                                                                                                 09/06/2016
                                          DA 15-0605

              IN THE SUPREME COURT OF THE STATE OF MONTANA                                   Case Number: DA 15-0605



                                          2016 MT 218


JUNKERMIER, CLARK, CAMPANELLA, STEVENS, P.C.,
a Montana Professional Corporation,

               Plaintiff and Appellant,

         v.

ALBORN, UITHOVEN, RIEKENBERG, P.C.,
a Montana Professional Corporation, TERRY ALBORN,
PAUL UITHOVEN, CHRISTINA RIEKENBERG, JOE
BATESON, and SHERM VELTKAMP,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV 13-736C
                       Honorable George Huss, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Kirk D. Evenson (argued), Thomas A. Marra, Marra, Evenson & Bell,
                       P.C., Great Falls, Montana

                For Appellees:

                       Michael J. Lilly (argued), Bridget W. leFeber, Berg, Lilly & Tollefsen,
                       P.C., Bozeman, Montana

                For Amici:

                       Amy D. Christensen, Christensen & Prezeau, PLLP, Helena, Montana


                                                     Argued and Submitted: June 8, 2016

                                                                   Decided: September 6, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.



¶1    Junkermier, Clark, Campanella, Stevens, P.C. (Junkermier) lost its Bozeman

branch office after all but one of its Bozeman shareholders decided to start their own

firm, taking most of Junkermier’s clients with them. Junkermier sought to enforce a

contractual covenant restricting competition, but the Eighteenth Judicial District Court

held the agreement unenforceable.      The court also rejected Junkermier’s claim for

damages against some of the Appellees for breach of fiduciary duty.1 We consider the

following issues on appeal:

       1. Whether the District Court erred by failing to analyze the reasonableness of
the covenant because it concluded that the underlying contract was unenforceable.

      2. Whether the District Court erred in concluding that only one Former
Shareholder breached a fiduciary duty and that Junkermier failed to prove awardable
damages from that breach.

¶2    We reverse in part and remand.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    Junkermier is a Montana accounting firm based in Great Falls, with offices in

other Montana cities that it has acquired through merger or acquisition. Junkermier

merged with the Bozeman accounting firm of Veltkamp, Stannebein, and Bateson, P.C.

(Veltkamp Firm) in 2002. At the time of the merger, the Veltkamp Firm had four


1
  Appellees are Alborn, Uithoven, Riekenberg, P.C., Terry Alborn, Paul Uithoven, Christina
Riekenberg, Joe Bateson, and Sherm Veltkamp. Alborn, Uithoven, Riekenberg, P.C., does
business as Amatics CPA Group and we refer to it as Amatics. We refer to the individual
Appellees collectively as Former Shareholders.
                                           2
shareholders—Former Shareholders Uithoven, Bateson, and Veltkamp, and nonparty

Harry Stannebein. Under the merger agreement, Junkermier and the Veltkamp Firm

equalized their book value and the Veltkamp Firm shareholders received equal value

shares of Junkermier. The merger agreement provided that the Veltkamp Firm could be

“spun-off” if either party determined within eighteen months that the merger was not in

its best interest. Neither party exercised this option. Former Shareholder Riekenberg

was a non-shareholder employee at the Veltkamp Firm who became a Junkermier

employee and shareholder after the merger.

¶4     Former Shareholder Alborn became a Junkermier shareholder in 1980. He served

on Junkermier’s board of directors and, by the spring of 2013, he had been the

Junkermier Bozeman office branch manager for nearly ten years. Former Shareholders

were five of the six Junkermier shareholders in Junkermier’s Bozeman office and held

nearly fifteen percent of Junkermier’s shares. All Junkermier shareholders are subject to

a Stock Purchase and Redemption Agreement (Stock Agreement), which requires that

shareholders be employed by Junkermier in a professional capacity, restricts the transfer

of shares, and details the parties’ obligations regarding the sale and redemption of shares.

¶5     Throughout their employment with Junkermier, Former Shareholders—like all

Junkermier shareholders—were employed under the terms of an annual Shareholder’s

Employment Agreement (Employment Agreement).                The Employment Agreement

defines the parties’ various rights and obligations and contains a covenant restricting

competition (Covenant) that provides, in part:

                                          3
      7. POST-EMPLOYMENT REPRESENTATION OF CLIENTS. If
      this Agreement is terminated for any reason and Shareholder provides
      professional services . . . in competition with [Junkermier] the Shareholder
      agrees as follows:

          a. To pay to [Junkermier] an amount equal to one hundred percent
             (100%) of the gross fees billed by [Junkermier] to a particular client
             over the twelve month period immediately preceding such
             termination, if the client was a client of [Junkermier] within the
             twelve month period prior to Shareholder’s leaving [Junkermier’s]
             employment (hereinafter “particular client”), and the particular client
             is thereafter within one year of date of termination served by
             Shareholder, Shareholder’s partners, or any professional services
             organization employing the Shareholder.

                                         .   .   .

          f. For purposes of this Section, a Shareholder shall be considered to be
             in competition with [Junkermier], by providing professional services
             within the county of the Shareholder’s primary office (the office
             through which the Shareholder provides the majority of his
             professional services), or any county contiguous thereto.

Under the Employment Agreement, Former Shareholders acknowledged that they were

entering into the agreement “with full understanding of the nature and extent covered by

the” Covenant, and that they realized that the Employment Agreement “would not be

entered into without the [Covenant] contained herein.”

¶6    The Employment Agreement contained also a section entitled “Disclosure of

Information.”    That section prohibited shareholders from disclosing confidential

information—defined to include “lists of [Junkermier’s] clients.” The disclosure term

made clear that it applied both during the agreement’s term and “at all times after the

termination of employment with [Junkermier].” The Employment Agreement specified


                                         4
further that any and all confidential information was “the sole and exclusive property of

[Junkermier].”

¶7     Under the Employment Agreement, Junkermier agreed “to compensate the

Shareholder at a mutually agreeable amount.” The agreement specified further that

Former Shareholders would be paid a salary “pursuant to the policies and procedures

contained in the [Junkermier] Employee Manual.” Former Shareholders were paid a base

salary by Junkermier and they also received bonuses when approved by the board of

directors, typically on an annual basis.

