DA 23-0218

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 233

KEVIN BARBER,

 Plaintiff and Appellant,

 v.

BRADFORD AQUATIC GROUP, LLC,

 Defendant and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV-23-028(e)

Honorable Danni Coffman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nicholas LeTang, Passamani & LeTang, PLLC, Helena, Montana

For Appellee:

Natasha P. Jones, Elliott D. McGill, Boone Karlberg, P. C., Missoula, 

Montana

Submitted on Briefs: September 6, 2023

 Decided: December 5, 2023

Filed:

__________________________________________

Clerk

12/05/2023

Case Number: DA 23-0218
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Kevin Barber (Barber) sued Bradford Aquatic Group, LLC (Bradford) for claims 

arising from the termination of his employment. The Eleventh Judicial District Court, 

Flathead County, dismissed Barber’s claims without prejudice for improper venue,

applying the choice-of-law and forum selection clauses contained in Barber’s employment 

agreement. Barber appeals, arguing that Montana law should apply notwithstanding the 

agreement’s contrary provision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Bradford, a North Carolina limited liability corporation with its principal place of 

business in Brunswick County, North Carolina, engages in the sale of pools and hot tubs. 

Sometime in 2018, Bradford contacted Barber about the possibility of employment. In 

2019, Bradford hired Barber as a Regional Business Development Manager for its Rocky 

Mountain region, which included Montana, Idaho, and Wyoming.

¶3 Bradford and Barber engaged in substantial negotiations leading up to Barber’s 

employment with the company. In July 2019, the parties executed an employment

agreement (the Agreement).1 Section 8(f) of the Agreement contains a choice-of-law and 

forum selection clause. It provides:

(f) Governing Law and Venue. Notwithstanding the principles of 

conflicts of laws or specific laws to the contrary, North Carolina law shall 

govern and control the validity, interpretation, performance, and enforcement 

of this Agreement and its Addendum. Any action, claim, dispute, or 

proceeding arising from or relating to this Agreement shall exclusively be 

instituted and prosecuted only in the courts located in the County of 

1 The parties have different views of the date they executed the Agreement. That specific date is 

not relevant to our decision in this case.
3

Brunswick, State of North Carolina, or the federal courts of the Eastern 

District of North Carolina, and each party submits to the jurisdiction and 

venue of such courts and waives any defense relating to such personal 

jurisdiction and venue.

During his employment, Barber resided and paid income taxes in Montana. Bradford paid 

payroll taxes for Barber’s employment in Montana.

¶4 In January 2022, Bradford terminated Barber’s employment. Barber sued Bradford 

alleging, among other things, that Bradford violated the Montana Wrongful Discharge from 

Employment Act (WDEA). Citing the Agreement, Bradford moved under M. R. Civ. P. 

12(b)(3) to dismiss the suit for lack of proper venue. The District Court granted Bradford’s 

motion. Barber appeals.

STANDARDS OF REVIEW

¶5 When a contract contains both choice-of-law and forum selection provisions, we 

first determine whether the choice of law clause is valid. Polzin v. Appleway Equip. 

Leasing, Inc., 2008 MT 300, ¶ 13, 345 Mont. 508, 191 P.3d 476. We review a district 

court’s determination of applicable law de novo. Harrington v. Energy West Inc., 2015 

MT 233, ¶ 7, 380 Mont. 298, 356 P.3d 441. Whether a Montana district court is the proper 

venue is a question of law requiring application of facts to the applicable law. See Deichl

v. Savage, 2009 MT 293, ¶ 6, 352 Mont. 282, 216 P.3d 749. This Court’s review of a 

determination of proper venue is plenary. Diest v. Thornton, 2009 MT 21, ¶ 7, 349 Mont. 

94, 201 P.3d 800. 

