In re Estate of C.K.O.
| Decision Date | 20 March 2013 |
| Docket Number | No. DA 12–0334.,DA 12–0334. |
| Citation | 369 Mont. 297,297 P.3d 1217 |
| Parties | In the ESTATE OF C.K.O., a Minor Child. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Julio K. Morales, Laura A. Perkovic, Matthew S. Sonnichsen, Morales Law Offices, P.C., Missoula, Montana.
For Appellee: Judah M. Gersh, Michael A. Viscomi, Viscomi & Gersh, PLLP, Whitefish, Montana.
¶ 1 C.K.O.'s parents, Ann–Marie and Stanley, appeal an order of the District Court for the Twentieth Judicial District, Lake County, denying their motion to disqualify counsel in a personal injury matter. We affirm.
¶ 2 Ann–Marie and Stanley raise three issues on appeal which we have restated as follows:
¶ 3 1. Whether the custodial parents of a minor child have the right to demand that a law firm of the parents' choosing represent the claims of the child over the opposition of the guardian ad litem and conservator.
¶ 4 2. Whether §§ 37–61–403 and 72–5–427, MCA, are unconstitutional as applied in this case.
¶ 5 3. Whether § 37–61–403, MCA, conflicts with the Montana Rules of Professional Conduct.
¶ 6 In July 2007, Ann–Marie and her unborn child, C.K.O., sustained serious injuries in an automobile collision in Lake County, Montana. C.K.O. was delivered that same day by emergency cesarean section. Soon after the accident, Ann–Marie and her husband, Stanley, hired several attorneys, including Greg Ingraham, to represent both Ann–Marie and C.K.O. in their claims for damages resulting from the accident.
¶ 7 On November 9, 2007, Ann–Marie and Stanley, dissatisfied with the services of their previous attorneys, executed a contingent fee agreement with the law firm of Viscomi & Gersh (Viscomi) to represent both Ann–Marie and C.K.O. in their claims for damages resulting from the accident. On December 11, 2007, Viscomi filed a Petition for Appointment of Guardian Ad Litem and Conservator for C.K.O. with the Lake County District Court. The petition explained that a significant settlement was expected as a result of the serious injuries C.K.O. suffered in the accident, and that a guardian ad litem (GAL) and conservator were necessary to protect and promote C.K.O.'s interests. The petition requested the appointment of Matthew O'Neill to act as GAL and conservator for C.K.O. The petition was signed by Ann–Marie and Stanley as C.K.O.'s natural parents.
¶ 8 Ann–Marie's case settled in October 2009. A lawsuit for C.K.O. has not yet been filed because it is too early for C.K.O.'s doctors to provide an opinion on her medical prognosis that would be sufficient for litigation or settlement purposes.
¶ 9 In November 2011, Ann–Marie and Stanley retained Morales Law Office (Morales) to investigate and pursue legal action against Ingraham and an individual named Edward Engel. Ingraham and Engel had made personal loans to Ann–Marie and Stanley that allegedly were subject to high interest rates and fees. In 2009, Ingraham and Engel presented invoices to Viscomi for payment of these loans. At Ann–Marie's request, Viscomi paid the loans out of her settlement funds. In November 2011, Morales filed a complaint for usury against Ingraham and Engel pertaining to these loans.
¶ 10 On December 7, 2011, Morales sent a letter to Viscomi advising them that, henceforth, Morales would be representing C.K.O. The letter requested C.K.O.'s file and a statement for services performed so that payment for C.K.O.'s “former” attorneys' work would be honored on a quantum meruit basis.
¶ 11 Viscomi responded by letter dated January 6, 2012, refusing to withdraw as counsel and stating that O'Neill, C.K.O.'s GAL and conservator, did not believe it was in C.K.O.'s best interests to change attorneys. Morales sent a letter in reply stating that it was the prerogative of C.K.O.'s parents to choose C.K.O.'s counsel. The letter explained that the reason Ann–Marie and Stanley wanted to change counsel was because of their “disappointment and discomfort” over the loans Viscomi paid out of Ann–Marie's settlement funds. The letter again requested all original file materials for C.K.O.
