                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1420
                        ___________________________

                   Loftness Specialized Farm Equipment, Inc.

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

        Terry Twiestmeyer; Steven Hood; Twiestmeyer & Associates, Inc.

                     lllllllllllllllllllll Defendants - Appellants
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                           Submitted: October 19, 2015
                              Filed: March 15, 2016
                                  ____________

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.
                          ____________


GRUENDER, Circuit Judge.

      Loftness Specialized Farm Equipment, Inc. (“Loftness”) brought a declaratory
judgment action against Terry Twiestmeyer, Steven Hood, and Twiestmeyer &
Associates, Inc. (“TAI”) involving contracts associated with the development,
manufacture, and sale of grain-bagging equipment. Twiestmeyer, Hood, and TAI
then asserted counterclaims against Loftness for, among other things, breach of two
contracts: an agreement providing for two-percent override payments (“Override
Agreement”) on grain-bagging-equipment sales and a non-disclosure agreement
(“NDA”). The district court granted Loftness’s motion for summary judgment on the
breach-of-contract counterclaims and entered judgment for Loftness on its claim for
declaratory judgment. Twiestmeyer, Hood, and TAI appealed. This court affirmed
the district court’s grant of summary judgment to Loftness on the counterclaim for
breach of the Override Agreement and affirmed the dismissal of the unjust enrichment
counterclaim, but we vacated and remanded the grant of summary judgment on the
counterclaim for breach of the NDA. Loftness Specialized Farm Equipment, Inc. v.
Twiestmeyer, 742 F.3d 845, 851 (8th Cir. 2015) (“Loftness I”). On remand, the
district court again granted Loftness’s motion for summary judgment on the claim for
breach of the NDA. Twiestmeyer, Hood, and TAI again appeal. We vacate the grant
of summary judgment and remand for further proceedings.

                                         I.

      Loftness is a corporation that manufactures and sells farm-machine
attachments. Terry Twiestmeyer owned TAI, an independent sales representative that
sold farming equipment on behalf of Loftness and other manufacturers. Hood’s
company, Hood & Company, Inc., also served as a sales representative for Loftness.

      Twiestmeyer and Hood sold grain-bagging equipment manufactured in
Argentina. This experience provided them with knowledge about the market for
grain-bagging equipment and insight into possible improvements to the Argentinian-
made equipment. In 2007, Twiestmeyer and Hood approached Loftness with an idea
for a new line of grain-bag loaders and unloaders for Loftness to manufacture and
sell. Loftness did not manufacture grain-bagging equipment prior to this time.




                                        -2-
      At the May 2007 initial meeting to discuss the potential new product line,
Loftness and TAI executed the NDA. The NDA’s “Protection of Confidential
Information” provision states:

      [Loftness] acknowledges that [TAI] claims its Confidential Information
      as a valuable and unique asset . . . [Loftness] agrees that it will keep in
      confidence all Confidential Information, and that it will not directly or
      indirectly disclose to any third party or use for its own benefit, or use for
      any purpose other than the Project, any Confidential Information it
      receives from [TAI]. [Loftness] agrees to protect the Confidential
      Information, and agrees that in no event will it use less than the same
      degree of care to protect the Confidential Information as it would
      employ with respect to its own information of like importance that it
      does not desire to have published or disseminated.

The NDA defines “Confidential Information” as “[s]uch information that [TAI]
considers to be proprietary and/or confidential.” The “Competitive Business”
provision establishes that “[Loftness] agrees not to use [TAI]’s confidential
information in any way that could be construed as being competitive of [TAI]’s
business for a period of twenty (20) years after the effective date of this Agreement.”