DISCUSSION

¶6 1. Is the choice-of-law provision in Barber’s employment agreement valid?
4

¶7 This Court determines choice-of-law questions through the approach described in 

the Restatement (Second) of Conflict of Laws. Phillips v. GMC, 2000 MT 55, ¶¶ 5, 23, 

298 Mont. 438, 995 P.2d 1002. The flexible approach of the Restatement calls for 

application of its principles on an issue-by-issue basis. See Buckles v. BH Flowtest, Inc., 

2020 MT 291, ¶ 11, 402 Mont. 154, 476 P.3d 422. Barber’s claims raise only questions 

sounding in contract. We therefore apply the Restatement rules applicable to contract 

disputes.2

¶8 We rely on the Restatement §§ 6, 187, and 188 for determining the validity of choice 

of law clauses. Polzin, ¶ 14. When a contract includes a choice-of-law provision, we begin 

with the Restatement § 187 to determine the provision’s validity. Polzin, ¶ 14 (citing

Modroo v. Nationwide Mut. Fire Ins., 2008 MT 275, ¶ 54, 345 Mont. 262, 191 P.3d 389). 

The Restatement § 187 provides:

(1) The laws of the state chosen by the parties to govern their contractual 

rights and duties will be applied if the particular issue is one which the parties 

could have resolved by an explicit provision in their agreement directed to 

that issue.

(2) The law of the state chosen by the parties to govern their contractual rights 

and duties will be applied, even if the particular issue is one which the parties 

could not have resolved by an explicit provision in their agreement directed 

to that issue, unless either

2 Barber’s claims for wrongful discharge, breach of contract, and bad faith are contract-based 

claims. See Harrington, ¶ 17 (explaining that contract conflict-of-law rules apply to WDEA 

wrongful discharge claims). On appeal, Barber does not argue, and we will not address, whether 

tort-based conflict-of-laws principles should apply to his claims for unjust enrichment and punitive 

damages. See McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 20, 369 Mont. 433, 300 P.3d 679 

(stating it is not the responsibility of this Court “to develop arguments on behalf of parties to an 

appeal, nor are we to guess a party’s precise position, or develop legal analysis that may lend 

support to his position”) (citations omitted). 
5

(a) the chosen state had no substantial relationship to the parties or the 

transaction and there is no other reasonable basis for the parties’ choice, or

(b) application of the law of the chosen state would be contrary to a 

fundamental policy of a state which has a materially greater interest than the 

chosen state in the determination of the particular issue and which, under the 

rule of § 188, would be the state of the applicable law in the absence of an 

effective choice of law by the parties.

(3) In the absence of a contrary indication of intention the reference is to the 

local law of the state of the chosen law.

¶9 Considering the Restatement § 187(1), parties generally are free to determine the 

terms of their dealings. See the Restatement (Second) of the Conflict of Laws § 187 cmt. c. 

In Montana, parties enjoy a broad freedom to contract around the terms of their private

dealings so long as their agreements do not conflict with public policy. Winter v. State 

Farm Mut. Auto Ins. Co., 2014 MT 168, ¶ 26, 375 Mont. 351, 328 P.3d 665 (citing 

Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20, 318 Mont. 103, 79 P.3d 250). 

Through extensive negotiations, Bradford and Barber explicitly agreed to be governed by 

North Carolina law. Barber does not claim that he was unable to bargain for terms in the 

Agreement. It was within the parties’ prerogative to determine that North Carolina law 

would govern their relationship. The particular issue raised by Barber—whether Montana 

or North Carolina law should apply—is resolvable by the choice-of-law clause contained 

in the Agreement. Under the Restatement § 187(1), North Carolina law applies to Barber’s 

claims.