¶8     The Employment Agreement’s term would “expire one (1) year from the date of

execution.” It also could be terminated upon the happening of certain specified events.

The Employment Agreement provided further that it could be extended for a one-year

term by Junkermier on written notice.

¶9     In June 2012, Former Shareholders were notified that Junkermier was exercising

its option to extend the terms of their most recent Employment Agreements through

June 30, 2013. In the spring of 2013, Former Shareholders began discussing splitting

from Junkermier due to various frustrations with the firm. Former Shareholders retained

an attorney, who suggested that the Covenant was not enforceable. In early June 2013,

Former Shareholders met with a consultant to get advice about splitting from Junkermier.

¶10    Around that same time, Former Shareholders informed Junkermier CEO Jerry

Lehman in writing that they wanted to discuss leaving Junkermier. Shortly after, the

majority of Former Shareholders met with Lehman. Lehman then informed the other

                                           5
Junkermier shareholders that Former Shareholders intended to leave. He called a special

meeting of the shareholders to discuss the topic. At that meeting the other Junkermier

shareholders appointed a committee to negotiate the details of Former Shareholders’ split

from the firm. The committee and Former Shareholders discussed a transition; each side

made proposals regarding the Bozeman office’s clients, but they never reached an

agreement. On June 20, 2013, Lehman met with the Bozeman office employees and

informed them that Former Shareholders were leaving. Also that same day, Junkermier

sent all the Bozeman office employees a “COBRA Election Notice” informing them that

their employment would end on June 30, 2013.

¶11    The last week of June 2013, Former Shareholder Alborn prepared a “to do list”

assigning various tasks to Former Shareholders and other Bozeman office employees

relating to forming the new Amatics accounting firm, and filed articles of incorporation

for Amatics. Former Shareholders worked for Junkermier until June 30, 2013. The next

day, Former Shareholders and almost all of the Junkermier Bozeman staff began work at

Amatics. Amatics ran a full-page advertisement that same day in the Bozeman Daily

Chronicle announcing its formation and new location. The ad stated that Amatics had

“evolved” from Junkermier.

¶12    Prior to Former Shareholders’ leaving Junkermier, a Junkermier employee

downloaded a copy of Junkermier’s Bozeman client list at Former Shareholder Alborn’s

request. The client list was taken to a local printing shop to print letters to the clients.

On its first day of business, Amatics sent the letters to all of the clients on the

                                         6
downloaded client list informing them about the split from Junkermier.          The letter

included a document that asked the clients to choose whether they wanted to continue

their relationship with Junkermier or to continue their relationship “with the Shareholders

and staff of the former [Junkermier] Bozeman office, now known as [Amatics].”

Junkermier sent its own letter to the Bozeman clients informing them of the changes in

the office in mid-July. Ultimately, about 2,100 of the 2,400 clients on the client list

transferred their accounting work from Junkermier to Amatics. A significant number of

these clients had preexisting relationships with Former Shareholders Uithoven, Bateson,

Veltkamp, and Riekenberg from their days at the Veltkamp Firm.

¶13    Following the split, Junkermier filed a complaint to declare the Covenant

enforceable and to recover damages.       The complaint included claims for breach of

contract and breach of fiduciary duty against Former Shareholders. Pursuant to the

Covenant, Junkermier sought 100% of the gross fees that Junkermier billed in fiscal year

2013 to clients that were serviced by Amatics in fiscal year 2014.         The complaint

originally named a number of other defendants who had left Junkermier’s Bozeman

office, but they were voluntarily dismissed, leaving Former Shareholders and Amatics as

the only defendants. Former Shareholders asserted statutory wage, breach of contract,

and breach of the implied covenant of good faith and fair dealing counterclaims that

eventually also were dismissed.

¶14    On the parties’ cross-motions for summary judgment, the District Court held that

the Employment Agreement was unenforceable because it was merely an agreement to

                                         7
agree and also was a contract of adhesion. The court concluded, however, that there were

issues of material fact regarding the breach of fiduciary duty claim. It set a bench trial to

resolve the issue.

¶15    Following three days of trial, the District Court determined that Junkermier is not

a closely held corporation and concluded that Former Shareholders, other than Alborn,

owed no legal duty to Junkermier.        The court concluded that Alborn breached his

fiduciary duty to Junkermier. The court held, however, that Alborn was not liable for

damages because Junkermier failed to prove damages by substantial evidence.

Junkermier appeals the District Court’s summary judgment and trial rulings.

                              STANDARDS OF REVIEW

¶16    We review summary judgment rulings de novo. Garza v. Forquest Ventures, Inc.,

2015 MT 284, ¶ 11, 381 Mont. 189, 358 P.3d 189. Summary judgment is appropriate

when the moving party demonstrates the absence of a genuine issue of material fact and

entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Garza, ¶ 11. If this

burden is met, the burden shifts to the nonmoving party to establish with substantial

evidence—as opposed to mere denial, speculation, or conclusory assertions—that a

genuine issue of material fact does exist or that the moving party is not entitled to

judgment as a matter of law. Garza, ¶ 11.

¶17    We review a district court’s findings of fact to determine if they are clearly

erroneous. M. R. Civ. P. 52(a)(6); Letica Land Co., LLC v. Anaconda-Deer Lodge Cnty.,

2015 MT 323, ¶ 13, 381 Mont. 389, 362 P.3d 614. A finding is clearly erroneous if it is

                                          8
not supported by substantial evidence, if the district court misapprehended the effect of

the evidence, or if our review of the record convinces us that the district court made a

mistake. Letica Land Co., LLC, ¶ 13. We review a district court’s conclusions of law to

determine if they are correct. Letica Land Co., LLC, ¶ 13.

                                     DISCUSSION

¶18 1. Whether the District Court erred by failing to analyze the reasonableness of the
Covenant because it concluded that the underlying contract was unenforceable.

¶19   The District Court acknowledged that in order to be considered reasonable, a

covenant not to compete must meet each of three factors that we articulated in Dobbins,

De Guire & Tucker, P.C. v. Rutherford, MacDonald & Olson, 218 Mont. 392, 708 P.2d

577 (1985) (hereafter Dobbins). The court concluded that while there were genuine

factual issues as to some of the Dobbins elements, the Employment Agreement as a

whole was not enforceable.      Relying on cases from other jurisdictions, the court

concluded that the amount of compensation is an essential term in a contract for services.

