No. 81-178 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

D. R. MATTHEWS, 

Plaintiff and Respondent, 

RAY I. BERRYPIIAN, ALICE M. BERRYMAN, 

ESTHER E. BERRYMAN, EDWIN G. BROWN, 

DOROTHEA F. BROWN, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellants: 

Terry A. Wallace, Missoula, Montana 

Zane K. Sullivan, Missoula, Montana 

Tipp, Hoven & Skjelset, Missoula, Montana 

Garlington, Lohn & Robinson, Missoula, Montana 

For Respondent: 

D. R. Matthews, Missoula, Montana 

Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana 

Submitted on briefs: October 1, 1981 

Decided: D~C~ 

Filed: - 9 ,1981' 

I/ I I e Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal from an adverse judgment on appellants' 

counterclaims in a quiet title action in the Fourth Judicial 

District, Missoula County. The case was heard without a 

jury . 

The facts, as found by the District Court follow. 

D. R. Mathews, an attorney, had performed legal services 

for Ray Berryman in certain civil and criminal matters. On 

May 16, 1977, appellants Ray and Alice Berryman, husband and 

wife, agreed in writing to pay respondent, D. R. Mathews, 

his fees and to secure the payment by the execution and 

delivery to him of their quitclaim deed to a tract of land 

in Missoula County (Tract M). The quitclaim deed was to be 

held as security for the respondent's fee, which was due on 

April 20, 1978. 

On April 20, 1978, appellants still owed respondent 

$10,000. Respondent filed the quitclaim deed and brought 

this action to quiet title to the property on or about May 

10, 1978. The appellants counterclaimed for damages and 

attorney's fees, charging fraud, coercion, duress, undue 

influence, and violation of the Montana Unfair Trade Practices 

Act. 

The District Court found that appellants' counterclaim 

was not supported by the evidence. It also found, however, 

that the quitclaim deed operated as a mortgage on Tract M, 

securing payment of the $10,000 fee owed to respondent. The 

court, therefore, refused to quiet title in the respondent. 

It ordered, instead, that appellants were to pay the $10,000, 

plus interest, to respondent within 90 days. If the debt were 

not paid within 90 days, the mortgage upon the property was 
to be foreclosed, the property sold, and the debt satisfied 

out of the proceeds of the sale. If the debt were paid 

within 90 days, the property was to be reconveyed to appellants. 

The following issues are presented for review: 

1. Did the District Court err in finding no evidence 

of fraud, duress, or undue influence on the part of respondent? 

2. Did the District Court err in refusing to award 

damages to appellants? 

3. Did the District Court abuse its discretion in 

awarding $10,000 in attorney's fees to respondent? 

4. Did the District Court err in finding that respondent 

had not committed an unfair trade practice? 

We affirm the judgment against appellants. 

The District Court did not err in finding no evidence 

of fraud, duress, or undue influence on the part of the 

respondent. 

The record indicates that the Berrymans signed the 

security agreement and quitclaim deed to Tract M on May 16, 

1977, minutes before respondent was to defend Ray Berryman 

in a criminal trial. Respondent had given the documents to 

the Berrymans weeks before trial for their signatures, but 

they had failed to execute the instruments. Respondent 

testified that on the day of trial, May 16, he told the 

Berrymans that he would immediately withdraw as counsel 

unless the documents were signed before trial. This apparently 

convinced them to sign. Ray Berryman was tried and received 

a 30-year suspended sentence. One of the conditions of his 

probation was that he clear the title to certain lots located 

in Tract M. 

A bill for $10,000 was sent to the Berrymans after the 

trial. This bill was not paid. Respondent filed the quitclaim 
deed and the security agreement sometime after the trial but 

before April 20, 1978, the date by which the $10,000 was to 

be paid. 

According to section 28-2-102, MCA, consent is an 

element essential to the existence of a contract. Consent 

must be free, section 28-2-301, MCA, and an apparent consent 

is not free when obtained through duress, fraud, or undue 

influence. Section 28-2-401, MCA. 

Duress, defined by section 28-2-402, MCA, consists in: 

"(1) unlawful confinement of the person of the 

party, of the husband or wife of such party, or 

of an ancestor, descendant, or adopted child of 

such party, husband, or wife; 

"(2) unlawful detention of the property of any 

such person; or 

"(3) confinement of such person, lawful in form 

but fraudulently obtained or fraudulently made 

unjustly harassing or opressive." 

There is no evidence of confinement or detention in the 

present case. Therefore, the consent of the Berrymans 

cannot be said to have been obtained through duress. 

Fraud is defined as either "actual" or "constructive." 

Section 28-2-404, MCA. 

