No. 33-366 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

K. ROBERT FOSTER, 

Plaintiff and Respondent, 

REALTY TITLE COMPANY, INC., 

a Montana Corp., 

Defendant and Appellant. --.-------------------------------------- 

SALTY TITLE COMPANY, INC., 

a Montana Corp. , 

Third Party Plaintiff and Appellant, 

CHICAGO TITLE INSURANCE CO., 

a corp., and LAND TITLE COMPANY, 

a corp. , 

Third Party Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Leonard H. Langen, Judge presiding, 

and The Honorable Jack Shanstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moulton Law Firm; William S. Mather, Billings, Montana 

For Respondents: 

Anderson-Brown Law Firm; Richard F. Cebull, Billings, 

Montana (Chicago Title Ins.) 

Anderson, Edwards & Molloy; A. Clifford Edwards, 

Billings, Montana (Foster & Land Title Co.) 

Submitted on Briefs: January 5, 1984 

Decided: April 9, 1984 

Filed: 

- -- - Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Realty Tit1.e Company appeals from a judgment in favor of 

K. Robert Foster, Chicago Title Insurance Company, and Land 

Title Company entered in the District Court for the Tenth 

Judicial District, Fergus County. We affirm the District 

Court. 

In 1974, K. Robert and Barbara Foster together with 

Robert and Anita Johnson, formed Realty Title Company, an 

abstract and title insurance business. Each held 25 percent 

of the stock of the corporation which maintained offices in 

Fergus, Judith Basin and Petroleum counties. Realty Title 

and Chicago Title Insurance Company entered into a 

nonexclusive underwriting agreement whereby Realty Title 

acted as Chicago Title's agent. 

In 1979, K. Robert Foster (hereinafter Foster) and the 

Johnsons entered into the following agreement: 

"TENDER OF STOCK 

"THE UNDERSIGNED, K. ROBERT FOSTER, owner of 

twenty-five (25) shares of the capital stock of 

REALTY TITLE COMPANY, a Montana corporation, of 

Lewistown, Montana, herewith tenders that stock to 

the corporation provided that the corporation 

acknowledges that the book value of that stock on 

the date of this tender is Sixty-five Thousand 

Dollars ($65,000.00) and that the corporation agree 

to pay said amount for said stock 29% down upon 

acceptance of this tender with the remaining 

balance amortized in equal monthly payments over 

ten (10) years at 8% interest from date, the first 

monthly installment to be January 1, 1980. Full 

prepayment privileges will be granted on notice. 

"It is acknowledged that the undersigned possesses 

information and skills acquired in the course of 

ownership of the shares tendered, and that a 

substantial factor in computing the book value of 

those sha-res is the assurance herewith given that 

the undersigned will not for ten (10) years engage 

directly or indirectly in the abstracting or title 

insurance business in the Montana counties of 

Fergus, Judith Basin and/or Petroleum nor will the 
undersigned instigate, encourage, advise, or 

participate a.s an employee or part owner of any 

such competing business in any of those counties. 

Accordingly the undersigned herewith proposes and 

agrees that the remaining balance due for said 

shares shall be reduced by one-third (1/3) in. the 

event any such competing business establishes 

offices in such county or counties, unless, upon 

the esta.blishing of such office the undersigned 

proves by affidavit that the terms of the foregoing 

assurance have not been violated. The terms of 

such assurance are independent of the terms of any 

similar assurance provided the corporation by any 

other stockholder. 

"This tender is conditional upon the corporation's 

execution of a Security Agreement in due form 

pledging the assets of the corporation as security 

for the payment of unpaid balances for the stock 

tendered here and in any other tender of even date. 

"The undersigned agrees that only the remaining 

shareholders and directors of Realty Title Company 

may vote upon the question of acceptance of this 

tender, and that forthwith upon such acceptance the 

the undersigned will assign in blank the share so 

tendered and which are currently escrowed with the 

Northwestern Rank of Lewistown. 

"DATED this 30th day of September, 1979. 

"/s/ K. R-ohert Foster" 

"ACCEPTANCE 

"REALTY TITLE COMPANY, a Montana corporation 

of Lewistown, Montana, upon due resolution by its 

board of directors with ratification by the 

stockholders, herewith accepts the foregoing tend-er 

of stock on the conditions and obligations set 

forth herewith. 