Because the Employment Agreement did not specify the amount of compensation, or

provide a “formula, mode, or provision” for determining compensation, the District Court

determined that the agreement was an unenforceable agreement to agree. The court

concluded further that the Employment Agreement was unenforceable because it was a

contract of adhesion. The court thus held that the Covenant was unenforceable because

the Employment Agreement was unenforceable.




                                        9
A.    Junkermier’s arguments pertaining to the Employment Agreement’s
enforceability

¶20     Former Shareholders contend that Junkermier did not respond to their summary

judgment arguments that the Employment Agreement lacked an adequate compensation

term and was only an agreement to agree. Because it was Junkermier’s duty to respond

as the party opposing the motion, Former Shareholders claim that the District Court had

no duty to develop arguments on Junkermier’s behalf.          The District Court adopted

Former Shareholders’ position and granted summary judgment to them in large part

because Junkermier failed to address the arguments. Former Shareholders contend that

Junkermier cannot now raise the arguments it failed to raise with the District Court.

¶21     In response, Junkermier claims that it specifically addressed the issues of

compensation and whether the Employment Agreement was an agreement to agree. As

such, Junkermier argues that its arguments are properly before this Court on appeal.

¶22     A review of the record demonstrates that although Junkermier did not develop the

argument, it did address briefly Former Shareholders’ claims regarding the issues of

compensation and agreements to agree both in its briefing and in oral arguments before

the District Court on summary judgment. Either way, Junkermier’s alleged failure to

respond to Former Shareholders’ arguments did “not relieve the District Court of the duty

to engage in a Rule 56 analysis when presented with [Former Shareholders’] motion for

summary judgment.” Chapman v. Maxwell, 2014 MT 35, ¶ 11, 374 Mont. 12, 322 P.3d

1029.    Thus, the District Court was required to look beyond the parties’ briefs in

concluding on summary judgment that the Employment Agreement was unenforceable.
                                         10
M. R. Civ. P. 56(c)(3); Chapman, ¶ 11. We do the same in our de novo review of the

District Court’s conclusion that the Employment Agreement was unenforceable.

B. The Employment Agreement’s enforceability

¶23   Junkermier contends that the District Court’s ruling is wrong because the “amount

of the salary is not the consideration for the [Covenant], the employment itself is.”

Junkermier claims that the Employment Agreement was an enforceable contract,

supported by adequate consideration, because Former Shareholders had employment and

they had been compensated for their work through the end of their employment.

Junkermier points out that Former Shareholders admitted as much in their counterclaims

when they asserted that the parties mutually agreed upon a compensation amount and that

they were compensated for their employment at Junkermier. Junkermier accordingly

claims that the agreement was not merely an agreement to agree.

¶24   Junkermier contends also that the District Court erred in determining that the

Employment Agreement was a contract of adhesion because Former Shareholders were

not just Junkermier employees, but officers, shareholders, and a director.         The

Employment Agreement, Junkermier maintains, was effectively an agreement that

Former Shareholders entered into with themselves as owners of Junkermier. Junkermier

contends that Former Shareholders’ bargaining power precludes a conclusion that the

Employment Agreement was an adhesion contract.

¶25   Former Shareholders counter that the Employment Agreement’s compensation

term does not include the amount of compensation or a mode or means to calculate it.

                                       11
Therefore, Former Shareholders claim that the agreement does not include all of an

employment contract’s essential terms and therefore is unenforceable.              Former

Shareholders argue that the Employment Agreement is merely an agreement to agree

because it left the compensation to be determined later.       Former Shareholders also

contend that the Employment Agreement is a contract of adhesion because they “had no

meaningful choice in signing” the agreement, they were in a weaker bargaining position,

and the agreement’s terms are more favorable to Junkermier.

       I. Whether the Employment Agreement was an agreement to agree

¶26    “Both the existence of a contract and its interpretation are questions of law which

we review for correctness.” Hurly v. Lake Cabin Dev., LLC, 2012 MT 77, ¶ 14, 364

Mont. 425, 276 P.3d 854. In order to be binding, “[a] contract must contain all its

essential terms.” Hurly, ¶ 17 (citation and internal quotations omitted). A contract’s

essential elements include “a sufficient cause or consideration.” Section 28-2-102(4),

MCA.

¶27    Consideration is:

       Any benefit conferred or agreed to be conferred upon the promisor by any
       other person, to which the promisor is not lawfully entitled, or any
       prejudice suffered or agreed to be suffered by the person, other than
       prejudice that the person is at the time of consent lawfully bound to suffer,
       as an inducement to the promisor is a good consideration for a promise.

Section 28-2-801, MCA. In other words, “[c]onsideration requires that the contracting

parties, each as to the other, confer some legal benefit and/or incur some detriment as an

inducement to performance.” State Pub. Employee’s Ass’n v. Office of the Governor, 271

                                        12
Mont. 450, 455, 898 P.2d 675, 678 (1995) (citing § 28-2-801, MCA); accord Larson v.

Green Tree Fin. Corp., 1999 MT 157, ¶ 26, 295 Mont. 110, 983 P.2d 357 (“When an

agreement contains a bargained-for exchange in legal positions between parties, the

agreement becomes a legally enforceable contract.”).         “A written instrument is

presumptive evidence of consideration.” Section 28-2-804, MCA.

¶28   The written Employment Agreement “contains a bargained-for exchange in legal

positions between [the] parties.” Larson, ¶ 26. Former Shareholders agreed to provide

professional accounting services on behalf of Junkermier, and Junkermier agreed to

employ Former Shareholders to provide those professional services. The Employment

Agreement specifies the parties’ performance obligations to each other: Junkermier

would employ and compensate Former Shareholders, and Former Shareholders would

provide professional services, would not disclose confidential information, and would not

compete without paying liquidated damages.        And, to quote Former Shareholders’

counterclaims, the Stock Agreement and the Employment Agreement “were

interdependent. The execution of one of the Agreements was consideration for the

execution of the other Agreement.” (Emphasis added.) Not only was each Former

Shareholder paid a salary, each was issued stock in Junkermier as called for by the Stock

Agreement once he or she became an employee under the Employment Agreement.

