Present: All the Justices
PEGGY A. MUSSELMAN, EXECUTOR OF THE
ESTATE OF ROBERT C. YOUNG, ET AL.
v. Record No. 992887 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 15, 2000
THE GLASS WORKS, L.L.C., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
In this appeal, we consider the issue whether the death of
a party to a non-competition agreement, which was executed as
part of the sale of a business, relieved the purchaser of the
business of its obligation to make payments under the agreement.
The facts in this case are undisputed. In July 1995, The
Glass Works, L.L.C. (Glass Works) entered into an Asset Purchase
Agreement (the purchase agreement) with B & L Auto Glass &
Mirror, Inc. (B & L Auto) and its principals, Robert C. Young,
Peggy A. Musselman, and Marian L. Gray (collectively, the
sellers). Under the purchase agreement, Glass Works purchased
from the sellers, among other things, the inventory, equipment,
and business name of B & L Auto in Roanoke. *
In paragraph 2 of the purchase agreement, Glass Works
agreed to pay B & L Auto a total purchase price of $515,000. As
provided in that paragraph, the purchase price was payable as
follows: $1,000 deposit, $114,000 cash at closing, $340,000 in
the form of a secured promissory note to the sellers, and a
total of $60,000 in payments to Young, Musselman, and Gray under
three non-competition agreements.
The non-competition agreements were executed at the same
time as the purchase agreement. Young agreed in his non-
competition agreement with Glass Works (the non-competition
agreement) not to engage for five years in any business similar
to that of B & L Auto as an owner, shareholder, employee, or
consultant within a 100-mile radius of Roanoke. The non-
competition agreement provided that "in consideration of
[Young's] agreements," Glass Works would pay Young $615 per
month for 60 months, for a total payment of $36,900. The
principals of Glass Works, Lury W. Goodall, Jr., Charles C.
Nimmo, and Michael E. Puckett, also executed a Guarantee
Agreement, personally guaranteeing Glass Works' obligations
under the purchase agreement, the promissory note, and the non-
competition agreements.
After its purchase of the business in July 1995, Glass
Works began making the monthly payments to Young under the non-
competition agreement. When Young died on April 18, 1998, Glass
Works stopped making the payments. Musselman qualified as
executor of Young's estate and filed this breach of contract
*
After the sale, B & L Auto Glass & Mirror, Inc. changed its
corporate name to Bobs, Inc.
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action against Glass Works, Goodall, Nimmo, and Puckett
(collectively, the defendants), seeking recovery of the amounts
allegedly due Young's estate under the non-competition
agreement.
Musselman alleged in her motion for judgment that the
amount due under the non-competition agreement was "part of the
purchase price" for B & L Auto and, thus, did not abate when
Young died. She also alleged that B & L Auto agreed to
"separate the value for the Non-Competition Agreement out of the
principal balance of the [promissory] note . . . to allow [Glass
Works], at its request, to report a lower 'notes payable' for
credit reporting purposes."
The parties submitted the case to the trial court on
stipulated evidence. The trial court ruled that the purchase
agreement was ambiguous because its initial declaration, that
the purchase price was consideration for the sale of the
specified business assets, conflicted with the purchase
agreement's later recitation that the purchase price included
consideration for the non-competition agreements. The trial
court concluded from this language that the parties intended
"separate contracts and separate consideration for the non-
competition agreements." The trial court held that the non-
competition agreement was a personal service contract that
terminated on Young's death, and that no further payments were
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due under the agreement. The court entered final judgment in
favor of the defendants.
On appeal, Musselman argues that the payments due under the
non-competition agreement were an integral part of the purchase
price of B & L Auto's assets, which effectively represented
payment for the good will of the business, and did not
constitute consideration for a separate personal service
contract. She asserts that Glass Works should not receive a
lesser price for the business simply because Young agreed to
accept monthly payments under the non-competition agreement
rather than a lump sum payment. Musselman also contends that
since the non-competition agreement did not require Young to
provide any personal service to Glass Works, but simply required
him to refrain from competing with Glass Works, the agreement
did not constitute a personal service contract that terminated
on his death.
In response, the defendants contend that the non-
competition agreement was a separate, personal service contract
that required Glass Works to make payments only to Young, rather
than to B & L Auto, and that Young's death prevented him from
fully performing the contract. The defendants also assert that
Young's estate is not entitled to further payment under the non-
competition agreement because that agreement did not obligate
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Glass Works to continue making payments in the event of Young's
death. We disagree with the defendants' arguments.