¶10 Even if Barber had a plausible argument that the issue he now raises is not one the 

parties could have resolved by an explicit provision in the Agreement, we follow
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Restatement § 187(2) and apply the law of the state chosen by the parties unless “(1) if, but 

for the choice-of-law provision, Montana law would apply under § 188 of the Restatement; 

(2) if Montana has a materially greater interest in the particular issue than the state chosen 

by the parties; and (3) if applying the state law chosen by the parties would contravene a 

fundamental policy of Montana.” Modroo, ¶ 54.

a. Applicability of Montana Law

¶11 The first prong of the Modroo test requires that this Court determine whether 

Montana law would apply under the Restatement § 188 had the parties made no valid 

choice-of-law election in their contract. Modroo, ¶ 54. In relevant part, that section

provides:

(1) The rights and duties of the parties with respect to an issue in contract

are determined by the local law of the state which, with respect to that issue, 

has the most significant relationship to the transaction and the parties under 

the principles stated in § 6.

The relevant portion of the Restatement § 6 states, “(1) A court, subject to constitutional 

restrictions, will follow a statutory directive of its own state on choice of law.”

¶12 Montana’s statutory directive governing contractual choice-of-law is contained in 

§ 28-3-102, MCA. It requires this Court to interpret a contract pursuant to the law of the 

place where it is to be performed or, if no such place is indicated, pursuant to the law of 

the place where the contract was made. Harrington, ¶ 18; Polzin, ¶ 16. In Polzin, we 

determined that a contract between a truck seller and buyer did not contain a specified place 

of performance. Polzin, ¶ 18. There, the seller argued that the place of performance of a 

sales contract was the place of payment, while the buyer argued that because the underlying 
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dispute regarded a warranty of a truck in Montana, Montana was the place of performance. 

Polzin, ¶¶ 17-18. Barber argues that our analysis should center on whether Montana was 

an anticipated place of performance under the Agreement. Barber alleges that Montana is 

the state with the most significant relationship to the transactions because (1) Montana was 

one of three states listed as Barber’s territory in the Agreement, (2) Bradford was aware of 

Barber’s activity in Montana, and (3) Bradford remitted payroll taxes to Montana and 

mailed paystubs to Barber’s Polson address. See the Restatement (Second) of the Conflict 

of Laws § 188(1). Therefore, Barber maintains, Montana law would apply to the contract, 

but for the choice-of-law provision. See Modroo, ¶ 57. Bradford responds that, while 

Barber did work and reside in Montana, the Agreement did not contemplate Montana as 

the only place of performance. At a minimum, the Agreement contemplated performance 

in Montana, Idaho, and Wyoming, and it provided the possibility for performance in any 

county of any state. Bradford also argues that Barber’s reliance on Modroo is misplaced 

because even in that case, where we found Montana was the place of performance of an 

automobile insurance policy covering accidents in multiple states, we chose not to apply 

Montana law to the contract. See Modroo, ¶¶ 63, 72.

¶13 Despite Barber’s emphasis that Montana was an “anticipated place of performance,” 

the Agreement does not expressly state that performance was anticipated in Montana. The 

Agreement provides that Barber would be paid three percent of gross sales made in a 

three-state region that included Montana, Wyoming, and Idaho. The plain language of the 

Agreement suggests only that Montana was part of Barber’s work territory. Indeed, the 
8

Agreement contemplates that Barber’s work territory had the potential to encompass any 

state in the nation. Under the addendum to the Agreement, signed the same day as the 

Agreement, Barber’s “Relevant Market” is defined as:

1. The United States; or

2. Any state in the United States in which Employer engages or has engaged 

in Employer’s Business during the one-year period immediately preceding 

the termination of the Employment Agreement; or

3. Any state in the United States in which Employee has performed services 

(including overseeing the activities of Employer’s employees or contractors) 

on behalf of Employer during the one (1) year period immediately preceding 

the termination of the Employment Agreement; or

4. Montana; or

5. Wyoming; or

6. Idaho; or

7. Any county in any state in the United States in which Employee engages 

or has engaged in Employer’s Business during the one-year period 

immediately preceding the termination of the Employment Agreement; or 

8. Any county in any state in the United States in which Employee has 

performed services (including overseeing the activities of Employer’s 

employees or contractors) on behalf of Employer during the one (1) year 

period immediately preceding the termination of the Employment 

Agreement.