      Twiestmeyer and Hood shared confidential information with Loftness at this
May 2007 meeting. Specifically, Twiestmeyer and Hood informed Loftness about the
market for grain-bagging equipment, the need for such equipment in the United
States, their suggested design improvements to the Argentinian-made equipment, and
the timing for bringing such a product line to the market. After the meeting, Loftness
representatives traveled to Arkansas and Nebraska to examine the Argentinian-made
equipment, then reverse-engineered a prototype of a grain-bag unloader, which,
according to Twiestmeyer and Hood, incorporated several of their ideas, including
the addition of two clutches. Loftness also developed a grain-bag loader. Loftness
began manufacturing and selling this equipment in 2008.


                                          -3-
      In May 2008, the parties entered the Override Agreement to establish
Twiestmeyer and Hood’s compensation for their role in developing the new product
line. In this agreement, Loftness agreed to pay Twiestmeyer and Hood “a two percent
(2%) override of the dealer net price on all grain bagging equipment and related
products, except grain bags, sold by LOFTNESS during the term of the Agreement.”1
The Override Agreement specified a duration of two years.

      In May 2010—just before the Override Agreement was set to expire—Loftness
informed all of its independent sales representatives, including Twiestmeyer and
Hood, that Loftness had reached a deal with Brandt Industries. Under this new
agreement, Brandt Industries would sell Loftness-manufactured grain-bagging
equipment, which allegedly incorporated TAI’s design improvements and other
confidential information.

      Loftness continued paying the two-percent override to Twiestmeyer and Hood
through the end of 2010, even though the Override Agreement had expired. In
January 2011, Twiestmeyer and Hood approached Loftness with a new two-percent
agreement. This proposed agreement included Grain Bag Storage Systems,
Twiestmeyer and Hood’s new business entity, as an additional party and provided for
a ten-year term. Loftness declined, advising Twiestmeyer and Hood that it would
stop using TAI’s trademark and cease making the two-percent override payments
after February 2011.

      Loftness brought suit, seeking a declaratory judgment that it had no duty to pay
Twiestmeyer, Hood, or TAI under any existing contract. Twiestmeyer, Hood, and
TAI filed an answer and asserted five counterclaims: (1) breach of the Override
Agreement, (2) breach of the NDA, (3) violation of the Uniform Trade Secrets Act,


      1
          TAI is not a party to the Override Agreement.

                                          -4-
(4) violation of the Uniform Deceptive Trade Practices Act, and (5) unjust
enrichment. The district court granted Loftness’s motion to dismiss with respect to
counts three, four, and five. The parties then completed discovery, and Loftness
moved for summary judgment on the two remaining breach-of-contract claims. The
district court granted Loftness’s motion for summary judgment on both claims.
Twiestmeyer, Hood, and TAI appealed. On appeal, we affirmed the district court on
the counterclaims for breach of the Override Agreement and unjust enrichment, but
we vacated and remanded the grant of summary judgment on the counterclaim for
breach of the NDA. Loftness I, 742 F.3d at 845, 851. The district court again granted
Loftness’s motion for summary judgment as to breach of the NDA. Twiestmeyer,
Hood, and TAI again appeal.

                                          II.

       We review a district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the non-moving party. Montin v. Johnson, 636
F.3d 409, 412 (8th Cir. 2011). Summary judgment is appropriate if there is no
genuine issue of material fact, and the moving party is entitled to judgment as a
matter of law. Specht v. City of Sioux Falls, 639 F.3d 813, 819 (8th Cir. 2011). Our
subject matter jurisdiction in this case is based upon diversity of citizenship, and the
parties agree that Minnesota law applies. See S. Wine & Spirits of Nev. v. Mountain
Valley Spring Co., LLC, 646 F.3d 526, 531 (8th Cir. 2011).

      The sole issue before the district court in considering Loftness’s motion for
summary judgment on remand was whether there was any issue of material fact
regarding TAI’s claim that Loftness had breached the NDA by disclosing and using
confidential information when it agreed to have Brandt Industries sell Loftness-
manufactured grain-bagging equipment.




