No. 90-474
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
LA RUE SMITH,
Plaintiff and Appellant,
CLIFFORD FLADSTOL and NANCY
FLADSTOL, Husband and Wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
La Rue Smith, Great Falls, Montana
For Respondent:
Mark Bauer, Great Falls, Montana
Submitted on Briefs: February 14, 1991
Decided: March 2 1 . 1 9 9 1
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Hon. Terry N. ~rieweilerdelivered the Opinion of the Court.
La Rue Smith appeals from a judgment entered in the District
Court, Eighth Judicial District, Cascade County, denying attorney
fees and costs. We affirm the District Court.
The dispositive issue in this case is whether substantial
evidence existed to support the District Court's finding that
attorney Smith was engaged to perform limited duties and was paid
in full for those services.
Respondent Nancy Fladstol contacted Smith by telephone on
December 17, 1986 about retaining Smith as her attorney. An
appointment was scheduled for the following day. Mrs. Fladstol
informed Smith of pending proceedings to revoke the custodial
rights of the Fladstols in their grandson, Louis Jackson. The
action to set aside the custody decree was initiated by Kevin
Douglas Hall, the father of the child and the son of Nancy
Fladstol. Mrs. Fladstol requested Smith to represent her at a
scheduled meeting with her son and his attorney.
Smith agreed to accompany Mrs. Fladstol to the December 22,
1986 meeting in the offices of Kevin Douglas Hall's attorney.
Pursuant to his representation of Fladstol, Smith accepted a $75
retainer fee.
What transpired at the December 22 meeting is at issue. Smith
contends that Hall admitted his affidavit regarding his mother's
incompetence as a custodial parent was false, and that a
stipulation to that effect would be prepared. Fladstol, Hall, and
his attorney deny any such statement or agreement. Fladstol
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asserts that the agreement reached at the meeting was to allow
transfer of the custody of Louis to his father, and that Hall's
attorney would prepare documentation to that effect. Fladstol
testified that she assumed the agreement would resolve all
differences between the parties and that no further work would need
to be done.
The record shows that Smith refused to enter into any
stipulation. Smith continued to prepare documents and do research
on behalf of the Fladstols until he was discharged by Mrs. Fladstol
on December 29, 1986, for his refusal to sign the stipulation
prepared by Hall's attorney.
Smith initiated suit for fees and costs, and a trial de novo
took place on January 2, 1990. The trial court found Smith had
been retained as counsel up to and including the December 22, 1986
meeting, that he had been fully compensated for his work to that
time, and that all other work was unnecessary to the proper
representation of Fladstols' interest in the matter. Accordingly,
the court entered judgment in favor of Fladstols, including costs.
This appeal ensued.
It is a well-established rule in Montana that the
attorney/client relationship is one of agency. Clinton v. Miller
(1951), 124 Mont. 463, 226 P.2d 487. It is the lawyer's role to
advocate the client Is interest. In re Marriage of Rolfe (1985), 216
Mont. 39, 699 P.2d 79. Contrary to Smith's assertions, the record
shows that the parties agreed to enter into a stipulation, and
thereby avoid prolonging the proceedings. Hall's attorney
testified that:
The gist of the conversation was about changing custody
from grandma to son at that time. How it was to be done
was discussed. I told them I had done it before by
stipulation by agreement between the parties. There was
discussion in regards to a little bit that there would
still have to be a hearing because we still had one other
party that was concerned.
The essence of the end of the meeting was that I was to
draft the document, have it ready, submit it to La Rue,
and I would review it. And when we left the meeting it
was my understanding that we had reached an agreement.
That is between these parties, all issues had been
settled.
Hall testified similarly:
Q: What was the ultimate outcome of the meeting on
December 22nd in your attorney's office?
A: The ultimate outcome was is that she agreed to sign
a stipulation stating that she would not contest the
custody of Louis being transferred over to me is what I
believe.
The direct evidence of one witness is sufficient for proof
of any fact. Section 26-1-301, MCA. Here we have the testimony
of several witnesses that the issues had been settled at the
meeting. There was substantial evidence before the court that the
continuing actions by Smith were unnecessary after the meeting was
conducted, and we will not disturb the District Court's finding
absent a showing of clear error. Rule 52(a), M.R.Civ.P.
There was also substantial evidence to support the amount of
attorney fees awarded. It was undisputed that defendants had
agreed to pay plaintiff $35 per hour for his services. Following
the December 22 meeting, plaintiff was paid $75. There was no
evidence offered to prove that based upon the amount of time spent
on plaintiff's behalf that amount was inadequate as of that date.
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For these reasons, the judgment of the District Court is
affirmed.
We Concur:
Chief Justice