author: JUSTICE NELSON

text:
    PACCAR FINANCIAL CORP., a Washington corporation, Plaintiff and Appellant, v. LES SCHWAB TIRE CENTERS OF MONTANA, INC., a Montana corporation, and INSURANCE COMPANY OF NORTH AMERICA, Defendants and Respondents.
    No. 95-503.
    Submitted on Briefs February 15, 1996.
    Decided July 23, 1996.
    53 St.Rep. 652.
    277 Mont. 171.
    920 P.2d 977.

      For Appellant: Patrick G. Frank, Worden, Thane & Haines, Missoula.
    For Respondent: John R. Velk, Blakley & Velk, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

Paccar Financial Corporation (Paccar) brought this action against Les Schwab Tire Centers of Montana (Les Schwab) and Insurance Company of North America (ICNA) to recover damages for the repossession of tires affixed to semi-trucks and trailers owned by Paccar and leased to MPT Corporation and/or Arthur and Dena Pamin (MPT). The District Court for the Fourth Judicial District, Missoula County, granted Les Schwab’s and ICNA’s Motion for Summary Judgment as well as their Motion for Rule 54(b) Certification to this Court. We affirm.

The following issues are presented for review:

1. Whether the District Court erred in determining that Paccar had no interest in the tires purchased by MPT from Les Schwab.

2. Whether the District Court erred in granting summary judgment to ICNA because Paccar was not a named party to the surety bond and did not have an insurable interest in the tires.

3. Whether the District Court erred in determining that there were no genuine issues of material fact.

Factual and Procedural Background

From late 1987 through early 1989, Paccar entered into several agreements with MPT over the lease of eighteen semi-trucks. To protect its interest in the leased trucks, Paccar filed a financing statement with the Secretary of State on May 17, 1989.

From December 11, 1990, through October 5, 1991, MPT purchased 123 tires and related equipment from Les Schwab for mounting onto the eighteen trucks leased through Paccar as well as several trucks owned by MPT. On July 23,1991, MPT executed a continuing security agreement with Les Schwab setting forth the commercial and credit terms under which MPT could have an on-going business relationship with Les Schwab for the purpose of purchasing, on credit, goods and services for use in its trucking business. Les Schwab did not perfect its lien on the tires until August 5,1991.

When MPT failed to pay for the tires, Les Schwab brought an action in the District Court to repossess them. The court found that Les Schwab had made a prima facie showing of its right to possession and ordered the sheriff to seize the tires. Les Schwab asked ICNA to issue a bond wherein ICNA agreed to indemnify and pay all costs to the Defendants “in the event that the attachment or taking of property of Defendant(s) is found to be wrongful.”

Paccar filed a motion to intervene in the case on August 8, 1992, but before the court could rule on the motion, Les Schwab and MPT entered into a settlement agreement and the case was dismissed. Paccar instituted the present action on November 17, 1992, alleging a claim of conversion against Les Schwab for the repossession of the tires and naming ICNA as a party because of the bond.

On September 9, 1994, Les Schwab and ICNA filed a Motion for Summary Judgment in this action. The District Court granted the motion on March 14, 1995. Upon motion by Les Schwab and ICNA and without objection by Paccar, the District Court certified, pursuant to Rule 54(b), M.R.Civ.P., that its order granting summary judgment is a final order and judgment.

Standard of Review

Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry as follows:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

Issue 1.

Whether the District Court erred in determining that Paccar had no interest in the tires purchased by MPT from Les Schwab.

Paccar contends that under its lease agreement with MPT, the tires became the property of Paccar when they were installed on the trucks leased by MPT. Paccar’s lease agreements with MPT provide in part:

[MPT] shall furnish, at its own expense, all necessary fuel, lubricants, grease, antifreeze, tires, tubes and all other replacement parts and supplies necessary for maintenance and lawful operation of the Equipment....
All parts installed and any modifications and alterations made in the course of the ordinary maintenance and repair of the Equipment shall become the property of [Paccar] and shall remain the property of [Paccar] upon termination of this Agreement unless otherwise provided herein.

The threshold issue then is whether the tires became so affixed to the trucks leased by MPT that they became “accessions.” The District Court found that the tires were not accessions under the common law because they did not become an integral part of the trucks and remained independently identifiable and capable of being removed without harm or damage to the trucks.

The doctrine of accession stems from the equitable notion that an owner of a chattel is entitled to his chattel in the same or improved condition after it has been tampered with by an innocent trespasser. The principle was not designed or intended to give the owner of the chattel more than he had to start with, but it was intended to assure he would not obtain his chattel in a condition of less value or usefulness than before it was changed by a third party. Thus, if the chattel was improved or enhanced and the improvements could not be severed from the chattel without injury to it, the improvements passed to the owner.

Bank of America v. J. & S. Auto Repairs (Ariz. 1985), 694 P.2d 246, 252.

In Bank of America, the bank brought a replevin action to recover a van upon which the bank held a purchase money lien. The automobile repair shop which had repaired the van after its apparent abandonment by the mortgagor, filed a counterclaim. The Supreme Court of Arizona held that if detachable parts, such as the engine, transmission and tires, can be removed without damaging the vehicle, they are not accessions. Bank of America, 694 P.2d at 253. The Arizona court also determined that while a buyer and seller of a vehicle can make an agreement between themselves, they cannot bind third persons not parties to the agreement. Bank of America, 694 P.2d at 250.

Two years later, the Supreme Court of Oregon held in Bancorp Leasing v. Stadeli Pump (Or. 1987), 739 P.2d 548, that because a truck engine is readily severable from the truck, the engine does not accede to the truck when installed by a third party after the old engine fails. Thus the Oregon cotut determined that the engine in Bancorp did not become subject to the bank’s security interest in the truck under a security agreement giving the bank a security interest in all accessions. In Bancorp, the court stated that where the added part is owned by a third party, or where a third party has a security interest in the part, under the common law, courts ordinarily will not conclude that the part acceded to the vehicle unless it is not severable. Bancorp, 739 P.2d at 553.

In like manner, courts in other jurisdictions have ruled that parts that are easily detachable from a vehicle, such as an engine or tires, do not become accessions to the vehicle. See Rabtoay General Tire Co. v. Colorado Kenworth Corp. (Colo. 1957), 309 P.2d 616 (tires are detachable accessories and are not merged in motor vehicle upon which they are placed); Olive’s Store v. Thomas (Okl. 1956), 294 P.2d 562 (seller of tires and tubes was entitled to replevin and to recover possession of tires and tubes from truck seller); Havas Used Cars v. Lundy (Nev. 1954), 276 P.2d 727 (engine is not an accession as it is readily detachable without damage to the rest of the automobile).

In the case before us, the District Court concluded that no reasonable juror could conclude that tires, rims, and lug nuts become such an integral part of a motor vehicle or trailer that one would have to cause damage to the vehicle or trailer in order to remove those items.

In addition, the District Court determined that even if a reasonable juror could conclude that the tires became so affixed to the trucks that they became accessions, § 30-9-314, MCA, allows for the removal of items commonly treated as accessions under the common law. Section 30-9-314, MCA, provides, in part:

Accessions. (1) A security interest in goods which attaches before they are installed in or affixed to other goods takes priority as to the goods installed or affixed (called in this section “accessions”) over the claims of all persons to the whole except as stated in subsection (3) and subject to 30-9-315(1).

Paccar contends that it falls within the exception in § 30-9-314(3)(a), MCA, which recognizes a superior interest in any accession to the whole in favor of a subsequent good faith purchaser for value of the whole. However, Paccar does not qualify as a subsequent good faith purchaser of the whole (the trucks) as Paccar owned the whole (the trucks) prior to MPT’s purchase of the tires from Les Schwab.

Paccar also contends that under § 30-9-301(l)(c), MCA, its ownership interest in the tires is superior to Les Schwab’s unperfected security interest. Section 30-9-301(l)(c), MCA, provides, in part:

an unperfected security interest is subordinate to the rights of:
(c) in the case of goods, instruments, documents, and chattel paper, a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business ... to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected. ...

Paccar contends that it is a buyer not in the ordinary course of business and that it gave value for the tires and received delivery of the tires. Paccar’s argument fails in several respects. First, Paccar incorrectly looks to its relationship with MPT, rather than with Les Schwab. Les Schwab was not a party to the lease between Paccar and MPT and is not bound by its terms. Bank of America, 694 P.2d at 250.

Second, Paccar is not a buyer. Buying requires an exchange of cash or other property, and a sale requires “the passing of title from the seller to the buyer for a price.” Sections 30-1-201(9) and 30-2-106(1), MCA. Paccar gave no money or other property to Les Schwab or MPT subsequent to MPT’s purchase of the tires from Les Schwab.

Finally, Paccar did not take delivery of the tires as required under § 30-9-301(l)(c), MCA. The tires were delivered to MPT, not Paccar.

Therefore, we conclude that Paccar had no interest in the tires purchased by MPT from Les Schwab, and we affirm the judgment of the District Court.

Issue 2.

Whether the District Court erred in granting summary judgment to ICNA because Paccar was not a named party to the surety bond and did not have an insurable interest in the tires.

The District Court concluded that since Paccar failed to establish any superior interests in the tires, Paccar has no claim to assert against the bond provided by ICNA. Paccar contends that, as an intervenor-defendant in Les Schwab’s original claim and delivery action, Paccar is a beneficiary of the ICNA bond and should thus be allowed to bring an action against the bond.