                                          -5-
       Critically, the district court determined that TAI’s argument that Loftness
breached the NDA by using TAI’s confidential information for Loftness’s own
benefit was not properly before the court because that argument was not asserted in
TAI’s counterclaims. We disagree. Those counterclaims posited three theories of
breach, namely, that Loftness breached the NDA by (1) “disclosing Confidential
Information to Brandt for purposes other than the Grain Bag Storage System
developed by Loftness and [TAI],” (2) “[u]sing Confidential Information in
competition [with] the business developed as part of the Project,” and (3) [f]ailing to
protect the Confidential information from being published or disclosed as to third
parties.” The second theory of breach raised in the counterclaims appears fairly to
encompass TAI’s use-for-its-own-benefit argument.

        Having disposed of the argument based on Loftness’s use of confidential
information for Loftness’s own benefit, the district court instead focused on whether
Loftness had disclosed TAI’s confidential information in violation of the NDA. The
language of the NDA, the district court found, protected the use or disclosure of
“Confidential Information” related to the “Project,” but the NDA did not prohibit the
use or disclosure of project-related information that was no longer confidential. The
district court then determined that the “Project” covered by the NDA was the
development and marketing of the new grain-bagging product line with the intention
of selling that product to the public, a definition supplied by TAI during the litigation
and reinforced by testimony from both parties. According to the district court, this
evidence conclusively showed that the parties intended the NDA to protect the
confidential information pertaining to the project in the event Loftness decided not
to develop, manufacture, and sell the new equipment; the parties did not intend to
provide twenty-year protection for information that was confidential at the time the
NDA was executed but later became publicly available when the grain-bagging
equipment openly was sold to the public. Additionally, the court found that the
information had, in fact, ceased to be confidential when the Loftness-built grain-
bagging equipment was sold to the public, as the equipment came with an owner’s

                                          -6-
manual sufficiently detailed to enable any other manufacturer to replicate the
equipment. The court reasoned that, because the confidential information initially
protected by the NDA was no longer confidential, that information was no longer
protected by the NDA when Loftness began its relationship with Brandt Industries.
Therefore, the district court concluded, there was no genuine issue of material fact
remaining as to Loftness’s alleged breach of the NDA, rendering summary judgment
for Loftness appropriate.

       On appeal, TAI argues that the NDA protected the information TAI disclosed
to Loftness for twenty years, regardless of whether the information subsequently
became publicly available. Resolution of this argument turns on interpretation of the
NDA. Under Minnesota law, “the primary goal of contract interpretation is to
determine and enforce the intent of the parties.” Motorsports Racing Plus, Inc. v.
Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 (Minn. 2003). “Where the parties
express their intent in unambiguous words, those words are to be given their plain and
ordinary meaning.” Id. “The general rule is that where the intention of the parties
may be gained wholly from the writing, construction of a contract is a question of law
for the court. However, where the terms are not clear and unambiguous, construction
becomes a question of fact unless extrinsic evidence is conclusive.” Martens v.
Minnesota Min. & Mfg. Co., 616 N.W.2d 732, 751 (Minn. 2000). “Whether the terms
of a contract are ambiguous is a question of law to be determined by the court.”
Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643 (Minn. Ct. App.
1985) (citing Noreen v. Park Constr. Co., 96 N.W.2d 33, 36 (Minn. 1959)). “A
contract is ambiguous if it is reasonably susceptible to more than one construction.”
City of Virginia v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn.
Ct. App. 1991) (emphasis in original).