Clearly, Junkermier and Former Shareholders, “each as to the other, confer[red] some

legal benefit and/or incur[red] some detriment as an inducement to performance.” State

Pub. Employee’s Ass’n, 271 Mont. at 455, 898 P.2d at 678.

                                       13
¶29    We are unpersuaded by Former Shareholders’ contention that the Employment

Agreement is unenforceable because it does not include the amount of compensation or a

mode or means to calculate compensation. Former Shareholders correctly assert that an

“agreement that requires the parties to agree to material terms in the future is not an

enforceable agreement.” GRB Farm v. Christman Ranch, Inc., 2005 MT 59, ¶ 11, 326

Mont. 236, 108 P.3d 507. Former Shareholders, however, cite no cases in which we have

held that the amount of compensation, or a means or mode of calculating compensation,

is a mandatory term in an employment contract.

¶30    A contract “must be complete and certain in all essential matters included within

its scope.” Steen v. Rustad, 132 Mont. 96, 106, 313 P.2d 1014, 1020 (1957). Thus, the

Employment Agreement could not be enforced if its terms were “not sufficiently certain

to make the precise act which [was] to be done clearly ascertainable.” GRB Farm, ¶ 11

(citation and internal quotations omitted); accord Steen, 132 Mont. at 106, 313 P.2d at

1020 (concluding that in order for a contract to be enforceable “[n]othing must be left to

conjecture or surmise, or be so vague as to make it impossible for the court to glean the

intent of the parties from the instrument, or the acts sought to be enforced”). On the other

hand, “absolute certainty and completeness in every detail is not a prerequisite of specific

performance, only reasonable certainty and completeness being required.” Steen, 132

Mont. at 106, 313 P.2d at 1020.




                                         14
¶31   The parties’ intent in entering into the Employment Agreement is clear—

Junkermier agreed to employ Former Shareholders, and Former Shareholders agreed to

be employees of Junkermier.      Under the Employment Agreement’s “Compensation”

term, Former Employees would be compensated a “monthly salary (less applicable

withholdings) . . . pursuant to the policies and procedures contained in the [Junkermier]

Employee Manual.” That Junkermier and Former Shareholders settled upon a base salary

and that Junkermier paid Former Shareholders that base salary demonstrate that the

parties “mutually agree[d]” to a compensation amount per the Employment Agreement.

The employee manual—explicitly incorporated in the Employment Agreement—

conferred additional benefits to Former Shareholders and specified additional

performance obligations between the parties.        The Stock Agreement—which was

“interdependent” with the Employment Agreement—substantiates that the scope of the

parties’ contractual relationship was “complete and certain in all essential matters.”

Steen, 132 Mont. at 106, 313 P.2d at 1020. Although the parties did not fix a specific

compensation amount, “there was sufficient information provided in the contract to make

the parties’ obligations ‘clearly ascertainable.’” Hurly, ¶ 21 (quoting GRB Farm, ¶ 11).

¶32   We do not have to surmise the mutual obligations in the Employment Agreement.

Its promise and acceptance of employment are sufficient consideration to establish an

essential term of a contract. The District Court erred in declaring the Employment

Agreement an unenforceable agreement to agree.




                                        15
       II. Whether the Employment Agreement was a contract of adhesion

¶33    The fundamental tenet of “contract law is freedom of contract; parties are free to

mutually agree to terms governing their private conduct as long as those terms do not

conflict with public laws.” Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20,

318 Mont. 103, 79 P.3d 250. A court will find a contract unconscionable, however, “if

the bargaining process itself had some inherent unfairness that actually prevented the

contract from being freely negotiated and thus defeated the principle of freedom of

contract.” Arrowhead Sch. Dist. No. 75, ¶ 49. A contract is unconscionable if: (1) it is a

contract of adhesion, and (2) the contractual terms unreasonably favor the drafter.

Arrowhead Sch. Dist. No. 75, ¶ 48. Here, the District Court found that the Employment

Agreement was a contract of adhesion; we therefore analyze the unconscionability

inquiry’s first factor.

¶34    A contract of adhesion is “a standard form contract prepared by one party, to be

signed by the party in a weaker position (usually a consumer), who adheres to the

contract with little or no choice about its terms.” Graziano v. Stock Farm Homeowner’s

Ass’n, 2011 MT 194, ¶ 18, 361 Mont. 332, 258 P.3d 999 (citation omitted). “Disparity in

bargaining power is an essential element of a contract of adhesion.” Day v. CTA, Inc.,

2014 MT 119, ¶ 10, 375 Mont. 79, 324 P.3d 1205. Yet, mere disparity “in bargaining

power does not equate to unenforceability and not all standardized contracts are

unenforceable as adhesion contracts.” Denton v. First Interstate Bank of Commerce,

2006 MT 193, ¶ 33, 333 Mont. 169, 142 P.3d 797.

                                        16
¶35      Granted, the Employment Agreement was a standard form contract—each

Junkermier shareholder signed the same Employment Agreement. Missing, however, is

the essential disparity in bargaining power between the parties. For starters, Former

Shareholders are not “unsophisticated and unsuspecting ordinary citizens” entering into a

contract “as part of the intercourse of daily life.” Kloss v. Edward D. Jones & Co., 2002

MT 129, ¶ 55, 310 Mont. 123, 54 P.3d 1. Rather, they are “sophisticated business

person[s]” who entered into contracts to which they had been subject the entire time they

worked at Junkermier. Denton, ¶ 33. Former Shareholders point to no evidence that

shows that they “required specific protection or [were] improvident in [their] business

dealings.” Denton, ¶ 33. To the contrary, the evidence shows that Former Shareholders

all have extensive accounting experience and were sophisticated and shrewd enough to

form and run a new accounting firm.

¶36      In addition, Former Shareholders were not merely Junkermier employees—they

owned nearly fifteen percent of Junkermier’s shares at the time they left; Former

Shareholder Bateson was on Junkermier’s board of directors immediately prior to the

split; and Former Shareholder Alborn was on Junkermier’s board of directors from 2006-

2012 and was the branch manager for Junkermier’s Bozeman office at the time of the

split.   Former Shareholders’ bargaining power is readily distinguishable from the

disparity between parties in cases recognizing adhesion contracts.       E.g., Kelker v.