Section 27-17-205, MCA, makes the beneficiary of a bond the person or entity named therein. The person or entity named in the bond in this case was MPT, not Paccar. Furthermore, we held in Standard Sewing Machine Co. v. Smith (1915), 51 Mont. 245, 152 P. 38, that sureties protect only the parties named in the bond.

Since the ICNA bond was expressly written for the benefit of MPT, only MPT can act upon and enforce the bond. Accordingly, we affirm the District Court’s grant of summary judgment to ICNA.

Issue 3.

Whether the District Court erred in determining that there were no genuine issues of material fact.

The District Court determined that Les Schwab, as the moving party, met its burden of proof in demonstrating that no genuine issues of material fact exist. Once that was accomplished, the burden then shifted to Paccar to prove, by more than mere denial and speculation, that a genuine issue does exist. Bruner, 900 P.2d at 903. The District Court concluded that Paccar failed to meet its burden.

Paccar contends that there are genuine issues of material fact that have yet to be resolved. According to Paccar, the unresolved issues are: (1) whether Paccar had actual knowledge of Les Schwab’s prior security interest in the tires prior to Les Schwab’s perfection, and (2) which tires are subject to Les Schwab’s security interest upon perfection and which belong to Paccar.

The issues raised by Paccar are not issues of material fact. Paccar’s allegations of lack of actual knowledge are immaterial because Paccar fails to satisfy the other elements necessary for protection under § 30-9-301(l)(c), MCA. In addition, Paccar has demonstrated no ownership or security interest in the tires and there is no evidence that any of the tires repossessed by Les Schwab belonged to Paccar.

Accordingly, we hold that the District Court was correct in determining that there are no genuine issues of material fact in dispute.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and LEAPHART concur


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    DEBBIE GROVES, Petitioner and Appellant, v. LONN CLARK and LORALEE CLARK, Respondents and Respondents.
    No. 96-040.
    Submitted on Briefs May 16, 1996.
    Decided July 26, 1996.
    53 St.Rep. 703.
    277 Mont. 179.
    920 P.2d 981.

      For Appellant: David F. Stufft, Attorney at Law, Cut Bank.
    For Respondent: James D. Elshoff, Attorney at Law, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On July 24,1995, Debbie Groves petitioned the District Court for the Eighth Judicial District in Cascade County for specific performance of a visitation agreement that she had entered into with Lonn and Loralee Clark. The Clarks filed an objection to Groves’ petition and a brief opposing Groves’request for open adoption. On December 21,1995, the District Court, by agreement of the parties, deemed the Clarks’ objection a motion for summary judgment, concluded that the visitation agreement was void from its inception, and denied Groves’ petition for specific performance. Groves appeals the District Court’s order. We reverse the order of the District Court and remand the matter to that court for further proceedings in accordance with this opinion.

The issue on appeal is whether the District Court erred when it concluded that the visitation agreement executed between the birth mother and the adoptive parents prior to adoption was void as a matter of law.

FACTUAL BACKGROUND

Debbie Groves is the natural mother of Laci Lee Groves Clark. Laci lived with Groves from June 5, 1990, the date of Laci’s birth, until approximately January 28, 1994, when Groves signed a document relinquishing custody of Laci to Lutheran Social Services (LSS) and consenting to adoption.

Prior to her relinquishment of Laci, Groves had become acquainted with Lonn and Loralee Clark, who had encouraged Groves to permit them to adopt Laci through LSS. At one of their meetings, the Clarks told Groves that they would agree to an “open adoption” so that Groves could have visitation rights with Laci after the adoption. Groves was adamant that she would not consent to adoption until the Clarks signed a visitation agreement.

On January 11,1994, the Clarks signed a post-adoption visitation agreement, and on January 14 Groves signed a separate but identical agreement. The agreement provided:

This agreement pertains to Debbie’s desire to have visitation time with Laci Lee Groves (DOB 6-5-90) after Laci is adopted by Lonn and Loralee Clark.

Debbie desires the following:

1.1 hope to be able to give a 2-day notice whenever I’d like have Laci go with me or whenever I’d like to come visit at the Clark home.
2.1 would like to have telephone contact with Laci and the Clark’s [sic] as often as I feel it is necessary.
3. I don’t intend to take Laci out of school unless I have to go to Butte for some emergency. If that happens I do need to take Lacy [sic] with me.

The Clarks signed the agreement in the presence of a notary public. Their signatures followed a provision that read: “We, Lonn and Loralee Clark, are willing to honor Debbie Groves’ wishes regarding her requests for contact with Laci Lee Groves.” Groves signed an identical notarized agreement three days later.

On January 28,1994, Groves executed a document entitled “Relinquishment and Consent to Adoption.” In that document, Groves relinquished Laci to LSS and granted LSS the right to place Laci for adoption. In addition, Groves expressly waived service of any notice of the proceedings for termination of her parental rights and placement of Laci for adoption, and agreed that LSS’ executive director would appear at those proceedings as her attomey-in-fact to execute any documents that may have been required and to complete the placement of Laci in a suitable adoptive home. On February 2,1994, the Eighth Judicial District Court entered an order awarding custody of Laci to LSS and terminating Groves’ custodial and parental rights. After the Clarks filed a petition for adoption on September 23,1994, that court entered a summary decree of adoption. At no time during the adoption proceedings did the Clarks mention their visitation agreement with Groves. As set forth in the “Relinquishment and Consent to Adoption,” Groves did not participate in those proceedings.

Groves and the Clarks abided by the terms of the executed visitation agreement until June 5, 1995. On that date, when Groves telephoned the Clarks to make arrangements to visit Laci on her birthday, the Clarks refused and told Groves she could no longer visit her daughter. Prior to that time, the Clarks had allowed Groves to visit Laci on major holidays and on other occasions.

On July 24, 1995, Groves filed a petition requesting specific performance of her visitation agreement with the Clarks. In response, the Clarks filed an objection to Groves’ petition and a brief in opposition to Groves’ request for open adoption. The parties agreed that the Clarks’ objection could be treated as a motion for summary judgment. The District Court denied Groves’ motion for specific performance on December 21,1995. In its order, the court held that the “Relinquishment and Consent to Adoption” constituted the final, controlling agreement by Groves relating to Laci. Because that document did not reserve any visitation and because that document purported to “terminate all [Groves’] parental rights to [Laci], now and forever,” the court concluded that Groves had given up all of her parental rights and had no claim for post-adoption visitation. Based on that conclusion, the court held that the parties’ visitation agreement was void and unenforceable.

DISCUSSION

Did the District Court err when it held that the visitation agreement executed between Groves and the Clarks prior to adoption was void as a matter of law?

In this case, the District Court treated the matter as appropriate for summary judgment pursuant to Rule 56, M.R.Civ.P. We review a district court’s order for summary judgment de novo and apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. Rule 56(c), M.R.Civ.P., provides that summary judgment is appropriate when there is no genuine issue of.material fact and the moving party is entitled to judgment as a matter of law.

The District Court denied Groves’petition for specific performance on the basis of its determination that Groves had voluntarily given up all of her parental rights to Laci in the “Relinquishment and Consent to Adoption” which she signed on January 28, 1994. The court determined that that document constituted “the final agreement by Groves relating to the child,” and concluded that its failure to reserve any visitation within its terms accomplished full termination of the relationship between Groves and Laci. In reaching its conclusion, the court relied on § 40-8-125, MCA, and In re C.P. (1986), 221 Mont. 180, 717 P.2d 1093.

Section 40-8-125, MCA, provides in relevant part:

(1) After the final decree of adoption is entered, the relation of parent and child and all the rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the adoptive parents adopting such child and the kindred of the adoptive parents.
(2) After the final decree of adoption is entered, the natural parents and the kindred of the natural parents of the adopted child, unless they are the adoptive parents or the spouse of an adoptive parent, shall be relieved of all parental responsibilities for said child and have no rights over such adopted child.

In In re C.P., 221 Mont. at 181, 717 P.2d at 1093, this Court interpreted § 40-8-125, MCA, to preclude visitation rights for the natural parents once a trial court has entered its final decree of adoption. Specifically, we stated:

This language [of § 40-8-125, MCA] is clear. When parental rights are terminated, the natural parent no longer has any rights over the child. This includes visitation rights.

In re C.P., 221 Mont. at 183, 717 P.2d at 1095 (underlining added).

In re C.P. is distinguishable from this case, however. First, in In re C.P., although the parties discussed including visitation rights in the final order, there was no indication in the record that the parties reached any agreement on the issue. In re C.P., 221 Mont. at 182, 717 P.2d at 1094. In contrast, in this case both parties voluntarily signed a notarized agreement which provided the terms of the visitation arrangement. In addition, the Court recognized in In re C.P. that the outcome of that case might have been different had there been a statute that provided for visitation after a final adoption decree and had the parties bargained for the right of visitation. In that case, we noted:

Even if the statutes provided for such a retention of visitation rights, the record in this case contains no evidence to support such a finding .... There is no question that appellant disputed SRS obtaining permanent custody. Thus, there is no question of whether she agreed to their custody in exchange for visitation rights.