"DATED This 30th day of September, 1979. 

"ATTEST: REALTY TITLE COMPANY 

"/s/Anita A. Johnson BY: /s/Robert L. Johnson 

Secretary Vice President" 

The agreement was prepared by Robert L. Johnson pursuant 

to the desire of Foster to sell his shares and the desire of 

the Johnsons to have "an effective no direct or indirect 

competition" provision. There was also further agreement, as 
noted in a September 28, 1979 letter from Foster's attorney 

to Robert Johnson, that: 

". . . The non-competition provision shall be so 

worded that any direct or indirect competition by 

Bob Foster with Rea-lty Title Company during the 

contract period will automatically result in a 

reduction of the unpaid balance due under the 

contract of one-third. However, such a red.uction 

will not be applicable if Bob is not involved in a 

competing title agency or was not involved in 

promoting its establishment in Lewistown, either 

directly or indirectly.. . ." 

Sometime after the execution of the agreement, Foster 

began to organize Land Title Company, a title insurance 

business, and opened an office in Lewistown in the later part 

of 1980. Chicago Title entered into an underwriting 

agreement with Land Title and then canceled its agreement 

with Realty Title. 

On June 27, 1980, Foster filed a complaint asking for 

declaratory relief as to the Tender of Stock Agreement. He 

made three claims: (1) that the provision of the agreement 

language regarding competition should be declared void 

pursuant to section 28-2-703, MCA, which prohibits contracts 

in restraint of trade; (2) that if the court does not find 

the competition agreement void it should declare that the 

rights of Realty Title Company are limited to those provided 

in the agreement; and (3) that the court should declare the 

amounts due under the agreement. 

Realty Title answered a-nd counterclaimed, alleging that 

Foster defrauded Realty Title and made misrepresentations by 

agreeing to not compete and then proceeding to set up a 

competing concern. Realty Title a.sked the court to reform 

the agreement so as to make it lawful and equitable. Foster 

answered, alleging again that the agreement should be 

declared void. 
Foster filed a motion for summary judgment on July 16, 

1981, with respect to his claim that the agreement was void 

according to Section 28-2-703, MCA. Realty Title filed a 

motion for summary judgment on the same issue. Foster then 

conceded that Realty Title's position that the agreement was 

valid and enforceable as a covenant not to compete was 

correct and the court granted Realty Title's motion. 

Foster then moved for summary judgment on his second 

claim that the rights of the parties are limited to those 

found in the agreement. On November 13, 1981, Realty Title 

filed a third party complaint asking that Chicago Title be 

enjoined from underwriting any insurance in competition with 

Realty Title. They also asked that Chicago Title and Land 

Title be found jointly and severally liable with Foster for 

damages due to breach of the covenant not to compete. Realty 

Title then filed an answer and amended counterclaim adding 

the claim against Foster which involved Chicago Title. 

On April 1, 1982, Realty Title filed an application for 

preliminary injunction to restrain Foster and Chicago Title 

from engaging or competing in the title insurance business in 

Fergus, Judith Basin and Petroleum counties. The District 

Court on May 24, 1982, granted Foster's motion for summary 

judgment on his second claim, dismissed Realty Title's cl-aim 

against Chicago Title and Land Title and denied Realty 

Title's application for preliminary injunction. A judgment 

to that effect was filed July 6, 1982. 

The District Court continued the date of the trial in 

this case pending the outcome of the application for writ of 

supervisory control filed with this Court by Realty Title. 

On December 13, 1982, this Court denied the petition. 
The District Court calculated the date from which the 

one-third price reduction should be imposed on Foster in an 

opinion and order dated May 19, 1983, and the corresponding 

judgment was filed June 21, 1983. Realty Title appeals both 

the July 6 and June 21 judgments, raising the following 

issues: 

1. Did the District Court err by granting Foster 

summary judgment limiting Realty Title ' s remedy to that 

provided in the agreement? 

2. Did the District Court err by rejecting Realty 

Title's application for a temporary injunction? 

3. Did the District Court err by granting Foster's and 

Chicago Title's summary judgments on the tort claims? 