Geneva-Roth Ventures, Inc., 2013 MT 62, ¶ 31, 369 Mont. 254, 303 P.3d 777

(concluding that “[n]o doubt exists that [a payday lending company] afforded [a

                                       17
consumer] no opportunity to negotiate the terms of the [payday loan] contract”);

Woodruff v. Bretz, Inc., 2009 MT 329, ¶¶ 9-10, 353 Mont. 6, 218 P.3d 486 (concluding

that a purchase contract between a consumer and a motor home dealer “easily falls

within” the adhesion contract definition in part because the consumer “was the weaker

party to the transaction” and had a “‘relative lack of sophistication’”); Kloss, ¶¶ 27, 37

(concluding that agreements between a financial service provider and “a 95 year old

widow with no bargaining power and a relative lack of sophistication in such matters”

were “clearly contracts of adhesion”).

¶37   The fact that Former Shareholders Uithoven, Bateson, and Veltkamp were

involved in the merger between Junkermier and the Veltkamp Firm in 2002 casts further

doubt on Former Shareholders’ contentions that the Employment Agreement was an

adhesion contract.   Former Shareholder Bateson testified that he participated in the

merger negotiations and “did the due diligence” for the merger. The merger agreement’s

terms explicitly provided, “Each employee of [the Veltkamp Firm] that remains in the

employ of [Junkermier] shall sign both an Employment Agreement and Confidentiality

Agreement.”    Junkermier’s CEO during the merger, Robert Nebel, testified that the

Veltkamp Firm reviewed the Employment Agreement during the merger negotiations.

The merger agreement provided further that the former Veltkamp Firm members had the

option of splitting from Junkermier within eighteen months of its effective date if they

“determine[d] that [the] Merger [was] not in their best interest.” Former Shareholders

Uithoven, Bateson, and Veltkamp did not determine that the Employment Agreement

                                         18
was not in their best interest during the eighteen months they were subject to it and could

have opted out. They therefore had a “meaningful choice regarding [the Employment

Agreement’s] acceptance.” Highway Specialties, Inc. v. State, 2009 MT 253, ¶ 16, 351

Mont. 527, 215 P.3d 667 (concluding that an adhesion contract is one in which “the

weaker bargaining party had no meaningful choice regarding its acceptance”).

¶38    We conclude that the District Court erred in determining that the Employment

Agreement was an unenforceable adhesion contract. The Employment Agreement is an

enforceable contract.

C. The Covenant

¶39    Contracts that restrain trade are “strongly disfavor[ed].” Access Organics, Inc. v.

Hernandez, 2008 MT 4, ¶ 17, 341 Mont. 73, 175 P.3d 899. Consequently, covenants are

to be construed “strictly” and “in favor of rather than against the interest of the” party

who is subject to the covenant.      Access Organics, Inc., ¶ 17 (citation and internal

quotations omitted). Covenants that act as an absolute prohibition on trade—absent an

express statutory exception—are void. Section 28-2-703, MCA; Mungas v. Great Falls

Clinic, LLP, 2009 MT 426, ¶¶ 37-38, 354 Mont. 50, 221 P.3d 1230. Yet, when “a

contract contains a restraint on a person’s ability to practice their profession, but such

restraint is not an absolute prohibition,” a determination must be made as to the

covenant’s reasonableness. Mungas, ¶ 39.

¶40    Here, the District Court concluded, and we agree, that the Covenant only partially

restrains trade. The Covenant is not an absolute prohibition on Former Shareholders’

                                        19
right to engage in their profession. Nor does it prohibit them from competing with

Junkermier.   Rather, the Covenant requires Former Shareholders to pay liquidated

damages if they provide services to a Junkermier client within one year of their departure

from the firm. Because the Covenant is not an absolute prohibition, it cannot be declared

invalid as a matter of law. Mungas, ¶ 38. Rather, when a covenant only partially

restrains trade, we have repeatedly examined the following factors, articulated in

Dobbins, to determine the reasonableness of an employment agreement’s covenant not to

compete:

      1) The covenant should be limited in operation either as to time or place;

      2) the covenant should be based on some good consideration; and

      3) the covenant should afford a reasonable protection for and not impose
      an unreasonable burden upon the employer, the employee or the public.

E.g., Mungas, ¶ 39; Access Organics, Inc., ¶ 16; Mont. Mt. Prods. v. Curl, 2005 MT 102,

¶ 11, 327 Mont. 7, 112 P.3d 979; Daniels v. Thomas, Dean & Hoskins, Inc., 246 Mont.

125, 144, 804 P.2d 359, 370 (1990); State Medical Oxygen & Supply v. American

Medical Oxygen Co., 240 Mont. 70, 74, 782 P.2d 1272, 1275 (1989); Dobbins, 218 Mont.

at 397, 708 P.2d at 580. The Dobbins test “requires a balancing of the competing

interests of the public as well as the employer and employee” in order to determine

whether a covenant constitutes a restraint on trade prohibited by § 28-2-703, MCA.

Dobbins, 218 Mont. at 397, 708 P.2d at 580.

¶41   Junkermier asserts that the District Court erred by not determining whether the

Covenant was reasonable under Dobbins and its progeny. Junkermier contends that the
                                        20
Covenant is similar to other covenants that this Court has determined are partial restraints

on trade. Junkermier asserts that the Covenant satisfies the Dobbins test as a matter of

law because the Covenant was limited as to both time and place, it was based on

consideration, and the Covenant serves a legitimate business interest.        Accordingly,

Junkermier asserts that the Covenant is reasonable and should have been enforced.

¶42    Former Shareholders contend first that the Covenant does not apply because the

Employment Agreement expired by its terms. Given the use of the terms “terminated”

and “expired” in the Employment Agreement, the common meaning of the terms, and

Junkermier’s own interpretation of the terms, Former Shareholders argue that this Court

should construe the Covenant to be applicable only if Junkermier terminated the

Employment Agreement.        Former Shareholders contend next that questions of fact

prevent a conclusion that the Covenant was supported by adequate consideration or that it

was reasonable. Finally, Former Shareholders allege that Junkermier did not have a

legitimate business interest in the Covenant because its actions following Former

Shareholders’ departure demonstrate that the Covenant was not necessary to protect its

goodwill, customer relations, and trade information.