In re C.P., 221 Mont. at 183, 717 P.2d at 1095. In this case, the parties did bargain for the right of visitation. In fact, Groves alleges that she agreed to termination of her parental rights and consented to place Laci for adoption only after the Clarks agreed to sign the visitation agreement. Furthermore, since our decision in In re C.P., the Montana Legislature has enacted a statutory provision which recognizes agreements entered into between birth parents and prospective adoptive parents relating to the future conduct of the parties and the adoptive child. Specifically, § 40-8-136, MCA, enacted in 1989, provides in relevant part:

(1) Prior to a hearing under 40-8-109, the birth parents, prospective adoptive parents, and their representatives shall file with the court a report of agreements and disbursements, and they shall serve a copy of the report on the central office of the department.
(2) The report must contain:
(a) all oral and written agreements between the parties that relate to the future conduct of a party with respect to the child. If an oral agreement is reported, the substance of the agreement must be contained in the report and a copy of the report must be served on each party to the oral agreement. Copies of all written agreements must be attached to the report.

(Emphasis added.)

Although § 40-8-136, MCA, does not specifically reference visitation agreements or agreements for continuing contact, that statute does clearly refer to “the future conduct of a party with respect to the child.” If, as this Court determined in In re C.P., the termination of parental rights automatically terminates all rights of the natural parents over the child, then the future conduct of the natural parents with respect to the adoptive child would be irrelevant. Such a construction would render § 40-8-136, MCA, meaningless. It is well established that this Court must give meaning and effect to all statutory provisions, and that a construction which renders a provision meaningless is disfavored. See, e.g., Montana Contractor’s Ass’n v. Department of Highways (1986), 220 Mont. 392, 395, 715 P.2d 1056, 1058; Crist v. Segna (1981), 191 Mont. 210, 212, 622 P.2d 1028, 1029. See also § 1-2-101, MCA. We therefore interpret § 40-8-136, MCA, to provide for the recognition of agreements for post-adoption contact and visitation. That does not, however, end our inquiry.

Section 40-8-136, MCA, provides that prior to a district court hearing for the relinquishment of parental rights and adoptive placement, “the birth parents, prospective adoptive parents, and their representatives shall file with the court a report of agreements and disbursements, and they shall serve a copy of the report on the central office of the department.” On appeal, the Clarks contend that Groves had a duty to file a report of the visitation agreement with the court and that her failure to do so waives her right to now object. The Clarks have, however, mistakenly interpreted the statute’s requirements. Section 40-8-136, MCA, does not place the burden of filing an agreement solely on the birth parent, but rather provides that “the birth parents, prospective parents, and their representatives” share the requirement of filing any such agreement. (Emphasis added.) Furthermore, in this case, Groves had expressly waived her right to participate in the hearing for termination of her rights and adoption of Laci and had appointed LSS’ director to act on her behalf. Therefore, it was the duty of both the Clarks, as prospective parents, and the director of LSS, as Groves’ representative, to file a report of the executed visitation agreement. Groves should not be penalized for those parties’ failure to comply with the requirements of § 40-8-136, MCA. Accordingly, we hold that the failure to file a report of the written visitation agreement does not, of itself, bar Groves’ petition for specific performance.

In order to determine the merit of Groves’ petition for specific performance, however, we must address a district court’s responsibilities once a report of a visitation agreement between the natural parents and prospective adoptive parents has been filed with that court. It is well established that: “It is the policy of the state of Montana to ensure that the best interests of the child are met by adoption proceedings.” Section 40-8-114(1), MCA. To that end, “[t]he needs of the child must be the primary focus of adoption proceedings, with full recognition of the interdependent needs and interests of birth parents and adoptive parents.” Section 40-8-114(3), MCA. It is therefore essential for a trial court, when it considers a post-adoption visitation agreement, to recognize that that agreement should only be given effect if continued contact between the natural parents and the child is in the child’s best interest. If, following a hearing, the district court concludes that such an agreement is in the child’s best interest, we conclude that there is no reason that such an agreement should not be enforced by the court.

Our conclusion that natural parents and prospective adoptive parents may contract for post-adoption visitation and that such agreements should be enforced when they are determined to be in the best interest of the child is supported by the case law of other jurisdictions. For example, in People ex rel. Sibley v. Sheppard (N.Y. 1981), 429 N.E.2d 1049, 1052-53, the Court of Appeals of New York concluded that the statutory creation of an adoptive family does not automatically require the complete severance of all further contact with former relatives. Similarly, the Maryland Special Court of Appeals held that the adoptive parent and the natural parent may “enter into any agreement with respect to visitation rights between the child and the natural parent so long as the visitation is in the best interest of the child and public policy does not prevent such visitation.” Weinschel v. Strople (Md. Ct. Spec. App. 1983), 466 A.2d 1301, 1305 (interpreting Spencer v. Franks (Md. 1937), 195 A. 306). Finally, the Connecticut Supreme Court upheld a visitation agreement that was negotiated in good faith in order to promote the best interest of the child and noted:

The plaintiff’s rights are not premised on an ongoing genetic relationship that somehow survives a termination of parental rights and an adoption. Instead, the plaintiff is asking us to decide whether, as an adult who has an ongoing personal relationship with the child, she may contract with the adopting parents, prior to adoption, for the continued right to visit with the child, so long as that visitation continues to be in the best interest of the child.
Traditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents. We are not prepared to assume that the welfare of children is best served by a narrow definition of those whom we permit to continue to manifest their deep concern for a child’s growth and development.

Michaud v. Wawruck (Conn. 1988), 551 A.2d 738, 740-42 (footnotes and citations omitted).

We conclude that birth parents and prospective adoptive parents are free to contract for post-adoption visitation and that trial courts must give effect to such contracts when continued visitation is in the best interest of the child. We further conclude that Groves was not precluded from filing a petition for specific performance of the parties’ visitation agreement solely on the basis of the Clarks’ failure to file a report of the agreement with the District Court prior to the adoption proceeding. We therefore hold that the District Court erred when it summarily denied Groves’ petition for specific performance without a determination of whether continued visitation is in Laci’s best interest. Accordingly, we remand this case to the District Court for a hearing on whether enforcement of the visitation agreement between Groves and the Clarks would be in Laci’s best interest.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and NELSON concur.


text:
    IN RE THE MARRIAGE OF CHRISTENE L. DAVIS, Petitioner and Respondent, v. STANLEY G. DAVIS, Respondent and Appellant.
    No. 96-186.
    Ordered July 30, 1996.
    53 St.Rep. 727.
    277 Mont. 188.
    921 P.2d 275.
   OPINION AND ORDER

This matter is currently before this Court on an appeal filed by Stanley G. Davis (Davis). Davis has appealed from an order issued by the Nineteenth Judicial District Court, Lincoln County, dismissing his petition for judicial review. The Child Support Enforcement Division of the Montana Department of Public Health and Human Services (CSED), acting on behalf of Christene L. Davis (Christene), has filed a motion to dismiss the appeal on the grounds that it is fruitless, weightless, needless and senseless.

The current dispute originates from an April 18, 1984, decree, judgment and order entered by the District Court ordering Davis to pay $ 175 per month in child support for his two minor children. Davis did not perfect an appeal from the final judgment and order, nor has it been amended, modified or set aside. Christene subsequently applied for and received Aid to Families with Dependent Children for the minor children.

On June 26,1995, CSED filed a notice of intent to withhold income pursuant to § 40-5-413, MCA, alleging that Davis was delinquent on his child support obligation in the amount of $44,975. Davis requested an administrative hearing and on August 15,1995, a hearing was conducted. Following the hearing the Administrative Law Judge issued a decision and order determining that Davis was delinquent on his child support obligation in the amount of $44,975.

On August 29,1995, Davis filed a document with the District Court which appeared to be an appeal from the Administrative Law Judge’s decision and order. Davis did not serve CSED with the document. On the same day the District Court issued an order stating that “[t]he action from which Respondent appeals is unclear, and the document filed by Respondent is deficient in many respects.” Nevertheless, the court allowed the document to be filed but cautioned that no further action would be taken until Davis properly perfected the appeal.

On October 11, 1995, Davis filed a “Petition for Judicial Review” with the District Court. The document named the State of Montana and CSED as Respondents and once again CSED was not properly served with the petition. Davis requested that the District Court invalidate his divorce decree and support order because of fraud. The petition also made claims against persons who were not involved with CSED’s administrative action and requested money damages from the State.

The District Court dismissed the petition with prejudice stating that justice would not be served by requiring CSED to respond to a pleading that is “fatally flawed on its face.” The court stated that the relief Davis sought was outside the court’s power to grant and noted that the Rules of Civil Procedure do not permit Davis to convert an appeal from an administrative decision into a lawsuit against the agency which made the decision. Davis appealed to this Court from the District Court’s order dismissing his petition. CSED then filed its motion to dismiss the appeal which is presently before this Court. Davis has requested that this Court consider CSED’s brief in support of its motion to dismiss as its brief in response to his appeal. We therefore choose to review the appeal on its merits rather than under a motion to dismiss standard.

The Montana Administrative Procedure Act allows for judicial review of agency decisions. Section 2-4-702, MCA, provides that a petition for judicial review must be timely filed and must include a concise statement of the facts and a statement of the manner in which the petitioner is aggrieved. The petitioner must state the grounds as specified in § 2-4-704(2), MCA, upon which he or she contends relief is entitled. Section 2-4-702(l)(b), MCA, states that the petition may not raise any other question not raised before the agency unless good cause is shown and § 2-4-702(2)(a), MCA, requires the petition to be promptly served upon the agency and all parties of record. Section 2-4-704, MCA, states that judicial review shall be confined to the record and that the court may not substitute its judgment for that of the agency on evidentiary matters.

