C&A Scientific Company, Inc. v. Chenhua Yu, a/k/a Kenny Yu

COURT OF APPEALS OF VIRGINIA Record No. 0981-25-4 C&A SCIENTIFIC COMPANY, INC., ET AL. v. CHENHUA YU, A/K/A KENNY YU, ET AL. Present: Judges Raphael, Lorish and Frucci Argued at Arlington, Virginia Opinion Issued August 18, 2026 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David A. Oblon, Judge James J. O’Keeffe, IV (Matthew R. McGuire; Arktouros, PLLC, on briefs), for appellants. Andrew E. Suddarth (Kevin S. Jaros; PJI Law, PLC, on brief), for appellees. PUBLISHED OPINION BY JUDGE STUART A. RAPHAEL This business dispute arises between C&A Scientific Company, Inc. and its principal, Sam Xiang, on the one hand, and CoreAmp, Inc. and its principal, Kenny Yu, on the other. After Yu left his job at C&A and, through CoreAmp, solicited business from one of C&A’s clients, C&A’s lawyer warned the client that Yu was violating various contractual obligations to C&A. Yu and CoreAmp sued C&A and Xiang for, among other things, tortious interference with business expectancy. C&A and Xiang counterclaimed, alleging that Yu had breached his noncompete and non-solicitation obligations and had disclosed C&A’s trade secrets. At the jury trial that followed, the trial court invalidated the noncompete provision as vague and overbroad. The jury then returned a verdict for Yu and CoreAmp on their tortious-interference claim and assessed damages at $200,000. The jury rejected C&A’s claim that Yu breached his non-solicitation agreement or disclosed C&A’s trade secrets. On appeal, C&A argues that the trial court erred in finding the noncompete agreement unenforceable; erred in failing to set aside the jury’s verdict on Yu and CoreAmp’s tortious-interference claim; and erred by admitting into evidence an English translation of a letter written in Mandarin. We disagree and affirm the judgment. The noncompete agreement was fatally overbroad; the evidence sufficed to show that C&A interfered with a probable business expectancy that the jury could properly value at $200,000; and the trial court committed no reversible error by admitting the English translation into evidence. BACKGROUND Applying “well-settled principles of appellate review,” we “view the evidence in the light most favorable to the [appellees]”—Yu and CoreAmp—as they have in their “favor a jury verdict confirmed by the trial judge.” United Leasing Corp. v. Lehner Fam. Bus. Tr., 279 Va. 510, 513 (2010). “Doing so requires that we ‘discard’ the [appellants’] evidence when it conflicts with the [appellees’] evidence, ‘regard as true all the credible evidence favorable to the [appellees],’ and read ‘all fair inferences’ in the [appellees’] favor.” Camann v. Commonwealth, 79 Va. App. 427, 431 (2024) (en banc) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Yu and Xiang are cousins. Xiang’s parents founded C&A in the 1990s. C&A is a wholesaler of scientific equipment and educational supplies. Xiang started working for the company in 2015, quickly becoming the Chief Executive Officer. -2-  A. Xiang hires Yu at C&A, but they have a falling out. In 2017, Xiang approached Yu “to help save” the company. C&A was in “very bad shape” and “almost bankrupt.” By 2019, with Yu’s help, C&A was turning a profit; Yu was promoted to Chief Operating Officer. After Yu’s promotion, Xiang and Yu entered into a shareholder agreement that was prepared by Xiang. The agreement gave Yu a 30% interest in C&A and Xiang a 70% interest. Section 8(a) of the shareholder agreement contained a broad noncompete provision—with an incomplete conditional clause at the end—governing a departing shareholder’s obligations after selling his shares: Noncompetition. . . . Unless otherwise agreed to in writing by a majority of the Board of Directors, a departing Shareholder will not be employed, concerned, or financially interested, either directly or indirectly, in the same or a similar business as that conducted by the Corporation, or compete with the Corporation for a one-year period following the date the departing Shareholder conveys his or her shares if any customers of the same, similar, or competing business. (Emphasis added). Paragraph 8(b) of the shareholder agreement also obligated Yu not to disclose C&A’s trade secrets or customer lists. Under Yu’s leadership, C&A’s gross revenue increased from $4.5 million to $26 million. But in 2020, the relationship between Yu and Xiang soured. According to Yu, Xiang demanded that he “make [C&A] another $100,000,000 in the next five years” or Xiang would withhold Yu’s ownership distribution. Without that distribution, Yu worried that he would be unable to pay his share of C&A’s tax liability.1 Xiang also directed Yu to “double” his workload. 