Like the contract in Polzin, where no place of performance was explicitly defined, the fact 

that Barber’s territory included Montana equally with two other identified states and as one 

among a potentially nationwide scope of work is insufficient for us to infer that Montana 

was the place of performance.

¶14 Because the Agreement does not include a specific place of performance, we turn 

to where the contract was made. Section 28-3-102, MCA. On this point, the parties agree

on the historical facts: when the Agreement was made, Barber resided in Nevada, and 

Bradford was incorporated and headquartered in North Carolina. Barber argues that his 
9

intention to relocate from Nevada to Montana is sufficient to consider Montana as the place 

of contracting. This argument, however, is refuted by Polzin. In Polzin it was clear that 

Polzin intended to return to Montana after purchasing the truck in Washington. See Polzin, 

¶¶ 4-6. We found nonetheless that Washington law applied, as it was the place of 

contracting. Polzin, ¶ 18. The same holds true here. Irrespective of Barber’s intentions

for the future, neither he nor Bradford was in Montana when they executed the Agreement.

Barber has not established that, but for the choice-of-law clause in the Agreement, Montana 

law would apply.

b. Montana’s Interest in the Issue

¶15 Choice-of-law principles require further that Montana have a materially greater 

interest in the issue than that of the state the parties selected. Restatement (Second) of the 

Conflict of Laws § 187(2)(b). To determine whether Montana’s interest in an issue is 

materially greater than that of the parties’ chosen state, we consider the contacts listed in 

the Restatement § 188(2). Modroo, ¶ 59. Those contacts are: (a) the place of contracting,

(b) the place of negotiation of the contract, (c) the place of performance, (d) the location of 

the subject matter of the contract, and (e) the domicil, residence, nationality, place of 

incorporation and place of business of the parties. The Restatement (Second) of the 

Conflict of Laws §§ 188(2)(a)-(e). 

¶16 Barber argues that all five contacts of § 188(2) weigh in favor of applying Montana 

law. As to the place of contracting and the place of negotiation, Barber asserts that Nevada 

holds no relation to the Agreement and that because he intended to move to Montana, those 
10

factors should favor application of Montana law. Because Montana was a contemplated 

place of performance, factor (c) supports Montana law. The Agreement’s noncompete 

clause shows Montana was a situs of risk the Agreement meant to guard against. Finally, 

Barber argues that because he no longer intended to remain in Nevada and had plans to 

relocate to Montana, we should consider him to be domiciled in the state for purposes of 

the contact in factor (e). In response, Bradford asserts that because Barber was primarily 

in Nevada and only intended to move to Montana sometime after entering the Agreement, 

none of the factors support a finding that Montana law applies. 

¶17 Barber has not shown that Montana’s interest is materially greater than North 

Carolina’s. The record indicates that, at the time of negotiating and ratifying the contract, 

Barber and Bradford were in Nevada and North Carolina respectively. Factors (a) and (b) 

of Restatement § 188 therefore lend minor support to the application of North Carolina 

law. Montana has an obvious interest in contracts that are to be performed within the 

borders of the state. Modroo, ¶ 62. But the place of performance carries reduced 

significance where it is not established at the time of contracting. Modroo, ¶ 62. As 

discussed above, Montana was only one of several contemplated places of performance 

under the Agreement. When Barber and Bradford entered the Agreement, it was equally 

likely that Montana, Idaho, or Wyoming would be the situs of performance. Factor (c) of 

§ 188(2) therefore does not favor Montana. Further, where, as here, a contract implicates 

several states in its creation or performance, factors (a), (b), and (c) carry little or no weight 

in the analysis. Restatement (Second) of the Conflict of Laws § 188 cmt. e. Factor (d), the
11

location of the subject matter of a contract, is significant only when the contract concerns

a physical thing or localized risk—the Agreement does neither. Restatement (Second) of 

the Conflict of Laws § 188 cmt. e.; Modroo, ¶ 60. Finally, the domicil and residence of 

the parties does not favor Montana. Bradford was incorporated and headquartered in North 

Carolina. Barber, at the time of contracting, was a Nevada resident, and he became a 

Montana resident only after he joined the company.