¶43    Both parties rely on Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C., 2011

MT 290, 362 Mont. 496, 265 P.3d 646, to support their respective arguments regarding

the Covenant’s reasonableness. In Wrigg, an accountant who was subject to the same

Junkermier covenant at issue here was informed that her employment agreement would

not be renewed. Wrigg, ¶¶ 5-6. The “dispositive issue” in Wrigg was whether an

                                         21
employer could “enforce a covenant not to compete when the employer ends the

employment relationship”—an issue that had not yet been addressed by this Court.

Wrigg, ¶¶ 2-3, 40. We held squarely that our analysis of a covenant’s enforceability

“applies to both a terminated contract and an expired contract.” Wrigg, ¶ 42. We

concluded that “[w]hether [Junkermier] terminated the [contract], or it expired under its

own terms, proves immaterial to our analysis.” Wrigg, ¶ 42. The District Court correctly

rejected Former Shareholders’ contentions that the Covenant does not apply here because

the Employment Agreement expired and was not terminated.           The “interdependent”

Stock Agreement also helps to show that whether the Employment Agreement expired or

was terminated by one party, both parties retained continuing obligations to each other.

That agreement required Junkermier to redeem Former Shareholders’ shares after they

retired, “whether voluntary or otherwise,” or began working at another accounting firm.

None of these obligations under the Stock Agreement, nor of those under the Covenant,

would materialize unless and until the employment relationship was severed. Former

Shareholders’ claims that the Employment Agreement’s expiration terminated the

obligations between them and the firm are inconsistent and we reject their argument.

¶44   We considered in Wrigg our statement in Dobbins that a covenant must

“reasonably be related to a ‘legitimate business interest.’” Wrigg, ¶ 22 (quoting Dobbins,

218 Mont. at 397, 708 P.2d at 580). We made that observation in Dobbins while

analyzing the “essential” components of a reasonable covenant. Dobbins, 218 Mont. at

396-97, 708 P.2d at 580. We said,

                                        22
        in the absence of a controlling statute the enforceability of a covenant not to
        compete, ancillary to the withdrawal of a partner from an accounting firm,
        depends upon whether the restriction is reasonably related to the legitimate
        business interest of the remaining partners and is not unduly burdensome to
        the covenantor or the public.

Dobbins, 218 Mont. at 397, 708 P.2d at 580.

¶45     In the context of Wrigg—where it was the employer who terminated the

employment relationship—we highlighted “the requirement that an employer must

establish a legitimate business interest” in order for a covenant to be enforceable. Wrigg,

¶ 22.   We observed that “a legitimate business interest [is] an interest that must

necessarily be enforced to protect the basis of the employer’s bargain.” Wrigg, ¶ 24

(citing Restatement (Second) of Contracts § 188 cmt b. (1981)). Because an employee

has “little disincentive” to take “economic advantage of his employer[,] [a] covenant may

be necessary . . . to prevent an employee from exploiting his employment to later

compete and capture the employer’s market.” Wrigg, ¶ 25. A covenant protects the

employer’s interest against an “employee appropriating valuable trade information, good

will, and customer relationships to compete directly against—and take business from—

his former employer.” Wrigg, ¶ 24.

¶46     We analyzed cases from various jurisdictions demonstrating that determining

whether a covenant serves a legitimate business interest requires the court to weigh a

number of factors relating to the employer’s and the employee’s interests.                Wrigg,

¶¶ 26-36.    We noted that courts enforce covenants when employers demonstrate an

interest in protecting themselves from employees who use “customer relationships and

                                          23
information acquired during the employment relationship to compete directly against

[their] former employer.” Wrigg, ¶ 26. In contrast, we noted that courts object to

covenants when employers cannot demonstrate that a covenant is needed “to protect

customer relationships or valuable trade information.” Wrigg, ¶ 28. We opined further

that when an employee initiates termination of an employment relationship that is subject

to a covenant, the employee’s interests are diminished because “[t]he employee makes an

informed decision . . . about the risks associated with a covenant’s enforcement and

voluntarily chooses to encounter those risks.” Wrigg, ¶ 31.

¶47     We pointed out in Wrigg that the language of the Dobbins factors “does not

explicitly require that an employer possess a legitimate interest in the covenant.” Wrigg,

¶ 22.    (Emphasis added.)     But when the employer discontinues the relationship,

consideration of its legitimate business interest is inherent in the court’s balancing and

examination of “the competing interests of the public as well as the employer and

employee.” Dobbins, 218 Mont. at 397, 708 P.2d at 580; see Wrigg, ¶ 22 (concluding

that establishing a legitimate business is “implicit in the Dobbins analysis”).      That

balancing process is undertaken within the framework of the Dobbins test. See Myers v.

Howmedia Osteonics Corp., 2016 U.S. Dist. LEXIS 42583, 25-27 (D. Mont. 2016)

(analyzing under the Dobbins test’s third element whether an employer that terminated

the employment relationship had a legitimate interest in a covenant).

¶48     Balancing the Dobbins factors requires a particularized inquiry into the facts and

circumstances of a particular case.      Daniels, 246 Mont. at 144, 804 P.2d at 370

                                         24
(concluding that “under certain factual circumstances a covenant restraining a lawful

profession . . . may be acceptable if it passes” the Dobbins reasonableness analysis).

Here, protecting the basis of Junkermier’s bargain may justify restrictions against

unfettered access to confidential information and established business relationships by

Former Shareholders who, without such a restriction, have no disincentive to take

advantage of their former employer.           Equally, the court must consider Former

Shareholders’ interests in being able to continue their profession and their clients’ ability

to maintain the trusted relationships they may have built with their personal accountants.

The court must balance the nature of Former Shareholders’ relationships with their clients

with the protectable interest in Junkermier’s client base.

¶49    The District Court did not analyze any of these considerations under Dobbins

because it held the contract unenforceable. This was error. Such an inquiry is “a factual

determination.” Mungas, ¶ 39; accord Daniels, 246 Mont. at 144, 804 P.2d at 370

(concluding that “under certain factual circumstances a covenant . . . may be acceptable if

it passes a three part test of reasonableness”). Accordingly, we remand to the District

Court to undertake a Dobbins analysis.

¶50 2. Whether the District Court erred in concluding that only one Former
Shareholder breached a fiduciary duty and that Junkermier failed to prove awardable
damages from that breach.