1 Yu explained that because C&A was structured as an S-Corporation, he and Xiang had to pay their respective shares of the corporate tax. -3-  Unable to resolve the conflict, Yu and Xiang negotiated a stock-purchase agreement under which Yu agreed to sell his shares back to the company. Paragraph 6(a) of the agreement contained a non-solicitation provision obligating Yu for a period of 12 months from the termination of his employment not to “solicit or contact” any C&A customer “with a view to induce or encourage” the customer “to discontinue or curtail its relationship with” C&A. B. Yu forms CoreAmp, Inc. Yu formed CoreAmp, Inc. in July 2021, while Yu and Xiang were negotiating the stock-purchase agreement. Though he had no plans for CoreAmp when he created it, Yu contemplated consulting, software, and third-party logistics as potential business options. The “third-party logistics” he contemplated would not compete with C&A; the company could have worked “either for or with C&A,” not against it. The stock-purchase agreement took effect on August 1, 2021, starting the one-year noncompete obligation under paragraph 8(a) of the shareholder agreement. Yu testified that his last day of work at C&A was August 23, 2021. So his separate, 12-month non-solicitation obligation under paragraph 6(a) of the stock-purchase agreement extended to August 23, 2022. In the year following his departure from C&A, Yu did not contact “any other entity that had a business relationship with C&A in order to induce or encourage that entity to discontinue or curtail its relationship with C&A.” Nor did he try to compete with C&A for business during that period. And at no time after leaving C&A did Yu ever disclose any of C&A’s confidential information. In September 2022, a month after his noncompete and non-solicitation obligations had ended, Yu reached out to one of C&A’s customers, Carolina Biological Supply Company. In October, Carolina Biological invited CoreAmp to become one of its vendors. Yu and CoreAmp signed a nondisclosure agreement on October 25, 2022. Carolina Biological’s vice president -4- introduced Yu to the company’s purchase manager, who added CoreAmp to the company’s computer system. In November or December, Carolina Biological told Yu that it “wanted [CoreAmp] to completely replace C&A Scientific” as the company’s supplier. Carolina Biological had grown unhappy with C&A for cutting corners on quality while raising prices. Carolina Biological gave Yu the “C&A Scientific product list for [Yu] to replace with the [CoreAmp] target price.” Based on his “knowledge of the industry,” Yu anticipated that replacing C&A as Carolina Biological’s vendor would net CoreAmp $300,000 per year. In late 2022, CoreAmp made its first sale to Carolina Biological in the amount of $1,000. C. Litigation ensues after C&A warns Carolina Biological to stop working with Yu. On January 12, 2023, however, Yu received a letter from Kelly Nash, a lawyer engaged by C&A “to investigate and prosecute civil claims against [Yu] and any of [his] affiliated companies, including CoreAmp, Inc. [] relating to alleged breaches” of the shareholder and stock-purchase agreements. Nash’s letter requested that Yu submit to mediation to “informally and amicably” resolve the alleged contractual violations. The next day, Nash sent a letter to Carolina Biological warning it of Yu’s obligations under the shareholder and stock-purchase agreements. Nash accused Yu of violating his obligations “by attempting to engage or engaging in business activity with” Carolina Biological. The letter asked Carolina Biological to “refrain from dealing with [Yu],” as doing so “would be in keeping with [its] duty to not interfere with third party contracts under applicable law.” Carolina Biological forwarded the letter to Yu, informing him that although it was happy with his business, it could not continue working with him until he resolved his dispute with C&A. In February 2023, Xiang’s parents sent a letter to Yu’s family that berated and disparaged Yu and his wife over Yu’s falling out with Xiang. The letter was written in Mandarin, but Yu -5- translated it into English.2 The letter accused Yu of being ungrateful and threatened to embarrass Yu to his family members and business partners unless he agreed, among other things, to sign a “Permanent Non-compete agreement.” Yu refers to that document as the “blackmail” letter. The parties attempted mediation in the third week of