To constitute actual fraud under section 28-2-405, 

MCA, respondent must be found to have induced the Berrymans 

to sign the documents by: 

"(1) the suggestion as a fact of that which is 

not true by one who does not believe it to be true; 

" (2) the positive assertion, in a manner not 

warranted by the information of the person.making 

it, of that which is not true, though he believes 

it to be true; 

"(3) the suppression of that which is true by one 

having knowledge or belief of the fact; 

"(4) a promise made without any intention of 

performing it; or 

" (5) any other act fitted to deceive. " 
Respondent's actions do not constitute actual fraud. 

Constructive fraud, for the purposes of this appeal, 

consists in the breach of a duty by which the one in fault 

gains an advantage over another by misleading him to his 

prejudice. Section 28-2-406(1), MCA. There is no constructive 

fraud in the present case. First, respondent did not breach 

a duty by demanding security for his fees. Second, respondent 

did not mislead the Berrymans--he had every intention of 

withdrawing as counsel. Third, the Berrymans were not 

prejudiced by being made to secure a debt for which they 

were legally responsible. 

Appellants next contend that their consent was obtained 

by the exercise of undue influence. Section 28-2-407, MCA, 

defines undue influence as: 

" (1) the use by one in whom a confidence is 

reposed by another or who holds a real or apparent 

authority over him of such confidence or authority 

for the purpose of obtaining an unfair advantage 

over him; 

"(2) taking an unfair advantage of another's 

weakness of mind; or 

"(3) taking a grossly oppressive and unfair 

advantage of another's necessities or distress." 

It is enough to say that respondent gained no unfair advantage 

over the Berrymans when he told them he would resign if his 

fee was not secured. It is not unfair to demand security 

for the payment of fees earned. 

Appellants also argue that an inference of undue 

influence is cast upon the transaction because the deed and 

security agreement were signed long after the initiation of 

the attorney-client relationship. In the Matter of Estate 

of Magelssen (1979), - Mont. - , 597 P.2d 90, 36 St.Rep. 

1199, states: 

"The prevailing rule is that attorney fee contracts 

made after the establishment of the fiduciary 

attorney-client relationship are valid if they are 

'fair and equitable.'" 597 P.2d at 93. 
As indicated earlier, the security arrangement set up 

by respondent in the present case was a fair and equitable 

means of insuring payment of his fee. The charge for 

respondent's services--$25.00 per hour--had been established 

by an earlier written agreement of the parties. The papers 

executed on the day of the trial simply established the method 

of payment. 

Finally, appellants argue that a strong inference of 

fraud is raised by the fact that respondent himself notarized 

the quitclaim deed to which he was a named party. Musselshell 

Valley Farming & Livestock Co. v. Cooley (1929), 86 Mont. 

276, 290, 283 P. 213, 217, states that an acknowledgment cannot 

be taken by a grantee. Thus, respondent was not qualified 

to notarize appellants' execution of the deed. There is no 

serious question raised, however, as to whether in fact the 

Berrymans executed the deed. They admit signing it. No 

inference of fraud, therefore, can be drawn from the faulty 

acknowledgment. 

The District Court did not err in refusina to award 

damages to appellants. 

Appellants contend that respondent's filing of the 

quitclaim deed and security agreement created a cloud on 

appellants' title which damaged them financially and made it 

impossible for Ray Berryman to comply with the terms of his 

probation. 

Appellants could have cleared their title to the property 

as against respondent and relieved themsetves of any damages 

by payment of respondent's fee. We affirm the District 

Court's finding that the evidence does not support appellants' 

counterclaim for damages. 

The District Court did not abuse its discretion in 

awarding $10,000 in attorney's fees to respondent. 

-6- 
In making its decision on the proper amount of attorney's 

fees, the District Court had before it two operative documents: 

1. A retainer agreement which recited a charge of $25.00 

per hour for respondent's legal services. 

2. Respondent's timesheet which indicated the number 

of hours per day respondent had devoted to appellants' case 

over a one-year period. 

Thus, there was sufficient information upon which the 

District Court could base its decision regarding attorney's 

fees. As we have stated in the past, Carkeek v. Ayer (1980), 

- 

Mont. , 613 P.2d 1013, 37 St.Rep. 1274, we will not 

disturb a District Court's determination of attorney's fees 

unless an abuse of discretion is shown. We find no abuse in 

the present case. 

The District Court did not err in finding that respondent 

had not committed an unfair trade practice. 

Appellants' final contention is that respondent violated 

the Montana Unfair Trade Practices and Consumer Protection 

Act of 1973 (Act), section 30-14-101, et seq., MCA. 

We have already determined that respondent's actions 

did not constitute fraud, duress, or undue influence. Under 

the facts in this case, the Act has no application. 

The judgment of the District Court is affirmed. 

Justice 
We Concur: 

Chief Justice