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, TheHonorableThomasM. McKittrick,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: La Rue Smith,Great Falls,Montana For Respondent: Mark Bauer, Great Falls,Montana

Submitted on Briefs: February 14, 1991 Decided: March 21. 1991t 9 I .' Hon. Terry

### N. ~rieweiler delivered 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 Smithwas engaged toperform 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, 1986meeting in the offices of Kevin Douglas Hall's attorney. Pursuant to his representation of Fladstol,Smith accepted a $75 retainer fee. What transpiredattheDecember 22meeting isat issue. Smith contends that Hall admitted his affidavit regarding his mother's incompetence as a custodial parent was false, and that a stipulationtothat effectwould be prepared. Fladstol, Hall, and his attorney deny any such statement or agreement. Fladstol 2$ 3 I 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 differencesbetween thepartiesand thatno further workwould need to be done. The record shows that Smith refused to enter into any stipulation. Smith continued toprepare documents and do research
onbehalf of theFladstolsuntilhewasdischarged byMrs. 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 theDecember 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 thematter. 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 theclientIs interest. InreMarriage ofRolfe (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 attorneytestified that: The gist of the conversationwas about changing custody from grandma to son at that time. How itwas to be done was discussed. I told them I had done it before by stipulationby agreement between theparties. There was discussion in regards to a little bit that there would still have tobe a hearing becausewe stillhad one other party that was concerned. The essence of the end of themeeting was that I was to draft thedocument, 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 inyour 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 tome is what I believe. The direct evidence of onewitness is sufficient forproof 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. Therewas substantial evidence before the court that the continuing actionsby Smithwere unnecessary after themeetingwas 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 toprove thatbased upon the amount of time spent
on plaintiff's behalf that amountwas inadequate as of that date.1 1 

# . For these reasons, the judgment of the District Court is affirmed.

We Concur:

Chief Justice