February 2023, but it did not succeed. Xiang’s counsel received the English translation of the blackmail letter in the course of that mediation. On February 24, 2023, Yu and CoreAmp sued Xiang, C&A, Nash, and Nash’s law firm. On May 26, Yu and CoreAmp amended the complaint to allege, among other things, that all four defendants “intentionally interfered with CoreAmp’s business relationship and business expectancies with Carolina [Biological].” C&A counterclaimed, alleging that Yu breached the shareholder agreement, the stock-purchase agreement, and his fiduciary duties to C&A. C&A also accused Yu and CoreAmp of interfering with its “contract and/or business expectancy,” and further accused Yu of misappropriating its trade secrets.3 C&A and Xiang sought compensatory damages of $3 million and punitive damages of $350,000.4 D. Yu and CoreAmp prevail at trial. The jury trial that followed spanned five days: March 3, 4, 6, 10, and 11, 2025. As described in Part I below, the transcripts for only the first and fourth days of trial (March 3 and 10) were timely filed. 2 At trial, Yu was uncertain at first in recalling whether he or his lawyer had translated the letter into English, but Yu ultimately remembered that he translated the letter himself. 3 Two of the counts originally pleaded against Nash and his law firm were dismissed by plea in bar on August 10, 2023. The remaining count against Nash and the law firm was dismissed by agreement of the parties on January 31, 2025. The court sustained Xiang’s demurrer to Yu and CoreAmp’s tortious-interference claim, dismissing that claim with prejudice as to Xiang on August 10, 2023. 4 C&A did not seek specific performance or injunctive relief to extend the noncompete for another one-year period. Cf. Roanoke Eng’g Sales Co. v. Rosenbaum, 223 Va. 548, 554-56 (1982) (permitting prospective enforcement of noncompete when equity warrants it). -6-  Yu testified on March 3 to the facts set forth above. C&A did not object when Yu estimated that the net value of CoreAmp’s replacing C&A as Carolina Biological’s vendor was $300,000 per year. Nor did C&A object when Yu repeatedly referred to the February 2023 letter from Xiang’s parents as the “blackmail” letter. C&A agreed to the admission of the original letter from Xiang’s parents, written in Mandarin, as Defense Exhibit 61. But C&A objected on two grounds when Yu and CoreAmp offered the English translation as Plaintiff’s Exhibit 11. First, C&A argued that the English version had not been produced in discovery. But the trial court overruled that objection after C&A admitted that the English translation had been provided to Xiang’s counsel at the February 2023 mediation. C&A also objected that the English version was not “a certified translation[].” The trial court was unpersuaded, however, and it received Plaintiff’s Exhibit 11 into evidence. In the defense case on March 10, Nash testified that Xiang and C&A hired his law firm to investigate Yu and CoreAmp. Based on that investigation, Nash concluded that “there was one very small [purchase order] and no other agreement in place between either [Yu] or CoreAmp or Carolina Biological.” Nash admitted that he sent copies of the shareholder and stock-purchase agreements to Carolina Biological with his January 2023 letter. In the plaintiffs’ rebuttal case on March 10, Yu testified that he signed a nondisclosure agreement with Carolina Biological as a “requirement” for doing business. A copy of the nondisclosure agreement was admitted into evidence without objection. At the close of all evidence, Yu moved to strike Count IV of C&A’s counterclaim to the extent that it alleged that he breached the noncompete provision in paragraph 8(a) of the shareholder agreement. Focusing on the last sentence of that provision, the court found that it ended “with a run-on sentence” that was unclear and that “no evidence in the trial makes it clear.” The court considered “blue penciling” that language but determined that Virginia law -7- would not allow that. Because the noncompete provision was “unintelligible,” the court continued, it was “unenforceable,” and “the remedy is to strike the entire provision.” The court also ruled that the noncompete provision “as a whole, is not narrowly tailored and is overbroad” because it “bars an investment in a similar business that doesn’t even compete with C&A.” The provision also lacked “a geographical limitation,” and there was “no evidence that C&A need[ed] a worldwide pr[o]scription.” The court, however, permitted C&A’s other counterclaims to go forward. They included C&A’s claim