We will consider the first two issues together. 

According to Rule 56 (c) , M.R.Civ.P., the District Court 

correctly granted the motion for summary judgment if there 

were no genuine issues as to any material fact and the moving 

party was entitled to the judgment as a matter of law. 

R.ealty Title argues that, as a matter of law, it was entitled 

to have Foster and Land Title temporarily enjoined from 

competing with Realty Titl-e. It contends that the intention 

of the parties, in executing the agreement, wa-s not to 

preclude other remedies in the event of breach. 

What is persuasive in this case is that the language of 

the tender of stock agreement is clear and unambiguous. It 

specifically provides an agreed-upon remedy for breach of the 

agreement. The evidence shows that the provision was the 

result of negotiations between the parties. Both K. Robert 

Foster and Robert Johnson are attorneys and the agreement was 

drafted by Johnson. Given the clear statement of the 

parties' agreement a.s to an appropriate remedy upon breach by 
Foster, we turn to the 1-aw regarding the granting of 

injunctions. 

"The universal test of the jurisdiction of a court 

of equity to issue injunctions is the absence of a 

legal or other remedy by which the complainant 

might obtain the full relief to which the facts a.nd 

circumstances entitle him, and this is likewise the 

test of its power to restrain breaches of 

contracts. If the court is satisfied that there is 

another adequate remedy, it will generally leave 

the complainant to it and refuse to interfere to 

restrain viola-tion of the agreement.. . ." 42 

Am.Jur. Injunctions § 93. 

The remedy provided in the tender of stock agreement was an 

adequate remedy in the event of breach and Realty Title was 

therefore not entitled to an order restraining Foster and 

Land Title. 

We are not unaware of the rule of Glacier Campgrounds v. 

Wild Rivers, Inc. (1978), 182 Mont. 389, 597 P.2d 689, which 

states that in the absence of a contractual provision 

expressly limiting the available remedies to that provided, a 

party may pursue other available remedies. It could be said 

that j.n this agreement, the parties took the first step of 

providing an agreed-upon remedy but that they did not take 

the second step of specifically limiting the remedies to the 

one provided. We hold tha.t it was not necessary for the 

parties to take that second step in this case. Here, by 

allowing the alternative of iniunctive relief, the District 

Court would have in effect, nullified the remedy provision of 

the agreement by allowing other remedies before it was shown 

that the one provided was inadequate. It is undisputed that 

a court must interpret a contract such that the intentions of 

the parties a.re given effect and such that the contract will 

be lawful, operative and definite. Sections 28-3-301 and 

28-3-201, MCA. Applying the rule of Gla.cier here would 

defeat the evident intentions of the parties. Thus, to 
facilitate the intentions of the parties, the remedy provided 

j-n the contract must be declared to be the proper remedy. 

The summary judgment was properly granted. 

As to the last issue, Realty Title contends that the 

District Court erred by granting Foster's and Chicago Title's 

summary judgments on the tort claims. In its original 

answer, Realty Title alleged fraud by Foster and I.ater 

charged Chicago Title with aiding and assisting Foster in 

breaching the agreement and interfering with contract rights. 

The District Court obviously found no material facts to 

support Realty Title's claim that Foster was guilty of fraud 

in executing the tender of stock agreement. The court did 

conclude that: 

". . . the language of the stock tender agreement 

clearly and plainly provides for a reduction in the 

purchase price of that stock . . . and . . . such 

language is clear, plain, unambiguous, and all 

other remedies sought by Realty Title Company are 

inconsistent and barred--Realty Title Company, 

through the agreement prepared sulostantially, if 

not entirely, by Robert Johnson, expressly provided 

a remedy for itself . . ." 

The District Court also found that Chicago Title properly 

terminated the nonexclusive agency agreement and properly 

entered into an underwriting agreement with Land Title. The 

court concluded that Realty Title's claims of conspiracy and 

interference of contractual rights were unfounded. Again, 

without a showing that there was a genuine issue as to a 

material fact or that the parties were not entitled to the 

summary judgments as a matter of law, they will stand. Rule 

56 (c) , M.R.Civ.P. 

The judgment is affirmed. 

/ Justice 
We Concur: 

4. &.&- 

Chief Juskice