taken)
Capital One, NA v. Guthrie, 392 P.3d 158 (Mont. 2017) (Chief Justice may confer comprehensive authority on retired judges called to active service)