that Yu breached both the trade-secrets provision in paragraph 8(b) of the shareholder agreement and the non-solicitation provision in paragraph 6(a) of the stock-purchase agreement. The jury returned a verdict for Yu and CoreAmp on their tortious-interference claim and awarded them $200,000 in compensatory damages. The jury also returned a verdict for Yu and CoreAmp on all of C&A’s counterclaims. The court initially entered a “Final Judgment” for Yu and CoreAmp on March 11, 2025 but suspended the order for the parties to file post-trial motions. C&A moved to set aside the verdict and reduce the damage award on the tortious-interference claim, attaching the transcripts from the first and fourth days of trial. C&A argued that Yu and CoreAmp had failed to prove tortious interference or to offer evidence to support the $200,000 compensatory-damage award. After hearing argument on May 30, 2025, the trial court denied C&A’s post-trial motions and reinstated the final judgment for Yu and CoreAmp.5 C&A and Xiang noted a timely appeal from the May 30 final order, representing that they would file hearing transcripts. They filed ten transcripts on August 4, 2025, including the transcripts for all five days of trial. But the 60-day 5 C&A posted a cash bond of $371,000 to stay execution of the judgment pending appeal. -8- window to file transcripts under Rule 5A:8 had closed on July 29, and they failed to request an extension of time. ANALYSIS I. The Court can reach the assignments of error despite C&A’s failure to timely file all trial transcripts. We must first consider whether the Court can reach the assignments of error given that the transcripts for three of the five days of trial were filed later than the 60 days allowed under Rule 5A:8(a). Neither side raised this issue on brief, but we alerted the parties to be prepared to discuss it at oral argument. In response, C&A asked us to stay this case pending a decision by the Supreme Court in Faruque v. Bhuiyan, No. 250657 (petition for appeal granted June 1, 2026). The appellant there argues, among other things, that a panel of this Court erred in deeming late-filed transcripts not part of the record when the transcripts had been transmitted to our Court by the clerk of the circuit court and the appellee had not objected to their inclusion in the record.6 Yu and CoreAmp responded that they opposed a stay. They also consented to our considering the late-filed transcripts. Even so, C&A’s counsel expressed concern at oral argument that, depending on how Faruque is resolved, even an appellee’s explicit waiver of a Rule 5A:8(a) deficiency might not be enough to make late-filed transcripts part of the record on appeal. Unless the appellant obtains a time extension, “[t]he transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court no later than 60 days after entry of the final judgment.” Rule 5A:8(a). “When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered.” Rule 6 The order appealed from in Faruque v. Bhuiyan, No. 0209-24-4 (Va. Ct. App. May 21, 2025), is unpublished. -9- 5A:8(b)(4)(ii). We regularly affirm the trial court’s judgment when a transcript that has not been timely filed is found to be indispensable to resolving the assignment of error. See, e.g., Smith v. Commonwealth, 281 Va. 464, 466 (2011) (noting that the transcript was not part of the record because it “was not filed in the circuit court until eight days beyond the time prescribed by Rule 5A:8”). Even so, “cases may often be decided without the filing of a transcript.” Id. at 468 (collecting cases). “[T]he absence of a hearing transcript is not fatal to an assignment of error when . . . the specific basis for the trial court’s ruling and the appellant’s objections to that ruling are evident in the record.” Hammond-Schrock v. Commonwealth, 86 Va. App. 780, 792 (2026) (finding the hearing transcript not indispensable because the appellant’s arguments were made in her written pleading and the trial court explained the basis for the challenged ruling); see also JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 382 (2016) (finding the transcript not indispensable when the record “sufficiently sets before the Court the pure issue of law” on appeal); Shaw-McDonald v. Eye Consultants of N. Va., P.C., 79 Va. App. 576, 582 n.2 (2024) (finding the issues adequately preserved in the record despite the absence of a hearing transcript), aff’d on other grounds, 304 Va. 164 (2025). In other words, the appellant’s “failure to include a transcript . . . will result in a waiver only when . . . [it] . . . is ‘necessary