In dismissing Davis’ petition, the District Court determined that it had not been properly perfected and that Davis’ request for relief went beyond the scope of the court’s judicial review power. When a district court dismisses a cause of action we must determine whether the court abused its discretion. Nystrom v. Melcher (1993), 262 Mont. 151, 157, 864 P.2d 754, 758. The test of abuse of discretion is whether the court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Gaustad v. City of Columbus (1995), 272 Mont. 486, 488, 901 P.2d 565, 567.

In the present case, Davis had the opportunity to appeal his original divorce decree and/or modify the support provisions in the order. He chose to pursue neither of those remedies and instead became delinquent on his child support obligation. CSED initiated administrative action to collect the past-due debt and, following an evidentiary hearing, the Administrative Law Judge entered its decision and order. Davis’ petition for judicial review of that order does not comply with the requirements of Montana’s Administrative Procedure Act set forth above and seeks relief beyond that which the District Court or this Court has the power to grant.

We therefore determine that the District Court did not act arbitrarily without employing conscientious judgment, nor did it exceed the bounds of reason resulting in substantial injustice when it dismissed Davis’ petition. We conclude that the District Court did not abuse its discretion in dismissing Davis’ petition. Therefore,

IT IS ORDERED that CSED’s motion to dismiss Davis’ appeal is DENIED. The District Court’s October 11,1995 “Order of Dismissal” is hereby affirmed.

The Clerk is directed to mail a true copy of this Opinion and Order to Stanley G. Davis, to counsel of record for CSED and to the Honorable Michael C. Prezeau, District Judge.

DATED this 30th day of July, 1996.

/S/ JAMES C. NELSON, JUSTICE

/S/ CHARLES E. ERDMANN, JUSTICE

/S/ TERRY N. TRIEWEILER, JUSTICE

/S/ WILLIAM E. HUNT, SR., JUSTICE

/S/ KARLA M. GRAY, JUSTICE


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH BURCHETT, Defendant and Appellant.
    No. 95-507.
    Submitted on Briefs April 25, 1996.
    Decided July 1, 1996.
    53 St.Rep. 590.
    277 Mont. 192.
    921 P.2d 854.

      For Appellant: John I. Petals, HI, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Daniel L. Schwarz, Deputy County Attorney, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

After Joseph Burchett was charged by information in the District Court for the Thirteenth Judicial District in Yellowstone County with the offense of burglary, in violation of § 45-6-204, MCA, he moved the District Court to suppress evidence seized during a search of his residence. The District Court denied Burchett’s motion to suppress. Burchett pled guilty to the offense charged and reserved his right to appeal the denial of his motion to suppress. The District Court sentenced Burchett to a term of five years under the custody and supervision of the Department of Corrections. Burchett appeals the District Court’s denial of his motion to suppress. We affirm the District Court.

The issue on appeal is whether the District Court erred when it denied Burchett’s motion to suppress evidence seized during a probation search.

FACTUAL BACKGROUND

In 1994, Joseph Burchett pled guilty to felony assault. As a result of that plea, he was sentenced to two consecutive two-year terms. That sentence was suspended; however, Burchett was placed on probation pursuant to the rules and regulations of the State Department of Probation and Parole. Among other requirements, the rules provide that: “The probationer/parolee shall not own, possess or be in control of any firearm, including black powder, or deadly weapon as so defined by state or federal statute.” Rule 20.7.1101(5), ARM. The rules also provide that: “Upon reasonable cause, the probation or parole client shall submit to a search of their person, vehicle or residence by a probation/parole officer at any time without a warrant.” Rule 20.7.1101(7), ARM.

Burchett was an employee of Billings Crown Parts, a store dealing in mining equipment parts and supply, from 1990 through 1994. During his employment with Crown Parts, Burchett possessed a key to the store. In August 1994, Crown Parts terminated Burchett after several unexcused absences.

During the Thanksgiving holiday in 1994, Crown Parts was burglarized. Many items, including unique tools, were stolen from a new storage room. Law enforcement suspected an “inside job” because there was no sign of forced entry and the store employees recalled locking the building at closing time.

On December 1, 1994, Crown Parts’ manager contacted law enforcement authorities and told them that he suspected Burchett and another employee as the person or persons who may have been the burglars because of their recent discharges and the fact that the burglary appeared to be an “inside job.” Law enforcement did not make a search or arrest at that time.

On January 17, 1995, Crown Parts’ manager summoned Deputy Frank Dostal to Crown Parts. He informed Dostal that one of his employees had been to Burchett’s home on January 12,1995, and had observed not only the stolen parts, but also a large cache of firearms. The employee reported this information to the manager, but had insisted on remaining anonymous because he feared reprisal from Burchett.

Upon receipt of this information, Dostal immediately contacted Detective Hirschi of the Yellowstone County Sheriff’s Department. Detective Hirschi recalled that Burchett was on probation and contacted Probation and Parole Officer Steven Hurd of the Department of Corrections. Hurd, who remembered that Burchett’s prior two convictions had involved firearms, immediately organized a search of Burchett’s home. Probation and Parole Officer Pam Bunke, Detective Hirschi, and Detective Ron Armstrong of the sheriff’s department assisted Hurd in the search.

Once at Burchett’s home, Hurd knocked on the door, entered, and told Burchett he was conducting a “parole search.” The other officers followed Hurd inside and Detective Hirschi secured the premises. In the basement of Burchett’s home, Hurd, Bunke, and Armstrong discovered a large cache of military-type weapons and explosives. Although the weapons looked authentic, they were later discovered to be antique BB guns, “dummy’ weapons, and explosives.

Upon discovery of the weapons, Hurd summoned Detective Hirschi to the basement. As he walked through the kitchen on his way to the basement, Hirschi discovered a boring bar and tool head, which he believed matched a description of the some of the tools missing from Crown Parts. After examining the weapons in the basement, Hirschi obtained Burchett’s consent to search the premises. During the search, Hirschi discovered numerous items taken from Crown Parts. After Officer Hurd arrested Burchett for violation of his probation and Detective Hirschi gave Burchett Miranda warnings, Burchett admitted to stealing the Crown Parts’ items found in his possession.

On January 25, 1995, the Yellowstone County Attorney charged Burchett in the Thirteenth Judicial District Court with the offense of burglary. Burchett moved the District Court to suppress the seized weapons and tools because he maintained that the probation search conducted by Hurd violated his rights against unreasonable search and seizure pursuant to the United States and Montana Constitutions. The District Court denied Burchett’s motion on June 6,1995.

DISCUSSION

Did the District Court err when it denied Burchett’s motion to suppress evidence seized during a probation search?

We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021.

In this case, the facts are undisputed. Prior to the District Court’s ruling on Burchett’s motion to suppress, the Deputy Yellowstone County Attorney and Burchett’s attomeyjointly submitted stipulated facts. Based on those stipulated facts, the District Court denied Burchett’s motion to suppress. The court concluded that:

Parole Officer Steven Hurd, after being advised by Detective Hirschi of the report that [Burchett] had a large cash [sic] of weapons in his residence had reasonable cause to conduct a search of his residence to ascertain whether or not the conditions of his parole were being violated and the warrantless search conducted by Officer Hurd with the assistance of the other officers did not violate his right, protected by either the United States Constitution or the Montana Constitution to be secure in his home against unreasonable search and seizure.

It is well established that a probation officer may search a probationer’s residence without a warrant as long as the officer has reasonable cause for the search. Rule 20.7.1101(7), ARM; State v. Burke (1988), 235 Mont. 165, 169, 766 P.2d 254, 256. The “reasonable cause” standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy and because the probation officer is in the best position to determine what level of supervision is necessary to provide both rehabilitation of the probationer and safety for society. Burke, 235 Mont. at 169, 171, 766 P.2d at 256, 257 (citing Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709). As we stated in Burke, 235 Mont. at 171, 766 P.2d at 257:

To impose a warrant requirement for residential searches, on the basis of rights enjoyed by persons not on probation, would artificially raise a probationer’s privacy interest to a level inconsistent with conditional liberty status. The probation officer must be able to supervise the probationer, and upon his judgment and expertise, search the probationer’s residence or cause it to be searched.

In this case, however, Burchett does not contest the reasonableness of the search of his residence, but rather asserts that the search was a subterfuge by the police, who did not have probable cause to perform a Fourth Amendment search and who, therefore, involved Burchett’s probation officer so that they could “proceed under the cloak of the probation and parole search clause.” Because Burchett maintains that the search was an attempt by law enforcement to circumvent the warrant requirement, he asserts that the District Court erred when it determined that the search was legal pursuant to both the United States and Montana Constitutions.

There is no evidence, however, that the search of Burchett’s residence was anything other than a probation and parole search. Probation Officer Steven Hurd initiated and supervised the search based on information he had received from a detective. The information, if true, would have constituted a violation of the terms of Burchett’s probation. It was Hurd who knocked on Burchett’s door and informed him that he was performing a “parole search” and it was Hurd who led the other officers into Burchett’s home to perform the search. Such a search by a probation officer of his probationer is both lawful and constitutionally sound. State v. Small (1989), 235 Mont. 309, 312, 767 P.2d 316, 318.

Law enforcement assistance does not render an otherwise lawful probation search invalid. In fact, this Court has specifically recognized that Montana’s probation system would be rendered unworkable if police were not available to assist probation officers. State v. Boston (1994), 269 Mont. 300, 889 P.2d 814; State v. Hawkins (1989), 239 Mont. 404, 781 P.2d 259; Burke, 235 Mont. 165, 766 P.2d 254; Small, 235 Mont. 309, 767 P.2d 316. As we stated in Burke, 235 Mont. at 170, 766 P.2d at 257: “[W]e encourage cooperation and communication between police and probation officers. Police cooperation with probation officers is to be encouraged as an important aid to effective administration of the probation system.”

