Junkermier, Clark, Campanella, Stevens, P.C. v. Alborn, Uithoven, Riekenberg, P.C.

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
34