to permit resolution of appellate issues.’” Jacks v. Commonwealth, 74 Va. App. 783, 795 (2022) (en banc) (emphasis added) (quoting Rule 5A:8(b)(4)(ii)). Having carefully reviewed the assigned errors and the portions of the record they implicate, we conclude that we can resolve all four assignments of error based on the timely filed transcripts from the first and fourth days of trial. The March 3 transcript contains Yu’s case-in- chief testimony. The March 10 transcript includes Xiang’s testimony, Nash’s testimony, and Yu’s rebuttal testimony. Their testimony covers the basis for Yu and CoreAmp’s tortious- - 10 - interference claim and the $200,000 damages award; the admission into evidence of the English translation of the “blackmail” letter; and the trial court’s ruling invalidating the noncompete agreement. We have also reviewed the record citations in the parties’ briefs that reference any other day of trial for which the transcript was filed late. There were few such references. And none of the points supported by those citations changes the basis for our decision here. So we deny C&A’s motion to stay this case pending a decision in Faruque. II. The trial court properly invalidated the noncompete provision (Assignment of Error 1). “The enforceability of a provision that restricts competition is a question of law that [appellate courts] review de novo.” Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 415 (2011). Paragraph 8(a) of the shareholder agreement imposed this noncompete7 obligation on Yu (ending with an incomplete conditional clause): Unless otherwise agreed to in writing by a majority of the Board of Directors, a departing Shareholder will not be employed, concerned, or financially interested, either directly or indirectly, in the same or a similar business as that conducted by the Corporation, or compete with the Corporation for a one-year period following the date the departing Shareholder conveys his or her shares if any customers of the same, similar, or competing business. The trial court invalidated that provision on two grounds: the incomplete conditional clause at the end made the sentence unintelligible; and the noncompete was overbroad in function and 7 The term noncompete can function as an adjective, as in noncompete provision and noncompete obligation. It may also operate as a noun, referring to a covenant not to compete. Some legal lexicographers in the 1980s disfavored noncompete as a noun. See Bryan A. Garner, Noncompetition agreement, A Dictionary of Legal Usage (1987) (“Noncompete is not listed in most dictionaries and we may justifiably hope that it never gains widespread approval.”). Although it does not yet have its own entry in Black’s Law Dictionary, noncompete is now commonly used as a noun. See, e.g., Noncompete, Merriam-Webster Dictionary (last visited July 27, 2026), https://perma.cc/B4V3-8VWQ; Uniform Restrictive Employment Agreement Act (Unif. L. Comm’n 2021) (using noncompete and noncompetes as nouns throughout the commentary), https://perma.cc/MVG2-5JBL; see also Bryan A. Garner, LawProse Lesson #277: “Noncompete” competes with “noncompetition” (Mar. 9, 2017), https://perma.cc/672Q-2ALG (discussing the term’s evolution since the 1980s). - 11 - geographic scope. The trial court said it considered “blue penciling” the provision but concluded that Virginia law does not allow blue penciling.8 And even if it did, the court would be unable “to figure out how to reform the contract.” So the court struck Count IV of C&A’s counterclaim to the extent that it was based on Yu’s alleged breach of the noncompete provision. C&A challenges both grounds, but we find no reversible error. A. The noncompete provision cannot be reformed. 1. C&A defaulted its party-presentation objection. C&A first argues that we should not consider the trial court’s ruling that reformation is not available to delete the incomplete conditional clause because the trial court raised this issue on its own. In doing so, C&A says, the trial court violated “the principle of party presentation.