In this case, based on information he received from law enforcement personnel, Probation Officer Hurd initiated and organized a probation and parole search of Burchett’s residence. Hurd then carried out the search by enlisting the assistance of another probation officer and two detectives who were employed by the sheriff’s department. The fact that Hurd received the information that Burchett was in violation of the terms of his probation from a police officer does not establish that the search was a subterfuge. Rather, the cooperation demonstrated in this case is exactly the type of cooperation and communication this Court has encouraged between probation officers and law enforcement personnel to aid in the effective administration of the probation system. See Burke, 235 Mont. at 170, 766 P.2d at 257; Hawkins, 239 Mont. at 411, 781 P.2d at 263.

We hold that the District Court’s conclusion that Probation Officer Hurd conducted a legitimate probation search based upon reasonable cause and that the search was not a subterfuge for the police is correct as a matter of law. We therefore affirm the District Court’s denial of Burchett’s motion to suppress evidence seized during a probation search.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and HUNT concur.


author: JUSTICE GRAY

text:
    RANDALL R. CHAMBERLIN and RANDALL R. CHAMBERLIN d/b/a CUSTOM FRAMING, Plaintiffs and Appellants, v. PUCKETT CONSTRUCTION, Defendant and Respondent.
    No. 95-470.
    Submitted on Briefs April 25, 1996.
    Decided July 1, 1996.
    53 St.Rep. 593.
    277 Mont. 198.
    921 P.2d 1237.

      For Appellants: Donald E. White, Attorney at Law, Bozeman.
    For Respondent: John Brown; Cok, Wheat & Brown, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Randall R. Chamberlin, d/b/a Custom Framing (Custom Framing), appeals from the Findings of Fact, Conclusions of Law and Judgment of the Eighteenth Judicial District Court, Gallatin County, concluding that Custom Framing committed an anticipatory breach of the subcontractor agreement between Custom Framing and Puckett Construction and from the court’s subsequent order awarding Puckett Construction attorney's fees and costs. We affirm and remand for determination and award of Puckett Construction’s attorney’s fees and costs on appeal.

We address the following issues:

1. Did the District Court err in concluding that Custom Framing committed an anticipatory breach of the subcontractor agreement?

2. Did the District Court abuse its discretion with regard to the amount of attorney’s fees and costs awarded to Puckett Construction?

3. Is Puckett Construction entitled to attorney’s fees and costs on appeal?

Factual Background

In January of 1994, Puckett Construction executed a contract with LT Hotel Enterprises under which Puckett Construction would be the general contractor for construction of a Ramada Inn in Bozeman, Montana. Thereafter, Puckett Construction received a written bid from Custom Framing to perform the framing work associated with the project. Phil Puckett (Puckett), the owner of Puckett Construction, drafted and signed a subcontractor agreement for the framing, which is dated March 24, 1994, and forwarded it to Randall Chamberlin (Chamberlin), one of the partners and owners of Custom Framing. Chamberlin and his partner, David Worthington (Worthington), made ten changes to the agreement and Chamberlin initialed each change.

Chamberlin signed the revised subcontractor agreement and returned it to Kenneth Cavenah (Cavenah), Puckett Construction’s superintendent and sole on-site representative for the Ramada Inn project. In early April, Cavenah took the revised agreement to South Dakota and reviewed it with Puckett; thereafter, he returned to Bozeman and, on April 14,1994, initialed the changes in the presence of Chamberlin and Worthington.

Inclement weather had delayed the Ramada Inn project several times and Custom Framing was scheduled to begin work on April 25, 1994. Ten days prior to that start date, Chamberlin called Puckett Construction’s office in South Dakota and informed the receptionist that Custom Framing would not begin work until Puckett personally initialed the changes Chamberlin had made to the subcontractor agreement. Puckett Construction subsequently sent Custom Framing a letter advising that “Puckett Construction will not be hiring Custom Framing on the Ramada Inn job.” Puckett Construction hired a different framing subcontractor on April 18,1994.

Procedural History

In June of 1994, Chamberlin, individually and d/b/a Custom Framing, sued Puckett Construction for breach of contract and requested an unspecified amount of damages. Puckett Construction answered and denied the existence of a contract. Both parties conducted discovery.

In April of 1995, Puckett Construction moved for summary judgment on the basis that no contract existed. Custom Framing opposed the motion, arguing that “when the contract was signed and initialed by [Cavenah] that there was indeed a binding agreement.” The District Court denied Puckett Construction’s motion, concluding that a contract was formed when Cavenah, Puckett Construction’s agent, signed and initialed the revised agreement; the court also determined that a factual issue existed as to which party breached that contract. The pretrial order subsequently was amended to include a counterclaim by Puckett Construction alleging that Custom Framing’s “refusal to begin work on the project... constituted a material and total breach of the contract... [and] [Puckett Construction] was entitled to ... terminate the contract.”

A bench trial was held in June of 1995. The District Court directed a verdict on behalf of Puckett Construction on Custom Framing’s breach of contract claim, awarded Puckett Construction damages in the amount of $11,405 on its counterclaim, and determined that Puckett Construction was entitled to reasonable attorney’s fees and costs. Thereafter, the District Court held a hearing on attorney's fees and costs and awarded Puckett Construction $9,600 in attorney’s fees and $1,990.65 for costs. Custom Framing appeals.

Discussion

1. Did the District Court err in concluding that Custom Framing committed an anticipatory breach of the subcontractor agreement?

An anticipatory breach of a contract is a repudiation of the promisor’s contractual duty before the time fixed for performance has arrived. STC, Inc. v. City of Billings (1975), 168 Mont. 364, 370, 543 P.2d 374, 377 (citations omitted). A repudiation must be entire, absolute and unequivocal to support an action for anticipatory breach. STC, 543 P.2d at 379. An expression of intent not to perform, standing alone, is not enough. STC, 543 P.2d at 379. An anticipatory breach by one party excuses further performance by the other. See STC, 543 P.2d at 378.

The District Court concluded that Chamberlin’s statement during the telephone call to Puckett Construction on April 15,1994, that Custom Framing would not begin work until Puckett personally initialed the changes Chamberlin made to the subcontractor agreement, constituted an anticipatory breach of the agreement. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161 (citing Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762).

We have not previously addressed whether a party’s demand for performance of terms not contained in a contract, accompanied by a statement that it will not perform if those terms are not met, constitutes an anticipatory breach. Other courts, however, have held that such a demand constitutes an anticipatory repudiation. See, e.g., P & L Contractors, Inc. v. American Norit Co. (5th Cir. 1993), 5 F.3d 133, 139; United California Bank v. Prudential Ins. Co. (Ariz. Ct. App. 1983), 681 P.2d 390, 430; Twenty-Four Collection, Inc. v. M. Weinbaum Constr. (Fla. Ct. App. 1983), 427 So. 2d 1110, 1111.

As discussed by the Arizona Cotut of Appeals, a party’s offer to perform under a contract in accordance with that party’s erroneous interpretation of its contractual rights is not, in itself, an anticipatory repudiation. United California Bank, 681 P.2d at 431. The reason is that, while the party may be asserting an erroneous interpretation of the contract, it is still offering to meet its own contractual obligations and cannot be said to be stating an intent not to perform or a refusal to perform. In order to constitute an anticipatory breach, the party’s insistence on terms which are not contained in the contract must be accompanied by a “clear manifestation of intention not to perform” unless the additional term is met. See United California Bank, 681 P.2d at 430-31. Moreover, a repudiation occurs regardless of whether the demand for performance of terms not contained in the contract was made wilfully or by mistake; in either instance, the other party has been deprived of the benefit of its bargain. United California Bank, 681 P.2d at 431.

We adopt the rationale of the Arizona Court of Appeals in United California Bank regarding the effect of a party’s demand for performance of terms not contained in a contract coupled with a refusal to perform unless those terms are met. A party acts at his peril if, “insisting on what he mistakenly believes to be his rights, he refuses to perform his duty.” United California Bank, 681 P.2d at 430 (quoting Restatement (Second) of Contracts § 250 cmt. d (1981)). On that basis, we conclude that a demand for performance of a term not contained in the parties’ contract, accompanied by an unequivocal statement that the demanding party will not perform unless the additional term is met, constitutes an anticipatory breach of the contract excusing performance by the other party.

Here, Custom Framing’s breach of contract action against Puckett Construction was premised on Cavenah’s authority to sign and initial the revised subcontractor agreement on behalf of Puckett Construction; absent such authority, no contract existed upon which Custom Framing could maintain a breach action. Indeed, Custom Framing prevailed on this issue when it successfully opposed Puckett Construction’s motion for summary judgment. Notwithstanding such authority in Cavenah, however, Chamberlin stated that Custom Framing would not perform under the subcontractor agreement unless Puckett initialed the changes Chamberlin had made to that agreement. Nothing in the agreement required that Puckett, rather than an authorized agent, initial such changes. Therefore, nothing in the agreement entitled Chamberlin to demand such performance by Puckett and to refuse to perform unless its demand was met.

Custom Framing contends that its conduct in this regard does not satisfy the strict criteria for anticipatory breach set forth in STC. We disagree.