¶ 12 On January 27, 2012, Morales filed a Notice of Substitution of Counsel with the District Court. A few days later, Viscomi sent a letter to Morales stating that, pursuant to § 75–5–427, MCA, O'Neill had the authority to make decisions as to C.K.O.'s counsel, and that, pursuant to § 37–61–403, MCA, the Notice of Substitution of Counsel was void since it was filed without Viscomi's consent or a court order. Shortly thereafter, O'Neill filed a report with the District Court stating that it was not in C.K.O.'s best interests to change legal counsel at this time. Morales then filed a Motion to Disqualify Counsel challenging O'Neill's authority and asserting that natural parents retain the right to choose which law firm should represent their minor children, regardless of the parents' prior consent to the appointment of a GAL and conservator.
¶ 13 The parties briefed their positions, and on May 1, 2012, the District Court issued an Order Denying the Motion to Disqualify Counsel. In its order, the court stated that Morales had no authority to sign any documents on behalf of C.K.O. because Morales failed to comply with § 37–61–403, MCA, regarding substitution of counsel. The court explained that § 37–61–403, MCA, provides two means by which a change of attorney may be made: (1) upon the consent of both the attorney of record and the client, or (2) upon an order of the court after an application made by either the attorney of record or the client, and after notice from one to the other. The court stated that Morales' motion failed under subsection (1) of the statute “because it does not contain the consent of both the attorney [Viscomi] and the client, Matthew O'Neill, Conservator, or of the parents of said minor.” The court also stated that the motion failed under subsection (2) of the statute “because no change of attorney was made upon order of the Court and no application was made by either the attorney of record or the client.”
¶ 14 Morales subsequently filed a Motion to Reconsider asking the District Court to clarify its order regarding who was considered the client in this case, C.K.O.'s parents or C.K.O.'s GAL and conservator. The motion noted the significant constitutional rights of Ann–Marie and Stanley as C.K.O.'s natural parents. The court denied the motion pointing out that “the Montana Rules of Civil Procedure do not contain any authority for a ‘Motion to Reconsider.’ ” Ann–Marie and Stanley appealed.
¶ 15 We review a district court's denial of a motion to disqualify counsel for an abuse of discretion. Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15, ¶ 13, 363 Mont. 366, 272 P.3d 635 (citing Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002).
¶ 16 In addition, our review of constitutional questions is plenary. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 19, 367 Mont. 401, 291 P.3d 1120 (citing Walters v. Flathead Concrete Products, Inc., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913). The constitutionality of a statute is a question of law, and we review a district court's legal conclusions for correctness. Alexander, ¶ 19.
¶ 17 Whether the custodial parents of a minor child have the right to demand that a law firm of the parents' choosing represent the claims of the child over the opposition of the GAL and conservator.
¶ 18 Ann–Marie and Stanley argue that the District Court erroneously interjected itself into their private affairs thereby hindering their ability to make decisions concerning their child's best interests. Ann–Marie and Stanley further argue that they have a fundamental right to control and direct litigation on behalf of their minor child, and that the GAL and conservator has no right to usurp their parental authority to discharge counsel for their minor child.
¶ 19 Viscomi argues on the other hand that Ann–Marie and Stanley do not have a fundamental right to unilaterally choose which law firm should represent their child after they voluntarily consented to the appointment of a GAL and conservator for that child. Instead, once Anne–Marie and Stanley consented to the appointment of the GAL and conservator, they divested themselves of the right to decide what is in their child's best interests regarding legal representation in the child's personal injury claim.
¶ 20 The United States Supreme Court has recognized that the interest of parents in the care, custody, and control of their children is a well-established fundamental liberty interest under the Fourteenth Amendment's Due Process Clause. Snyder v. Spaulding, 2010 MT 151, ¶ 12, 357 Mont. 34, 235 P.3d 578 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)). Similarly, this Court has observed that
[t]he rights to conceive and to raise one's children have been deemed essential basic civil rights of man, and [r]ights far more precious ... than property rights.... It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
In re J.L.B., 182 Mont. 100, 109, 594 P.2d 1127, 1132 (1979) (internal citations and quotation marks omitted).
¶ 21 Nevertheless, while parents have a fundamental right to parent their children, that right is not absolute, especially if there is a conflict of interest between the parents and the children. See e.g. Kulstad v. Maniaci, 2009 MT 326, ¶ 58, 352 Mont. 513, 220 P.3d 595 ( ); Williams v. Superior Court, 147 Cal.App.4th 36, 50...
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