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). The party-presentation principle captures the idea that “[t]he parties ‘“frame the issues for decision,”’ while the court serves as ‘“neutral arbiter of matters the parties present.”’” Clark v. Sweeney, 607 U.S. 7, 9 (2025) (per curiam) (quoting Sineneng-Smith, 590 U.S. at 375). “To put it plainly, courts ‘call balls and strikes’; they don’t get a turn at bat.” Id. (quoting Lomax v. Ortiz-Marquez, 590 U.S. 595, 599 (2020)). But “[t]he party presentation principle is supple, not 8 The metaphor owes its origin to the publishing profession, where the editor’s use of a blue pencil to correct the author’s words had become commonplace by at least the second half of the nineteenth century. For a reporter’s satirical description of an editor as a “Blue Pencil Fiend,” see The Weekly News and Advertiser at 1 (Albany, Ga. Apr. 23, 1881) (“Why is his pencil blue? Because he makes the reporter feel blue, and because that color represents the flame in which his Satanic majesty works.”), https://perma.cc/6RJ8-Y3D3. The metaphor appears to have made its way into restrictive-covenant law in Attwood v. Lamont, 2 K.B. 146, 155 (1920) (Bailhache, J.) (“[T]he Courts will sever in a proper case where the severance can be performed by a blue pencil but not otherwise.”), rev’d, 3 K.B. 571, 578 (1920) (C.A.) (Sterndale, M.R.) (describing the divisional court’s metaphor of “running a blue pencil through it” as a “figurative way of expressing the principle”). - 12 - ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate.” Sineneng-Smith, 590 U.S. at 376.9 We are not as sure as C&A that the trial court violated the party-presentation principle. Yu and CoreAmp moved to strike Count IV of the counterclaim on the ground that the noncompete provision was not only “extraordinarily broad” but also “extremely vague and ambiguous.” The trial judge struggled in reading the text for himself, saying, “I must have read it a million times.” The trial judge zeroed in on the incomplete conditional clause at the end, assuming it was “a run-on sentence” and noting, “I don’t understand what that last clause means.” So the court, understandably, asked the parties what they thought it meant. C&A’s counsel responded, “I agree, Your Honor, there’s a typo there.” He posited that it was “supposed to be a restriction on competing with”—he probably meant competing for—“C&A customers.” He offered that if the text were ambiguous, the incomplete conditional clause could be severed under paragraph 10(g) of the shareholder agreement, allowing “the rest of” the provision to remain. The court next asked whether Virginia allows “blue penciling,” to which C&A responded that the parties could agree to it. But Yu and CoreAmp’s counsel insisted that the entire noncompete provision would have to be stricken and that reformation was not available because 9 Our appellate courts, for instance, identify when subject-matter jurisdiction is lacking even when the parties and the trial court have overlooked that requirement. E.g., Garrett v. Majied, 252 Va. 46, 47-48 (1996). We regularly find that appellants have defaulted an issue by failing to have contemporaneously objected in the trial court, even when the appellee failed to point out the omission. E.g., Antigone v. Taustin, 88 Va. App. 56, 86 (2026). Our courts sometimes affirm a judgment as right for the wrong reason or right for a different reason even when the appellee did not raise the correct reason in the trial court. E.g., Perry v. Commonwealth, 280 Va. 572, 580 (2010). We invoke the constitutional-avoidance doctrine even when the parties have not mentioned it. E.g., Taylor v. Commonwealth, 78 Va. App. 147, 157 (2023). And we have identified legal authorities that support or oppose a party’s legal argument even when the party itself has failed to bring those authorities to our attention. See, e.g., Orange v. Commonwealth, ___ Va. App. ___, ___ n.12 (July 28, 2026). - 13 - it was impossible here “to figure out what the parties were contemplating.” It appears from our own review of the record that the legal question at issue on the motion to strike—whether the noncompete provision could be reformed by striking the incomplete conditional clause—arose organically as part of the parties’ debate over what the noncompete provision meant. In any event, we do not decide whether the trial court violated the party-presentation principle because C&A defaulted this objection by failing to raise it below. “No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. The “contemporaneous-objection requirement affords ‘the trial court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.’” Hammer v. Commonwealth, 74 Va. App. 225, 236 (2022) (quoting Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015)). Because C&A never argued that the trial court’s questioning about the incomplete conditional clause ran afoul of the party-presentation principle, “the trial court did not have an opportunity to intelligently rule on this ground.” Commonwealth v. Carolino, 303 Va. 399, 408 (2024). So C&A’s argument “is waived pursuant to Rule 5A:18.” Id. at 412. 