STC holds that a mere expression of intent not to perform, standing alone, is insufficient to constitute an anticipatory breach; a repudiation must be clear and unequivocal. STC, 543 P.2d at 379. Here, Chamberlin did more than express a mere intent by Custom Framing not to perform. His statement that Custom Framing would not perform unless Puckett initialed the changes was an unequivocal refusal to perform unless Puckett complied with the demand Custom Framing was not entitled to make under the subcontractor agreement. Pursuant to STC and the rationale adopted from United California Bank, we conclude that Custom Framing’s unauthorized demand for performance and refusal to perform absent compliance with that demand constitutes a clear and unequivocal repudiation of its contractual duty to perform and an anticipatory breach of the subcontractor agreement.

Custom Framing argues that it “stood ready to perform at all times since Mr. Cavenah initialed the changes” on April 14, 1994. In this regard, Chamberlin testified that “I made that statement [indicating Custom Framing would not begin work until Puckett initialed the changes] on the 15th, but we took action that following week as if to start it.” Chamberlin further testified that he made the statement to “get [Puckett’s] attention.”

Custom Framing’s argument that it stood ready to perform and its suggestion that it did not intend to refuse to perform under the agreement — even if taken as true — are irrelevant under the doctrine of anticipatory repudiation. In determining whether an anticipatory breachwas committed, courts are concerned with whether the promisor communicated an unequivocal indication of an intent not to perform under the contract and not with the promisor’s uncommunicated subjective intent in repudiating its contractual obligations. See, e.g., United California Bank, 681 P.2d at 429; STC, 543 P.2d at 379. Apromisee need not jeopardize its own interests by speculating about the promisor’s clear refusal to perform or by waiting until the time set for performance to ascertain whether the promisor’s unequivocal repudiation was serious.

Here, Custom Framing clearly and unequivocally communicated its intent not to begin work absent performance by Puckett of an act not required by the subcontractor agreement. Custom Framing cannot rely on what it contends was its actual, but hidden, intent in order to avoid liability for its anticipatory breach of the subcontractor agreement.

We hold that the District Court did not err in concluding that Chamberlin’s statement dining the telephone call to Puckett Construction constituted an anticipatory breach of the subcontractor agreement.

2. Did the District Court abuse its discretion with regard to the amount of attorney’s fees and costs awarded to Puckett Construction?

The determination of reasonable attorney’s fees is not subject to precise calculation or a formulaic approach. We previously have stated that the following factors should be considered as guidelines in making such a determination: (1) the amount and charactér of services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience required; (6) the attorneys’ character and standing in their profession; and (7) the result secured by the services of the attorneys. Swenson v. Janke (1995), 274 Mont. 354, 361, 908 P.2d 678, 682-83; Majers v. Shining Mountains (1988), 230 Mont. 373, 380, 750 P.2d 449, 453. These factors are not exclusive, however, and district courts may consider other factors as well. Morning Star Enters. v. R.H. Grover (1991), 247 Mont. 105, 113, 805 P.2d 553, 558 (citing Talmage v. Gruss (1983), 202 Mont. 410, 413, 658 P.2d 419, 421). Thus, the reasonableness of attorney's fees must be ascertained under the unique facts of each case. Morning Star, 805 P.2d at 558.

The District Court held a hearing to determine the amount of attorney’s fees and costs to which Puckett Construction was entitled. John Brown (Brown), Puckett Construction’s attorney, submitted an affidavit regarding attorney’s fees and costs, together with an itemized fist of the time charges and costs, prior to the hearing. He stated therein that the total amount of attorney’s fees charged to Puckett Construction in conjunction with this case through July 31,1995, was $9,600 and the total costs were $1,990.65. Brown testified at the hearing that all of the time and costs reflected in his affidavit and attached list related to his representation of Puckett Construction in this case.

Brown and Stephen Pohl (Pohl), Puckett Construction’s expert witness on attorney’s fees, were the sole witnesses at the hearing. Pohl testified that the Swenson I Majers factors for determining the reasonableness of attorney’s fees formed part of the basis of his opinion and he discussed each of those factors in the context of this case. He noted Brown’s extensive legal research on such issues as contract formation, anticipatory repudiation and breach of contract. Pohl pointed out that, in addition to drafting Puckett Construction’s answer and counterclaim, Brown prepared responses to discovery, conducted discovery and wrote numerous briefs. He observed that the approximately $35,000 in damages sought by Custom Framing was a substantial amount of money and that, “not only did [Brown] avoid a judgment on behalf of [Custom Framing], but [Brown] did obtain a verdict in favor of [Puckett Construction] ... and so obviously the results were excellent. ...” Pohl also testified that Brown is an excellent attorney who has an excellent reputation in the community.

Custom Framing cross-examined Pohl and Brown, but did not present its own expert on attorney’s fees. During cross-examination, Pohl did not change his opinions under the Swenson/Majers factors or his ultimate opinion, based on those factors and the facts of this case, that the claimed fees and costs were reasonable.

The District Court determined that the claimed fees and costs were reasonable and issued an order awarding Puckett Construction $9,600 in attorney’s fees and $1,990.65 for costs. We will not disturb a district court’s determination of reasonable attorney’s fees absent an abuse of the court’s discretion. Majers, 750 P.2d at 453 (citing Talmage, 658 P.2d at 420).

Custom Framing argues that the District Court’s award of attorney's fees and costs constituted an abuse of discretion in five specific respects, all of which were brought to the court’s attention during cross-examination of Brown and Pohl. We address each in turn, bearing in mind the abuse of discretion standard and that, in matters such as this, witness credibility and the weight accorded testimony are within the province of the district court. See Keebler v. Harding (1991), 247 Mont. 518, 522, 807 P.2d 1354, 1357 (citing Matter of Estate of Murnion (1984), 212 Mont. 107, 113, 686 P.2d 893, 896).

a. “Unrelated Matters”

Custom Framing contends that the District Court abused its discretion in awarding Puckett Construction attorney’s fees for “disputes that arose during the course of construction that are unrelated to [this case].” This contention relates to three specific entries contained in Brown’s listing of time charges.

First, Custom Framing challenges .75 hours charged on June 10, 1994, for a “Conference w/Ken Cavenah and Phil Puckett re: construction dispute.” Brown testified that all of the entries were attributable to Puckett Construction’s dispute with Custom Framing. Pohl testified that he had no reason to believe that the .75 hour conference was unrelated to this case. Custom Framing did not inquire of Brown about this conference on cross-examination and did not present any evidence in support of its contention that the conference was unrelated to this case.

Second, Custom Framing challenges .50 hours charged on April 13, 1995, for drafting and revising a letter to Puckett regarding “status and delinquent accounts.” Custom Framing contends that the purpose of this letter was to collect money owed to Brown by Puckett and, therefore, the time Brown spent on the letter cannot properly be included in the court’s award of attorney’s fees. However, Custom Framing did not ask Brown about this letter on cross-examination and Pohl testified that this was a proper charge because “it does say status also, and Mr. Brown apparently wrote [Puckett] a letter to let him know where he was in the case.”

Third, Custom Framing challenges .50 hours charged on May 3, 1995, for telephone conferences with Rick Nellen (Nellen) and Calvin Braaksma (Braaksma). Brown testified that both telephone conferences related to this case. Regarding the Nellen conference, Brown explained that Nellen represented Cavenah in a dispute which had arisen between Cavenah and Puckett and which resulted in concerns about whether Cavenah would testify on Puckett Construction’s behalf in this case; according to Brown, his discussion with Nellen on May 3 resolved the matter. Brown also explained that Braaksma represented a party with a pending foreclosure action against the Ramada Inn and that he and Braaksma discussed how Braaksma’s client’s interests could or would be affected by the litigation between Puckett Construction and Custom Framing. Again, Custom Framing presented no evidence indicating that the time charged for these two telephone conferences was unrelated to this case.

b. Summary Judgment Motion

Custom Framing argues that the District Court abused its discretion by awarding fees for 20.25 hours Brown spent on the preparation of, and hearing on, Puckett Construction’s summary judgment motion. It points out that the District Court denied the summary judgment motion from the bench without hearing argument from Custom Framing and apparently relies on Smith v. Johnson (1990), 245 Mont. 137, 798 P.2d 106, for the proposition that attorney’s fees should be denied for time spent on the unsuccessful motion. Custom Framing’s reliance on Smith is misplaced.

Smith involved a scenario opposite from that presented in the instant case. There, the district court denied attorney’s fees for time spent on a successful summary judgment motion and we affirmed on the basis that the “fixing of attorney’s fees is largely within the discretion of the district court and will not be disturbed absent a clear abuse of discretion.” Smith, 798 P.2d at 111. Nothing in Smith mandates a conclusion that district courts must deny attorney’s fees associated with unsuccessful motions as a matter of law or that this Court will determine that a grant of such fees is an abuse of discretion. The discretion involved in determining reasonable attorney’s fees militates against “black letter rules” such as that Custom Framing seems to advocate here and for which it cites no controlling or persuasive authority.