      TAI contends that Loftness breached the NDA by using confidential
information for Loftness’s own benefit in its relationship with Brandt Industries while
the twenty-year term of the NDA was still in effect, even though TAI admitted that

                                         -7-
it no longer considered that information confidential at the time of Loftness’s alleged
breach. TAI argues that, at the time it entered the NDA and provided confidential
information to Loftness, TAI considered the information to be confidential and,
therefore, protected from future use or disclosure by Loftness for any purpose other
than the TAI-Loftness grain-bagging project, including any competitive use, such as
Loftness’s subsequent relationship with Brandt Industries. Loftness, in turn, argues
that it did not breach the NDA because it provides protection only for information
that remained confidential at the time of the alleged breach. According to Loftness,
the parties intended the NDA to protect TAI’s confidential information until the
successful manufacture and sale of the grain-bagging equipment rendered that
information no longer confidential or for twenty years if the grain-bagging project
never came to fruition. Under that interpretation, Loftness contends that it could not
have breached the NDA because TAI no longer considered the information at issue
confidential at the time of Loftness’s alleged breach. Despite these competing
interpretations of the meaning and implications of “confidential information,” neither
party argued before the district court that the NDA was ambiguous, and the district
court premised its reasoning on this seeming point of agreement, finding in favor of
Loftness’s interpretation. On appeal, however, “a reviewing court may make a
determination of whether a contract is ambiguous without deference to the trial
court’s determination.” Blackburn, 366 N.W.2d at 643.

       The NDA’s “Protection of Confidential Information” provision bound Loftness
to “not directly or indirectly disclose to any third party or use for its own benefit, or
use for any purpose other than the Project, any Confidential Information it receives
from [TAI].” Likewise, the competitive-business provision indicated that Loftness
agreed not to use any “confidential information in any way that could be construed
as being competitive of [TAI’s] business for a period of twenty (20) years after the
effective date of this agreement.” Thus, in order to violate either the protection or the
non-compete provisions, Loftness must have disclosed or used confidential



                                          -8-
information. In relevant part, the NDA defines “Confidential Information” to mean
“[s]uch information that [TAI] considers to be proprietary and/or confidential.”

       However, the terms of the contract do not specify a temporal vantage point
from which to make our confidentiality inquiry. We therefore find that the NDA is
ambiguous as to whether “considers to be confidential” means that TAI had to
consider the information to be confidential at the time the parties entered the NDA
or whether TAI was required to consider the information to be confidential at the time
of an alleged future breach. Although the district court rightly observes that the NDA
does not specify that it protects information TAI considers confidential at the time of
execution of the NDA, the NDA likewise does not specify that its protections cease
once the information becomes public. We consider it reasonable that TAI would seek
to prevent Loftness from using the confidential information it provided at the outset
from any competitive use for twenty years, even if the parties completed the project
of manufacturing and selling grain-bagging equipment to the public. Likewise, it
seems reasonable that the parties may have intended to protect TAI’s confidential
information only so long as it remained confidential. We note that the NDA does not
refer to termination at all, except by indicating that the agreement “shall remain
binding for twenty (20) years,” unless terminated “in writing signed by both parties.”

       Confronted with this apparent ambiguity, we turn elsewhere in the contract to
determine whether the ambiguity can be resolved. Boe v. Christlieb, 399 N.W.2d
131, 133 (Minn. Ct. App. 1987) (“Contracts must be construed as a whole, with the
parties’ intentions gathered from the entire instrument, not from isolated clauses.”).
Paragraph 2 of the NDA explicitly restricts use of confidential information “for any
purpose other than the Project”; however, the NDA’s definition of project provides
no further guidance in delineating the project’s contours. Faced with two reasonable
interpretations and unable to glean the parties’ intent “wholly from the writing,”
Martens, 616 N.W.2d at 751, we consider the NDA to be ambiguous as to the scope
of the parties’ intended protection of confidential information. See Boe, 399 N.W.2d

                                         -9-
at 133. Accordingly, “construction then becomes a question of fact for the jury unless
[extrinsic] evidence is conclusive.” Blackburn, 366 N.W.2d at 643.