2. Reformation is unavailable. Could the incomplete conditional clause in the noncompete provision be reformed or deleted as a mistake? In discussing this question in the trial court, the parties appear to have elided the distinction between (1) when a contract with a typo or scrivener’s error may be reformed and (2) whether a noncompete provision may be “blue penciled.” Those questions are easy to blend. “The validity of a covenant not to compete is determined by applying not only the general principles of contract construction, but also legal principles specifically applicable to such covenants.” Motion Control Sys., Inc. v. East, 262 Va. - 14 - 33, 37 (2001). The rules surrounding when a contractual provision can be reformed or a scrivener’s error corrected belong among the “general principles of contract construction.” Id. By contrast, the idea of “blue penciling” a restrictive covenant to remove portions that render it invalid has often come up in Virginia circuit-court cases and federal cases applying Virginia law. Under the “blue-pencil” approach, “only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words.” Blue-pencil test, Black’s Law Dictionary (12th ed. 2024). Courts in other States and model-law advocates are divided about whether a court may “blue pencil” a restrictive covenant and, if so, to what extent.10 Without a published Virginia 10 See generally Ferdinand S. Tinio, Enforceability, Insofar as Restrictions Would Be Reasonable, of Contract Containing Unreasonable Restrictions on Competition, 61 A.L.R.3d 397 (1975 & Supp. 2025) (collecting cases). Some States have enacted statutes that prohibit noncompete provisions in employment contracts. See Cal. Bus. & Prof. Code § 16600; Minn. Stat. § 181.988, subdiv. 2; N.D. Cent. Code Ann. § 9-08-06; Okla. Stat., tit. 15, § 217. Some States that permit noncompete agreements in employment contracts have adopted statutes allowing courts to revise restrictive covenants to eliminate overbroad provisions. See Ark. Code Ann. § 4-75-101(f); Fla. Stat. Ann. § 542.335(1)(c); Ga. Code Ann. § 13-8-54(b); Mich. Comp. Laws. Ann. § 445.774a; Nev. Rev. Stat. Ann. § 613.195(6); Tex. Bus. & Com. Code § 15.51(c). But see Wis. Stat. Ann. § 103.465 (“Any covenant, described in this section, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.”). In 2021, the Uniform Laws Commission recommended that States adopt its model code for handling restrictive covenants. See Uniform Restrictive Employment Agreement Act, supra note 7. The Commission proposed two alternatives for dealing with overbroad provisions. Id., § 16 at 42. Option A would forbid courts from modifying a restrictive covenant. Id. The Commission called this the “red-pencil approach.” Id., § 16 cmt. at 43. “The rationale for the red-pencil approach is that it discourages employers from entering overly broad agreements by risking nonenforcement.” Id. Option B would forbid a court from extending the duration of a restrictive covenant beyond one year but allow the court to modify the covenant to save it from invalidity; the court could do so, however, “only on a finding that the employer reasonably and in good faith believed the agreement was enforceable . . . and only to the extent necessary to protect the employer’s interest and render the agreement enforceable.” Id., § 16 at 42. The Commission called this the “reformation/blue-pencil” approach. Id., § 16 cmt. at 43. The American Law Institute had earlier recommended something closer to the reformation/blue-pencil approach. See Restatement of Employment Law § 8.08 (A.L.I. 2015) (“A court may delete or modify provisions in an overbroad restrictive covenant in an employment agreement and then enforce the covenant as modified unless the agreement does not allow for modification or the employer lacked a reasonable and good-faith basis for believing the - 15 - appellate case to guide them, various federal courts and Virginia circuit courts have concluded that “courts in Virginia have no authority to ‘“blue pencil” or otherwise rewrite the contract’ to eliminate overbroad portions of the agreement in order to preserve its enforceability.”11 We need not address whether those rulings are correct under Virginia law because C&A does not advocate blue-penciling here. It argues that “[t]he circuit court erred by failing to recognize that the last clause was a scrivener’s error for which the remedy is not ‘blue penciling’ in any respect.” C&A Br. 19. C&A claims instead that “the proper remedy for a ‘typo’ is to strike the ‘typo’ from the document, which, in this case, leaves a fully complete non-competition clause with no impact on the parties’ bargain.” Id. at 18. “The correction of a scrivener’s error is a court-sanctioned action reforming a contract or other document.” Westgate at Williamsburg Condo. Ass’n v. Philip Richardson Co., 270 Va. 566, 575 (2005). Likewise, “[a] court’s decision to fix a typographical error in a contract is tantamount to reforming the contract when it has material consequences.” 