A. Breach of fiduciary duty

¶51    The District Court made a number of determinations in addressing Junkermier’s

breach of fiduciary duty claim. First, the court concluded that Junkermier is not a closely

                                         25
held corporation because its ownership and management are not substantially the same.

The court grounded this conclusion on its finding that—prior to Former Shareholders

leaving—Junkermier had twenty-six shareholders but was governed by a six-member

board of directors and was managed by a chief executive officer. The District Court next

found that Former Shareholders were unaware that they were considered Junkermier

vice-presidents, that none of them were ever assigned any duties as vice-presidents, and

that Junkermier’s bylaws required the board to appoint shareholders as vice-presidents,

which it failed to do. The court therefore concluded that Former Shareholders were not

Junkermier officers and consequently owed no legal duty to Junkermier as officers.

Similarly, the court concluded that Former Shareholders did not breach any duties as

Junkermier employees prior to the termination of their employment because it found no

evidence that Former Shareholders solicited other employees to leave Junkermier,

solicited clients to leave Junkermier, or misappropriated any business opportunity of

Junkermier.

¶52   The court concluded further that Former Shareholder Bateson did not breach a

duty to Junkermier as a director because he had resigned from the board in early June

2013 and there was no evidence that he took any action that could be considered a breach

of fiduciary duty prior to that time. The court did conclude, however, that Former

Shareholder Alborn breached his duty to Junkermier as a branch manager given that he

actively participated in planning the split from Junkermier, created the “to do list,” and

directed an employee to download the client list. But the court found that Alborn’s

                                        26
breach of his duty to Junkermier was “largely offset by the subsequent acts of

[Junkermier].”

¶53    Junkermier asserts several points of error in these rulings. First, while Junkermier

agrees that it is not a statutory close corporation under § 35-9-102, MCA, it asserts that it

is a close corporation because its management and ownership are substantially identical

and its shares are not publicly traded. As a close corporation, Junkermier contends that

Former Shareholders owed fiduciary duties of the “utmost good faith and loyalty” to

Junkermier, which they breached by acting for their personal gain. Junkermier contends

further that even if it was not a close corporation, the District Court erroneously found

that Former Shareholders were not Junkermier officers. Junkermier argues therefore that

the District Court erred in concluding that Former Shareholders did not breach their

fiduciary obligations as officers. Finally, Junkermier asserts that as employees Former

Shareholders owed a duty not to violate Junkermier’s bylaws and agreements.

¶54    Former Shareholders respond that Junkermier is not a close corporation because,

contrary to Junkermier’s assertions, such a determination does not “turn on the fact that a

corporation’s shares are not publicly traded or are not readily marketable.” Rather,

Former Shareholders argue, a close corporation is one in which management and

ownership are substantially identical. Former Shareholders emphasize that the court’s

determination on this point is supported by substantial evidence, and therefore is not

clearly erroneous. Next, Former Shareholders claim that the District Court correctly

concluded that they did not owe Junkermier a fiduciary duty as shareholders or as

                                         27
officers. Furthermore, Former Shareholders contend, the District Court did not err in

determining that Bateson did not breach a fiduciary duty as a director because, as the

court found, he resigned as director in early June and his actions before his resignation

were in good faith.      Former Shareholders do not cross-appeal the District Court’s

conclusion that Alborn breached his fiduciary duty.

¶55    A corporation that does “not elect to become a statutory close corporation under

the Montana Close Corporation Act, §§ 35-9-101 et seq., MCA,” still may be considered

a close corporation. Warren v. Campbell Farming Corp., 2011 MT 324, ¶ 10, 363 Mont.

190, 271 P.3d 36; accord Daniels, 246 Mont. at 134, 804 P.2d at 364.                      It is

well-established that “[a] close corporation is one in which management and ownership

are substantially identical to the extent that it is unrealistic to believe that the judgment of

the directors will be independent of that of the stockholders.” Warren, ¶ 27 (quoting

Skierka v. Skierka Bros., Inc., 192 Mont. 505, 519, 629 P.2d 214, 221 (1981)) (internal

quotations omitted). We have characterized a close corporation relationship as “closely

approximat[ing] the relationship between partners.” Daniels, 246 Mont. at 136-37, 804

P.2d at 366 (citing Fox v. 7L Bar Ranch, 198 Mont. 201, 212-13, 645 P.2d 929, 935

(1982)). While “close corporations often utilize share transfer restrictions,” we have

underscored that this is “[b]ecause ownership and management are so intimately related

in such entities.” Gray v. Harris Land & Cattle Co., 227 Mont. 51, 53, 737 P.2d 475,

476 (1987). The relationship between management and shareholders is therefore the key

component in determining whether a corporation is closely-held. See Fox, 198 Mont. at

                                           28
213, 645 P.2d at 935 (citations omitted) (“The enterprise before us is a ‘close

corporation’ in the strictest sense, that is, one in which, regardless of the distribution of

the shareholdings, ‘management and ownership are substantially identical.’”); see also

Warren, ¶ 27; Gray, 227 Mont. at 53, 737 P.2d at 476; Skierka, 192 Mont. at 519, 629

P.2d at 221.

¶56    In determining that Junkermier is not a close corporation, the District Court made

the following findings: that Junkermier had twenty-six shareholders but was managed by

a CEO and governed by six directors; that Junkermier’s bylaws allowed for twenty-five

director positions, but it opted not to have that many directors; and that a major reason for

Former Shareholders’ decision to leave Junkermier was because they felt that

shareholders had been removed from the firm’s decision-making processes. A review of

the record demonstrates that these findings were supported by substantial evidence.

Junkermier has not demonstrated clear error in the District Court’s finding that

Junkermier’s ownership and management are not substantially the same. Based on that

finding, the District Court did not err in concluding that Junkermier is not a close

corporation. We affirm its holding that Former Shareholders did not owe Junkermier a

fiduciary duty in their capacity as shareholders. Cf. Daniels, 246 Mont. at 136, 804 P.2d

at 366 (citation omitted) (concluding that “the fiduciary duty between stockholders of a

close corporation is one of the ‘utmost good faith and loyalty’”).

¶57    Junkermier also urges that Former Shareholders owed a fiduciary duty as officers.

