## Facts

- Puckett Construction was the general contractor for construction of a Ramada Inn project in Bozeman, Montana.
- Custom Framing submitted a bid for framing work; Puckett drafted a subcontract dated March 24, 1994, signed it, and sent it to Custom Framing.
- Custom Framing made ten changes, initialed each change, signed the subcontract, and returned it to Puckett’s on-site superintendent, Kenneth Cavenah.
- After reviewing the revised subcontract with Puckett’s owner, Cavenah returned to the jobsite and initialed the changes on April 14, 1994, in the presence of Custom Framing’s principals.
- Custom Framing was scheduled to begin work on April 25, 1994, but about ten days before that date it communicated that it would not start unless Puckett’s owner personally initialed the changes.
- Puckett Construction responded by letter that it would not hire Custom Framing for the job and retained another framing subcontractor on April 18, 1994.
- Custom Framing sued for breach of contract; Puckett Construction denied a contract existed and counterclaimed that Custom Framing’s refusal to perform was a material, total breach.
- The district court concluded a contract was formed when Cavenah, acting as Puckett’s agent, initialed and signed the revised agreement; after a bench trial, it entered judgment for Puckett Construction, awarded $11,405 in damages, and granted attorney’s fees and costs.
- Custom Framing appealed the liability findings and the attorney’s fee and cost awards.

## Issues

1. Whether Custom Framing committed an anticipatory breach of the subcontract by refusing to begin work unless Puckett’s owner personally initialed the changes.
2. Whether the district court abused its discretion in the amount of attorney’s fees and costs awarded to Puckett Construction.
3. Whether Puckett Construction was entitled to attorney’s fees and costs on appeal.

## Decision

- The Montana Supreme Court affirmed the judgment that Custom Framing anticipatorily breached the subcontract.
- The court held that Custom Framing’s refusal to perform unless an additional, noncontractual condition was met justified Puckett Construction’s termination and replacement of the subcontractor.
- The court affirmed the trial-level award and amount of attorney’s fees and costs to Puckett Construction.
- The court held Puckett Construction was entitled to attorney’s fees and costs on appeal and remanded for determination of the amount.

## Legal Principles

- A party commits anticipatory breach when it unequivocally refuses to perform contractual duties or conditions performance on demands not required by the contract.
- Once a contract is formed through assent by an authorized agent, a counterparty cannot unilaterally impose an additional assent requirement as a condition of its own performance.
- A material anticipatory breach allows the nonbreaching party to treat the contract as terminated and to obtain resulting damages.
- Attorney’s fees and costs awarded under a contractual fee provision are reviewed for abuse of discretion; a trial court’s supported assessment of reasonableness will be upheld.
- When a prevailing party is entitled to contractual fees, that entitlement may extend to fees and costs incurred on appeal, with the amount determined on remand.

## Conclusion

The court held that a subcontractor’s insistence on a new condition for performance—personal initials from the contractor’s owner after the contractor’s authorized superintendent had already assented—was an anticipatory breach, supporting termination, damages, and an award of attorney’s fees and costs at trial and on appeal.


Chamberlin v. Puckett Constr. Co., 921 P.2d 1237 (Mont. 1996)