27 Samuel Williston, A Treatise on the Law of Contracts § 70:93, at 469 (4th ed. 2020) [hereafter “Williston”]. Whether an apparent error constitutes “a scrivener’s error . . . is a question of law.” Westgate, 270 Va. at 574; accord Yourko v. Yourko, 74 Va. App. 80, 87-88 (2021) (“While the court’s covenant was enforceable. Lack of a reasonable and good-faith basis for believing a covenant was enforceable may be manifested by its gross overbreadth alone, or by overbreadth coupled with other evidence that the employer sought to do more than protect its legitimate interests.”). 11 Tactical Rehab., Inc. v. Youssef, No. 2:24-cv-173, 2024 U.S. Dist. LEXIS 203575, at *12 (E.D. Va. Nov. 7, 2024) (quoting Update, Inc. v. Samilow, 311 F. Supp. 3d 784, 788 (E.D. Va. 2018)); see also, e.g., Lanmark Tech., Inc. v. Canales, 454 F. Supp. 2d 524, 529 (E.D. Va. 2006) (“[T]here is no authority for courts to ‘“blue pencil” or otherwise rewrite the contract’ to eliminate any illegal overbreadth.” (quoting Pais v. Automation Prods., Inc., 36 Va. Cir. 230, 239 (Newport News 1995))). Courts have also sometimes confronted express contractual provisions—“blue pencil clauses”—that purport to authorize a reviewing court to modify the parties’ agreement to effectuate the most restrictive covenant allowable. E.g., Update, 311 F. Supp. 3d at 794-95 (rejecting argument that a blue-pencil clause invalidates the entire agreement but noting that several Virginia circuit courts have found such clauses to be invalid) (collecting cases). - 16 - underlying findings of fact are entitled to deference, the ultimate conclusion of whether particular conduct constitutes a scrivener’s error is a question of law to be reviewed de novo.”), rev’d on other grounds, 302 Va. 149 (2023). “[A] court’s role in ‘correcting’ documents is limited. The rule is well-settled that a court is not permitted to rewrite a document or add terms not included by the parties.” Westgate, 270 Va. at 575. “A scrivener’s error presents an exception to this general rule, because . . . scrivener’s errors ‘are difficult to prevent, and . . . no useful social purpose is served by enforcing . . . mistaken term[s].’” Id. (second, third, and fourth alterations in original) (quoting S.T.S. Transp. Serv., Inc. v. Volvo White Truck Corp., 766 F.2d 1089, 1093 (7th Cir. 1985)). “In contract law, a scrivener’s error, like a mutual mistake, occurs when the intention of the parties is identical at the time of the transaction but the written agreement does not express that intention because of that error; this permits a court acting in equity to reform an agreement.” Williston, supra, § 70:93, at 469. Still, the power to correct “a scrivener’s error presents a significant exception to a well-established rule, so we must construe” what constitutes a scrivener’s error “narrowly.” Westgate, 270 Va. at 575. “Equity has undoubted jurisdiction to reform an instrument if it does not express the intent of the parties. . . . But equity should not act lightly.” Gibbs v. Price, 207 Va. 448, 449-50 (1966). “To support reformation on the ground of mutual mistake, the proof ‘must be clear and satisfactory, leaving but little, if any, doubt of the mistake.’” Id. at 450 (quoting French v. Chapman, 88 Va. 317, 322 (1891)); see also Knewstep v. Jackson, 259 Va. 263, 269 (2000) (requiring clear and convincing evidence); accord Restatement (Second) of Contracts § 155 cmt. c (A.L.I. 1981) (same). “The purpose of reformation in such cases is to correct the error in order that the instrument will accurately reflect the true intent of the parties.” Kent Sinclair, Sinclair on Virginia Remedies § 54-2[A] at 54-4 (5th ed. 2016). The court, “sitting in the Chancellor’s seat, - 17 - [must be] convinced that a mistake in the writing was made and the court knows what the parties really intended.” 5 Corbin on Contracts § 24.2 at 37 (Matthew Bender 2024) (emphasis added). In other words, “the party alleging a mistake in a written instrument must show by evidence which leaves no reasonable doubt upon the mind of the court, not only of what the mistake consists, but the correction which should