Custom Framing also contends that the motion for summary judgment was “without merit and being so, [was] summarily denied by the Court.” While Custom Framing’s legal argument in this regard is not particularly clear, we observe that the District Court did not state or otherwise indicate that Puckett Construction’s motion for summary judgment was totally without merit or in any way frivolous, as Custom Framing seems to suggest. Moreover, even after Custom Framing brought this theory to the District Court’s attention during the hearing in cross-examining Pohl, the court included all of the fees associated with the summary judgment motion in its fee award. The District Court apparently rejected Custom Framing’s theory of the court’s own evaluation of the summary judgment motion and we cannot do otherwise in order to conclude that the court abused its discretion in awarding the associated fees.

c.Pretrial Order

Custom Framing challenges one hour Brown spent in amending the pretrial order to add a counterclaim for damages which was not in Puckett Construction’s answer or the original pretrial order, contending that it should not be charged for that “omission.” Again, the record contains no evidence in support of Custom Framing’s contention that this time was unreasonable. Moreover, inclusion of the counterclaim earlier in the proceedings presumably would have resulted in the same charge for the work performed, merely recorded at an earlier date.

d.Trial Preparation

Custom Framing challenges the award of attorney’s fees for 29 hours of trial preparation, arguing that such extended preparation is unreasonable for a four-hour trial with no contested facts. Pohl testified, however, that 29 hours was reasonable and the record contains no evidence to the contrary.

e.Computer Research

Finally, Custom Framing challenges the entirety of the $1,306 in costs for Westlaw research which Puckett Construction claimed and the District Court awarded. Brown explained that his firm assigns a code number for each case for the purpose of Westlaw research and that the Custom Framing/Puckett Construction case was assigned such a number. When Westlaw bills Brown’s firm, it sends a “master sheet per code number, [indicating the] amount charged per code number.” Brown testified that “the time related in my affidavit is based upon [the] Puckett Construction/Chamberlin code number.” Pohl opined that the amount of computer research time was reasonable in this case in which Brown wrote numerous briefs and that “the time [Brown] spent using Westlaw was money well spent, probably would have taken a lot more hours of research... if he had come down here to the law library.”

Custom Framing presented no evidence indicating that the West-law costs were unreasonable or not properly attributable to this case. Its argument, for which no authority is cited, is that there was a total failure of proof regarding the reasonableness and propriety of the Westlaw research costs. While Brown might have presented a stronger case in support of this claimed amount, we cannot conclude on the record before us that his evidence constituted insufficient proof as a matter of law upon which to premise an award of $1,306 for Westlaw research costs.

We hold that the District Court did not abuse its discretion in the amount of attorney’s fees and costs it awarded to Puckett Construction.

3. Is Puckett Construction entitled to attorney’s fees and costs on appeal?

Puckett Construction requests that it be awarded its costs and attorneys fees on appeal. Costs on appeal in civil actions are automatically awarded to the prevailing party under Rule 33, M.R.App.P. Additionally, we previously have held that where an award of attorneys fees is based on a contract, the prevailing party is also entitled to an award of reasonable attorney’s fees incurred on appeal. Smith, 798 P.2d at 111 (citing Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200).

Here, the subcontractor agreement between Puckett Construction and Custom Framing provides for attorneys fees and costs incurred in an action “arising out of, in connection with, or incident to [Custom Framing’s] performance of this SUBCONTRACT.” The District Court’s determination that Puckett Construction was entitled to attorneys fees was based on that provision of the subcontractor agreement. Accordingly, we hold that Puckett Construction is entitled to its costs and reasonable attorneys fees incurred in this appeal.

We affirm the decision of the District Court and remand for determination and award of Puckett Construction’s costs and attorney’s fees on appeal.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.


text:
    IN RE THE MATTER OF BABY M.
    No. 95-541.
    Submitted on Briefs April 4, 1996.
    Decided July 8, 1996.
    53 St.Rep. 599.
    277 Mont. 211.
    921 P.2d 857.

      For Appellant: Marvin L. Howe, Simonton, Howe & Schneider, Glendive.
    For Respondent: Thomas J. Lynaugh, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner T.M. filed a petition in the Thirteenth Judicial District Court in Yellowstone County to revoke her relinquishment of parental rights and to withdraw her consent to adoption. After a trial, the District Court entered its order and judgment in favor of the respondent, Catholic Social Services of Montana, Inc. We affirm the order and judgment of the District Court.

The issues on appeal are:

1. Did the District Court err when it concluded that T.M. voluntarily relinquished her parental rights to Baby M.?

2. Did the Court err when it terminated T.M.’s parental rights?

FACTS

T.M. became pregnant in April 1994. She was thirty-five years old, unmarried, and living with her family. She told neither her family nor the natural father about her pregnancy. Instead, she left her family home and mqved tq an out-of-state location during the pregnancy.

In October, while out of state, T.M. first contacted Catholic Social Services (CSS) to inquire about options available to her. CSS offers services which include pregnancy counseling, the adoptive placement of children, and single parent counseling. CSS gave T.M. information on how to contact its Eastern Montana representative, Tylene Merkel, whom T.M. contacted in October 1994. Merkel and T.M. first talked by telephone and then on October 30, 1994, met in person. They also spoke on the telephone and met on several other occasions prior to the baby’s birth on December 23, 1994.

On December 30, Merkel and T.M. met to discuss foster care and T.M. signed a parental agreement that allowed CSS to place her baby in foster care and provided that she agreed “to notify a representative of [CSS] of my decision as to whether or not to release [the baby] for adoption on or before Jan. 23,1994 [sic].” On December 30,1994, CSS placed the baby in foster care and T.M. moved back into her family’s home but still did not inform her parents that she had given birth to the baby.

On February 7, 1995, T.M. told Merkel she wished to place her child for adoption, and on February 9, 1995, she signed a document entitled “A Relinquishment of Parental Rights and Consent to Adoption.” At that same time, T.M. signed an open adoption agreement and invoked her right to privacy. She also signed a document entitled “Deposition Upon Written Questions” in which she exercised her right to privacy and refused to name the child’s father.

On that same day, the prospective adoptive parents took physical custody of Baby M. Two days later, on February 11,1995, T.M. called them and asked for her child back. Merkel then arranged for the prospective adoptive parents, T.M., and her to meet at a motel in Miles City on February 12,1995, to return the baby to T.M. In Miles City, however, T.M. indicated to Merkel and the adoptive parents that she had decided to go through with the placement of Baby M. for adoption. Therefore, the couple returned to Broadus with the baby.

On February 15, 1995, CSS filed a petition in District Court to terminate the parental rights of T.M. and the birth father. On the same day, pursuant to § 40-6-135(6), MCA, the District Court entered an order terminating the parental rights of T.M. and the birth father. The order stated that permanent legal custody of Baby M. was granted to CSS with the right to appear in any court where adoption proceedings are pending to consent to the adoption of Baby M.

CSS and the prospective adoptive parents also entered into an Adoptive Home Agreement on February 15,1995, which formalized the physical placement for adoption that had been done on February 9,1995.

On April 26, 1995, T.M. filed a petition to revoke the relinquishment of parental rights and consent to adoption that she signed on February 9, 1995. She moved for the revocation pursuant to § 40-6-135 and § 40-8-112, MCA, and also claimed that she entered into the relinquishment agreement involuntarily.

On July 24, 1995, after a hearing, the court entered an order in which it concluded that T.M.’s acts of relinquishment of Baby M. and execution of the documents relinquishing parental rights and giving consent to adoption were voluntary and not procured by duress or undue influence.

ISSUE 1

Did the District Court err when it concluded that T.M. voluntarily relinquished her parental rights to Baby M.?

Conclusions of law are reviewed to determine whether the district court’s interpretation and application of the law is correct. Jim’s Excavating Serv., Inc. v. HKM Assocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252. We review underlying factual findings to determine whether they are clearly erroneous. Rule 52(a), M.R.Civ.R; Brown v. Tintinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609. In determining whether factual findings are clearly erroneous we look to whether they are supported by substantial evidence and give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52(a), M.R.Civ.P.

T.M. brought an action for revocation of her relinquishment of parental rights pursuant to § 40-6-135(8), MCA, and alleged that she did not voluntarily sign the relinquishment because it was procured by duress, coercion, or undue influence by Tylene Merkel, a representative for CSS.

Section 40-6-135(8), MCA, governs the rights of a person to revoke a relinquishment and provides in pertinent part:

Upon petition of a person who executed a relinquishment... the court with which the relinquishment was filed may grant a hearing to consider whether the relinquishment should be revoked. A relinquishment may not be revoked if the child has been placed for adoption.

In this case, the parties concede that Baby M. has been placed for adoption. Therefore, T.M. is precluded from revoking the relinquishment pursuant to § 40-6-135(8), MCA.

As with any contract, however, T.M.’s relinquishment may be set aside if legal cause to do so is proven. In this case, T.M. also alleges that the relinquishment was procured by duress, coercion, or undue influence by Tylene Merkel. Section 28-2-1711(1), MCA, provides that a party may rescind a contract “if the consent of the party rescinding ... was given by mistake or obtained through duress, menace, fraud, or undue influence.” (Emphasis added.)

Section 28-2-407, MCA, provides that undue influence consists of:

(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 well settled that undue influence must be proven by the person contesting the contract. In re Marriage of Brownell (1993), 263 Mont. 78, 83, 865 P.2d 307, 310; Adams v. Allen (1984), 209 Mont. 149, 153, 679 P.2d 1232, 1235. We have set forth five factors to consider when a party alleges undue influence with regard to wills:

(1) Confidential relationship by the person attempting the influence;
(2) The physical condition of the person being influenced;
(3) The mental condition of the person being influenced;
(4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind susceptible to undue influence; and
(5) The demands as they may affect the particular person taking into consideration time, place and all circumstances.