Section 35-1-236(2), MCA, provides that “[t]he bylaws of a corporation may contain any

                                         29
provision for managing the business and regulating the affairs of the corporation that is

consistent with law or the articles of incorporation.” “It is a well[-]established precedent

that the bylaws of a corporation . . . constitute a contract between the member and the

corporation.” Walker v. Helena Ass’n of Realtors tm, Inc., 2000 MT 343, ¶ 16, 303

Mont. 224, 15 P.3d 414 (quoting Appeal of Two Crow Ranch, Inc., 159 Mont. 16, 23, 494

P.2d 915, 919 (1972)); accord 18A Am. Jur. 2d Corporations § 264 (“The bylaws of a

corporation constitute part of a binding broader contract among the directors, officers,

and stockholders formed within the statutory framework of the state.”).                   The

interpretation of a contract is a question of law that we review for correctness. Hurly,

¶ 14.

¶58     Junkermier’s bylaws provide that all “shareholders not elected by the board [as

other officers] shall be appointed vice-president by the board upon initial receipt of

stock.” This provision does not deem shareholders to be officers, but—as the District

Court determined—requires “board action” for a shareholder to be appointed an officer of

Junkermier.    Our review of the record demonstrates that the District Court did not

misapprehend the effect of the evidence or make a clear mistake in finding that there

were no director meeting minutes evidencing Former Shareholders’ appointment “as

vice-presidents upon the initial receipt of their respective stock, or at any other time,” and

that Junkermier “offered no evidence of any such board action.” The District Court

properly determined that Former Shareholders were not Junkermier officers. We thus

affirm its ruling that Former Shareholders did not breach a fiduciary duty as officers.

                                          30
¶59   Finally, we are unpersuaded by Junkermier’s contention that Former Shareholder

Bateson breached a fiduciary duty as a Junkermier director. Montana statute provides

general standards of care for directors of corporations. Section 35-1-418, MCA. The

standards apply, however, only if the person is acting as a director. Cf. § 35-1-418(4),

MCA (“A director is not liable for any action taken as a director . . . if the director

performed the duties of the director’s office in compliance with this section.” (Emphasis

added)). The District Court therefore concluded correctly that it could consider whether

Bateson breached a duty as a director up until the point he resigned from the board in

early June 2013. The record supports the District Court’s factual findings that there was

no evidence that Bateson breached a fiduciary duty during the time he was a director.

We conclude that the District Court did not err in determining that Bateson did not breach

a fiduciary duty to Junkermier.

¶60   The District Court likewise did not err in concluding that Former Shareholders—

other than Alborn—did not breach any duties as Junkermier employees. The court’s

findings that there was no evidence that, prior to leaving Junkermier, Former

Shareholders solicited other employees to leave Junkermier, solicited any Junkermier

clients, misappropriated any Junkermier trade secrets, or usurped any Junkermier

business opportunity are supported by substantial evidence.

¶61   In sum, we conclude that the District Court did not err in determining that only

Former Shareholder Alborn breached a fiduciary duty to Junkermier.




                                        31
B. Damages stemming from Alborn’s breach

¶62    The District Court concluded first that under § 27-1-317, MCA, Junkermier had

the burden of proving both causation and damages stemming from Alborn’s breach of

fiduciary duty. The court concluded further that Junkermier’s damages claims must be

supported by substantial evidence and that damages may not be awarded absent such

proof. Next, the court found that Junkermier’s damages claims for breach of fiduciary

duty were based on the Covenant. The court therefore concluded that “[t]he claim for

breach of fiduciary duty cannot be used as a basis for attempting to recover damages

specified in an unenforceable contract.” Finally, the court determined that Junkermier’s

damages claim—which the court characterized as 100% of gross fees billed under the

Covenant—was not a proper measure of damages because it represented Junkermier’s

loss of anticipated gross income, was predicated on gross receipts of business, and was

the “product of a mere guess or speculation.” Accordingly, the District Court concluded

that Junkermier failed to support its damage claim with substantial evidence and was not

entitled to collect any damages stemming from Alborn’s breach of fiduciary duty.

¶63    To begin with, our conclusion that the Employment Agreement is an enforceable

contract repudiates much of the District Court’s damages analysis. The court clearly tied

its damages analysis to its determination that the Employment Agreement was

unenforceable.   Because we are remanding for analysis of the Dobbins factors, we

reverse the District Court’s ruling. If the court concludes that the Covenant is valid under

Dobbins, further analysis of damages may be unnecessary. If, in contrast, the court

                                         32
rejects the Covenant on the basis of its Dobbins reasonableness analysis, the court must

reanalyze damages stemming from Alborn’s breach of fiduciary duty. In doing so, the

District Court must consider the effect of Junkermier’s evidence regarding the value of

the business it lost stemming from Alborn’s breach, the recurring loss of business caused

by the breach, and whether Junkermier has proven that loss with reasonable certainty.

¶64   It is undisputed that Alborn breached his fiduciary duty to Junkermier. Thus, it is

undisputed that Alborn is liable to Junkermier for that breach. “Once liability is shown,

that is the certainty that damages are caused by the breach, then loss of profits on a

reasonable basis for computation and the best evidence available under the circumstances

will support a reasonably close estimate of the loss by a District Court.” Sebena v. AAA,

280 Mont. 305, 310, 930 P.2d 51, 54 (1996) (quoting Stensvad v. Miners & Merchants

Bank, Etc., 196 Mont. 193, 206, 604 P.2d 1303, 1310 (1982)).           Upon remand, if

necessary, the District Court shall determine “the amount which will compensate

[Junkermier] for all the detriment proximately caused” by Alborn’s breach, “whether it

could have been anticipated or not.” Section 27-1-317, MCA.

                                    CONCLUSION

¶65   We reverse the District Court’s ruling that the Employment Agreement is not an

enforceable contract. We affirm the District Court’s ruling that Former Shareholders,

other than Alborn, owed Junkermier no fiduciary duty. We reverse the court’s ruling on

damages resulting from Alborn’s breach of fiduciary duty. We therefore reverse the

judgment of the District Court and remand for the court to analyze the Covenant’s

                                        33
reasonableness under Dobbins and, if necessary, to analyze Junkermier’s damages

stemming from Alborn’s breach of fiduciary duty.


                                              /S/ BETH BAKER


We concur:


/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ MICHAEL E WHEAT




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