When a business transaction is based on more than one
document executed by the parties, we will construe the documents
together to determine the intent of the parties. First Am. Bank
of Va. v. J.S.C. Concrete Constr., Inc., 259 Va. 60, 67, 523
S.E.2d 496, 500 (2000); Daugherty v. Diment, 238 Va. 520, 524,
385 S.E.2d 572, 574 (1989); American Realty Trust v. Chase
Manhattan Bank, 222 Va. 392, 403, 281 S.E.2d 825, 830 (1981).
In ascertaining the parties' intent, we consider the plain
meaning of the language the parties used in the documents.
Pollard & Bagby, Inc. v. Pierce Arrow, L.L.C., 258 Va. 524, 528,
521 S.E.2d 761, 763 (1999); Waynesboro Village, L.L.C. v. BMC
Properties, 255 Va. 75, 79-80, 496 S.E.2d 64, 67 (1998).
When the terms of the parties' documents are clear and
unambiguous, the interpretation of those terms presents a
question of law. Pollard & Bagby, 258 Va. at 528, 521 S.E.2d at
763; Gordonsville Energy, L.P. v. Virginia Elec. & Power Co.,
257 Va. 344, 352-53, 512 S.E.2d 811, 816 (1999). The issue
whether particular documents are ambiguous is also a question of
law. Pollard & Bagby, 258 Va. at 528, 521 S.E.2d at 763;
Donnelly v. Donatelli & Klein, Inc., 258 Va. 171, 180, 519
S.E.2d 133, 138 (1999); Tuomala v. Regent Univ., 252 Va. 368,
374, 477 S.E.2d 501, 505 (1996). Thus, on appeal, we are not
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bound by the trial court's resolution of these questions of law,
and we are afforded the same opportunity as the trial court to
consider the terms of the documents at issue. Pollard & Bagby,
Inc., 258 Va. at 528, 521 S.E.2d at 763; Donnelly, 258 Va. at
180, 519 S.E.2d at 138; Gordonsville Energy, L.P., 257 Va. at
352-53, 512 S.E.2d at 816.
We conclude that the purchase agreement and the non-
competition agreement are unambiguous, and that their terms
formed an integrated business transaction in which the various
non-competition agreements effectively represented a purchase of
the business good will of B & L Auto. The language of the
purchase agreement demonstrates the integrated nature of the
purchase transaction by stating that the sum due under the three
non-competition agreements was part of the purchase price of the
business, B & L Auto. Glass Works' payment of $60,000 for the
three non-competition agreements was referred to specifically as
part of "the purchase price for all of the property referred to
in Paragraph 1." In that paragraph, which is entitled "Sale of
Business," the property purchased included all "inventory,
equipment, supplies, appliances, vehicles and office furniture
owned by [B & L Auto] and used in [its] business."
Our conclusion that the non-competition agreement was an
integrated part of the purchase transaction, rather than a
separate, personal service contract, also is supported by the
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terms of the non-competition agreement. Those terms did not
require Young to perform any affirmative duties or services for
Glass Works after it purchased B & L Auto. Thus, the agreement
entered into by Glass Works and Young manifested only their
intent to benefit Glass Works in its purchase of the business,
and not to benefit Glass Works in obtaining Young's expertise or
skill in the performance of personal services related to the
conduct of the business.
We find no merit in the defendants' argument that Glass
Works is not obligated to continue performing its duties under
the non-competition agreement because the agreement does not
state that Glass Works' duty to make payments under the
agreement would continue in the event of Young's death. Since
the non-competition agreement represented part of the purchase
price of the business, Glass Works' payments under the non-
competition agreement remain due as part of that purchase, which
was fully executed and was not conditioned on Young's survival
for any period of time. If Glass Works had intended to be
excused on Young's death from its duty to pay this particular
part of the purchase price for B & L Auto, Glass Works should
have inserted a provision to this effect in the purchase
agreement. We will not, by construction, insert a term in a
contract that the parties to the contract omitted. Lansdowne
Dev. Co. v. Xerox Realty Corp., 257 Va. 392, 400, 514 S.E.2d
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157, 161 (1999); Hutter v. Heilmann, 252 Va. 227, 231, 475
S.E.2d 267, 270 (1996); Bridgestone/Firestone, Inc. v. Prince
William Square Assocs., 250 Va. 402, 407, 463 S.E.2d 661, 664
(1995).
Glass Works' argument that Young's death prevented him from
performing his duty of forbearance from competition does not
alter this result. It is self-evident that Young's death did
not constitute a breach of his agreement to refrain from
competition with B & L Auto and did not deprive Glass Works of
the benefit of its bargain.
For these reasons, we will reverse the trial court's
judgment and remand the case to the trial court for entry of
judgment in favor of Musselman, as executor of Young's estate,
for the remaining amount due under the non-competition
agreement.
Reversed and remanded.
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