¶18 To the extent that Barber performed work under the Agreement in this state, 

Montana has an interest in the issues involved. Modroo, ¶ 63. Barber has not shown, 

however, that Montana has a materially greater interest in governing the Agreement than 

does North Carolina—his employer’s home state and the state chosen by the parties.

¶19 The Restatement analysis under § 187 is a conjunctive test requiring a party 

establish that (1) but for the contractual choice of law, Montana law would apply, (2) 

Montana has a materially greater interest than the state chosen by the parties, and (3) 

applying the state law chosen by the parties would violate a fundamental Montana policy. 

Tenas v. Progressive Preferred Ins. Co., 2008 MT 393, ¶ 34, 347 Mont. 133, 197 P.3d 990; 

Modroo, ¶ 54. Because Barber has not shown that Montana law would apply or that 

Montana has a materially greater interest in the issue, our analysis ends there. 

¶20 The parties in this case explicitly determined that their dealings were to be governed 

by North Carolina law. Our analysis under the three-factor Modroo test and the applicable 

sections of the Restatement lead us to agree with the District Court that the choice-of-law 

provision in the Agreement is valid and that North Carolina law applies.
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¶21 2. Is the forum selection clause in Barber’s employment agreement valid?

¶22 Having determined that the choice-of-law provision in the Agreement is valid, we 

consider whether the venue selection clause is enforceable under North Carolina law. 

North Carolina courts “generally enforce mandatory forum selection clauses.” Lendingtree 

v. Anderson, 747 S.E.2d 292, 297 (N.C. Ct. App. 2013). In 1992, the North Carolina 

Supreme Court held that venue selection provisions in private contracts were 

presumptively valid and could be overcome only by showing the provision was “the 

product of fraud or unequal bargaining power or that enforcement of the clause would be 

unfair or unreasonable.” Perkins v. CCH Computax, Inc., 423 S.E.2d 780, 784 (N.C. 1992) 

(superseded in part by N.C. Gen. Stat. § 22B-3 (1993)). Following Perkins, in 1993, the 

North Carolina Legislature enacted N.C. Gen. Stat. § 22B-3. The current version of that 

law provides:

Except as otherwise provided in this section, any provision in a contract 

entered into in North Carolina that requires the prosecution of any action or 

the arbitration of any dispute that arises from the contract to be instituted or 

heard in another state is against public policy and is void and 

unenforceable. This prohibition shall not apply to non-consumer loan

transactions or to any action or arbitration of a dispute that is commenced in

another state pursuant to a forum selection provision with the consent of all

parties to the contract at the time that the dispute arises.

See SED Holding, LLC v. 3 Star Props., LLC, 784 S.E.2d 627, 631 (N.C. Ct. App. 2016). 

A plain text reading of § 22B-3 leads us to conclude that the forum selection clause of the

Agreement is not affected by North Carolina statute. The statute speaks only to a

contractual provision “that requires the prosecution of any action . . . to be instituted or

heard in another state.” N.C. Gen. Stat. § 22B-3 (2023) (emphasis added). The venue
13

selection clause of the Agreement clearly contemplates prosecution of any claims between

Barber and Bradford within North Carolina. Barber does not challenge the validity of the

clause under North Carolina law nor does he claim that the clause was the result of duress,

fraud, or undue influence, or that it is unreasonable. We agree with the District Court that

the forum selection clause is valid under Perkins and enforceable. 

CONCLUSION

¶23 Barber and Bradford negotiated and entered into a valid employment contract. The 

parties’ choice-of-law provision in that contract is enforceable under this Court’s approach 

under the Restatement, and the forum selection provision is enforceable under North 

Carolina law. We affirm.

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ DIRK M. SANDEFUR

/S/ JIM RICE