Christensen v. Britton (1989), 240 Mont. 393, 398, 784 P.2d 908, 911; see also In re Estate of Hogan (1985), 218 Mont. 428, 431, 708 P.2d 1018, 1020. However, although these factors are important, they give only a means of attempting to prove or a means of analyzing undue influence. For there to be undue influence it is necessary that there be a destruction of free agency. Estate of Hogan, 218 Mont. at 431, 708 P.2d at 1020.

A thorough review of the record reveals that the District Court’s findings were not clearly erroneous and that its conclusions based on those findings (that relinquishment was voluntary and therefore without coercion, duress, or undue influence) was correct.

The record reveals that prior to the birth of Baby M., in October 1994, T.M. first contacted CSS, and from that time until February 7, 1995, T.M. had several contacts with CSS and its representative, Merkel. They met for the first time on October 30,1994, and discussed the options available to T.M. Merkel testified that at the meeting T.M. indicated that she preferred a closed adoption and described the type of family she wished to have adopt her child. Merkel then gave T.M. information related to the options available.

Merkel also testified that the two met again on November 6,1994, and T.M. questioned whether an adoption would be appropriate; however, T.M. later indicated that she thought adoption would be best for her baby and that she still wanted a closed adoption. Merkel testified that at that meeting T.M. also discussed the birth father and her criticisms of him as a person.

Later in November, the two met again and discussed the profiles of the various families who wished to adopt the child. In December, T.M. missed some appointments with Merkel, but attended others and talked on the telephone to Merkel.

After the baby’s birth, T.M. signed a parental agreement that allowed CSS to place the baby in foster care. Merkel testified that after CSS placed the baby in foster care, T.M. and Merkel had several discussions. For example, on January 2,1995, T.M. called Merkel and told her that the decision was hard and that she was concerned about what the right decision would be. On January 13, T.M. informed Merkel that she still had not made a decision. Then, on January 16, the two met and T.M. told Merkel that “I think I’m going to go ahead and adopt him out. My reasons are still there.” According to Merkel, atthe January 16 meeting, she also gave T.M. forms ofwaiver of parental rights similar to the documents ultimately signed by T.M. On January 25, T.M. and Merkel met again and T.M. signed another parental agreement which provided for foster care until February 23,1995.

T.M. met the proposed adoptive parents on January 30,1995. The next day, Merkel called T.M. to see if she had made a decision. T.M. testified that she was offended that Merkel had called her so soon and told Merkel that she had not made a decision and that she needed some more time. Merkel then told T.M. that if she decided to adopt, arrangements would have to be made with the adoptive parents so she needed to know by the end of the week. T.M. testified that she knew the baby was in foster care and that she needed to make a decision so she called Merkel the next day and, referring to whether she would place the baby for adoption, said, “Yeah, I guess so.”

Merkel testified that on February 7,1995, T.M., of her own volition, called her and indicated that she wanted to go through with the adoption. Merkel made notes of that conversation and quoted T.M. as saying, “I need to do this. He needs to go to his new family ... I need to move on. It is what I’m going to do, so I just need to quit putting it off.” A few days prior to February 7 T.M. had called the foster mother, and indicated to her that it was her intention to place Baby M. for adoption. Even weeks earlier, on January 16,1995, T.M. told Merkel that “I think I’m going to go ahead and adopt him out. My reasons are still there.”

On February 9,1995, T.M. signed three documents in connection with her decision to place for adoption. The first document was the Open Adoption Agreement. At the hearing, when asked if an open adoption was what she wanted, T.M. replied, ‘Yeah, I had decided after meeting the [prospective adoptive parents] that I would go open adoption, if I went adoption.” Merkel testified that T.M. had input into various sections of the agreement and set the times and places of visits. Merkel also testified that T.M. did not appear distressed or confused and gave definite and voluntary input to this document.

T.M. also signed the Deposition Upon Written Questions on February 9,1995. The document was necessary because T.M. wanted to claim a right to privacy and not divulge the father’s name. Merkel testified that she gave T.M. the document to read, that she read each question and answered the questions in her own handwriting, and that T.M. did not appear confused or upset while answering these questions. Some of the questions T.M. answered include the following:

INTERROGATORY NO. 21: Has anyone pressured or coerced you into making the decision to relinquish your custody rights to the child for the purposes of placing the child for adoption? If so, please state the names and addresses of those persons.
ANSWER: No.
INTERROGATORY NO. 23: Has any adoption agency forced or pressured you into making the decision to relinquish custody of your child for adoption?
ANSWER: No.
INTERROGATORY NO. 24: Have you voluntarily reached a decision to relinquish custody of the child to an adoption agency?
ANSWER: Yes.

Finally, on February 9,1995, T.M. signed the third document, the actual Relinquishment of Parental Rights at issue in this case. Merkel testified that she had given a copy of this document to T.M. on January 16 and asked her to review it, and that when T.M. came to the meeting on February 9, she indicated that she had reviewed it and did not need to read it again. Merkel also testified that she asked her to read it again, that she again asked her if she had any questions, and that T.M. did not have any questions.

Merkel also testified that she asked T.M. if she understood what the document would do and that T.M. responded that if she signed the document she would be giving away her parental rights to Baby M. In response to another question from Merkel as to how long the relinquishment was good for, T.M. answered, “forever.” Merkel then asked T.M. if she was signing the document of her own free will and she responded that she was.

While CSS and T.M. agree that a confidential relationship existed between Merkel and T.M., there was substantial evidence that the other factors set forth in Hogan are not present. First, the evidence reveals that T.M.’s physical and mental condition was consistent with that of a normal mother faced with the difficult decision of whether to place her child for adoption. T.M. had not only received a high school diploma, but also earned a four-year college degree. She was thirty-five years old and managed a business owned by her family. T.M. was definite from the beginning about her reasons to place her child for adoption — a concern about single parenting and not wanting the birth father involved. The testimony reveals that she initiated discussions about the type of adoption and the profile for the adoptive parents. And, although T.M. contends that she was very upset at critical times in this case, substantial evidence was offered to prove that she knew what she was doing and understood the effect of signing the papers.

Also, the decision to place her child for adoption was not an unnatural disposition which shows “an unbalanced mind or a mind susceptible to undue influence.” Instead, T.M. contacted the adoption agency long before the child was bom because of legitimate personal reasons for considering adoption. She had from December 23, 1994, until February 9, 1995, to carefully consider her decision to place Baby M. for adoption. Moreover, during that time, she had unlimited access to her child. The evidence shows that T.M.’s decision to adopt was the result of her thoughtful consideration of the pros and cons of placement for adoption as opposed to being a single parent.

The last factor to consider in a determination of undue influence is “the demands as they may affect the particular person taking into consideration time, place and all circumstances.” T.M. fails to present evidence that CSS put demands on her. Instead, the evidence reveals that CSS offered the child back to T.M. on two separate occasions— February 9 and 12,1995.

T.M. testified that on February 9, 1995, after she signed the relinquishment and gave the baby to the adoptive parents, she questioned whether she could go through with the adoption. She further testified that Merkel gave her the option of taking the baby with her then, but that she replied, “Well, all right then. I guess I’ll go say goodbye to him.”

On February 12, the parties all traveled to Miles City to give the baby back to T.M. She testified that although she had, by this time, told her mother and sister about the baby, she traveled alone from her home to the meeting in Miles City. She arrived in Miles City early and testified that Merkel was rude to her and asked her to come back later because the adoptive parents were not finished saying goodbye to the baby. T.M. also testified that she responded by saying, “Well, you know, I’d like to talk to them. Maybe they can have him. Maybe I’ve decided they can have him.” T.M. further testified:

I can’t remember my exact words. She [Merkel] said, “Are you at peace with that in your heart?” And I, you know, I said, “yeah, I guess,” or whatever. And I said, “Now, do I have some time? Do I have six months to change my mind?” And she said, “No.”

A review of the record reveals that substantial evidence supports the District Court’s findings and conclusions that T.M.’s relinquishment of parental rights was voluntary and not the result of duress, coercion, or undue influence.

In conclusion, we note that the adoption statutes set forth procedures to be followed in an adoption and provide safeguards for both the natural parents, the child, and the adoptive parents. While the natural parent’s reconsideration is understandable, this case exemplifies the limits placed upon a natural parent’s ability to revoke a voluntarily signed relinquishment — a safeguard for the adoptive parents and the child. Simply put, a relinquishment cannot be revoked merely because the natural parent changes his or her mind. As one court noted: “The certainty which is so important to the security of the children and the peace of mind of those who want to adopt them justifies the barrier the statute erects to a revocation of consent.” Matter of Navaho Cty. Juvenile Action No. JA-691 (Ariz. Ct. App. 1991), 831 P.2d 368, 373.

For these reasons, we conclude that T.M. signed the parental relinquishment voluntarily, and we affirm the District Court’s order and judgment.

ISSUE 2

Did the Court err when it terminated T.M.’s parental rights?

T.M. contends that her parental rights were illegally terminated by the District Court on February 15,1995, because she was not given an opportunity to appear before the court at a hearing to terminate her rights. T.M. neither raised this issue below nor appealed from the February 15, 1995, order terminating parental rights. It is well settled that we will not consider issues raised for the first time on appeal. Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 116; Hislop v. Cady (1993), 261 Mont. 243, 250, 862 P.2d 388, 392; Weaver v. Law Firm of Graybill (1990), 246 Mont. 175, 180, 803 P.2d 1089, 1092-93. We also will not review orders from which no appeal has been taken. Rule 4, M.R.App.P. We will therefore not consider this issue.

For these reasons we affirm the District Court’s order and judgment.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and ERDMANN concur.