       “To determine intent of the parties, the court looks at surrounding
circumstances and the parties’ own subsequent conduct.” Fredrich v. Indep. Sch.
Dist. No. 720, 465 N.W.2d 692, 695 (Minn. Ct. App. 1991). “The most probative
evidence is the actions of the parties afterwards.” Id. We first note that TAI has
defined “Project” throughout this litigation as comprising the development of the
sales of grain-bagging equipment. In relation to that purpose, TAI admits in its brief,
“If the Project was successfully completed, [TAI] and Loftness fully intended for
[TAI]’s grain-bagging concept to be manufactured and sold to the general public.”
The project thus culminated in the public availability of the Loftness-built grain-
bagging equipment. This equipment, in turn, came with a a detailed owner’s manual.
Twiestmeyer acknowledged that this owner’s manual would enable any other
manufacturer, including Brandt Industries, to replicate the Loftness-built grain-
bagging system—that is, the project, if successful, necessarily divulged TAI’s
confidential information. Once made public in this manner, TAI concedes in its brief
“that the information conveyed would no longer be ‘confidential’ in the traditional
sense of the word.”

      The fact that the parties made no effort to keep TAI’s confidential information
confidential, however, does not convince us that the parties intended for the NDA’s
protections to end. Even though the non-disclosure provision might no longer apply,
the non-use provision still might have prevented Loftness from using this information
for twenty years “in a[] way that could be construed as being competitive of [TAI’s]
business”—if the NDA is interpreted to protect information TAI considered to be
confidential at the time it disclosed the information to Loftness.

      Loftness offers that TAI failed to object to the disclosure or use of its
confidential information between the date when Loftness disclosed the Brandt

                                         -10-
Industries relationship and the date Loftness ceased making payments to TAI under
the Override Agreement and that this delay reflects a “course of performance
accepted or acquiesced in without objection” that is “relevant to determine the
meaning of the agreement.” See Oskey Gasoline & Oil Co., Inc. v. OKC Refining,
Inc., 364 F. Supp. 1137, 1143 (D. Minn. 1973) (quoting Minn. Stat. Ann. § 336.2-208
(1966)). This failure to object, Loftness continues, shows that the parties intended
the NDA to protect TAI’s confidential information for the twenty-year duration of the
agreement or until accomplishment of the manufacture and sale of the grain-bagging
equipment—whichever happened first. This evidence, however, does not
conclusively refute TAI’s argument that the NDA protected TAI’s confidential
information from Loftness’s use “for its own benefit,” “for any purpose other than the
Project”—that is, for a use that benefitted Loftness without also benefitting TAI.
Indeed, until Loftness stopped paying TAI, any use of TAI’s once-confidential
information for Loftness’s benefit through the Brandt Industries relationship also
benefitted TAI via the override payments. TAI thus reasonably might not have
“construed as being competitive of [TAI]’s business” Loftness’s use of TAI’s
confidential information while Loftness continued to make the override payments.

      The district court found dispositive the NDA’s lack of any provision relating
to payment, observing that the parties instead chose to address TAI’s compensation
through the Override Agreement, an agreement we already held Loftness had not
breached.2 Loftness I, 742 F.3d at 853. We disagree. The NDA bans Loftness’s use
of TAI’s confidential information “for [Loftness’s] own benefit” or in a way that
“could be construed as being competitive of [TAI]’s business.” As mentioned above,
however, so long as Loftness continued to pay TAI, TAI reasonably may have
considered Loftness’s use of TAI’s confidential information as part of the Brandt
Industries relationship to be a non-competitive use. Under this view, had Loftness


      2
      The district court addressed this argument in the alternative, having found
TAI’s use-for-its-own-benefit argument not before it, as noted above.

                                        -11-
wished to continue to use TAI’s confidential information in a potentially competitive
manner, Loftness could have continued to enter into ancillary payment agreements
with TAI. Because the extrinsic evidence is not conclusive, the fact question of the
parties’ intent should have gone to a jury, and summary judgment was inappropriate.
See Blackburn, 366 N.W.2d at 643.

                                         III.

      For the reasons set forth above, we vacate the district court’s grant of summary
judgment for Loftness on TAI’s claim for breach of the NDA and remand for further
proceedings.           ______________________________




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