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-inchief 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 be made.” Temple v. Va. Auto. Mut. Ins. Co., 181 Va.
561, 569 (1943). The proponent must establish “the agreement contemplated by them when
executed.” Williston, supra, § 70:94, at 481.12
C&A cannot satisfy that standard here because there is no evidence—let alone clear and
convincing evidence—of what the parties intended. Perhaps the incomplete conditional clause
was a remnant from an earlier draft that was inadvertently left in the final document. Or as
hypothesized by C&A’s counsel during the motion to strike, perhaps the clause could have been
completed in a way that would have narrowed the otherwise broad scope of the noncompete
provision. For instance, the clause “if any customers of the same, similar, or competing
business” could have been finished with:
o “are customers of the Corporation.”
o “were customers of the Corporation.”
o “are solicited by the departing Shareholder.”
o “are diverted from the Corporation.”
Based on the record compiled here, we simply do not know what the parties wanted.
12
This principle is analogous to the one under Code § 8.01-428(B) that permits a trial court to correct a scrivener’s error in a final order after the court has otherwise lost jurisdiction under Rule 1:1. That power too is “narrowly construed and applied.” Morgan v. Russrand Triangle Assocs., Inc., 270 Va. 21, 25 (2005). The error is correctable only when it is “‘demonstrably contradicted by all other documents’” so as to “‘cause the court’s record to fail to “speak the truth.”’” Id. (quoting Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283 (2002)).
- 18 -Accordingly, the trial court did not err in concluding that the noncompete provision was
incapable of judicial enforcement. Without evidence of what the parties intended, the
noncompete provision could not be reformed into an intelligible sentence. Nor could the
incomplete conditional clause be deleted as a mere scrivener’s error.
B. The noncompete provision is invalid because it is fatally overbroad.
We also agree with Yu that “even if this Court were to strike the [incomplete conditional
clause] as [C&A and Xiang] request, the resulting provision would still fail.” Yu Br. 12. We
hold that this ground provides an independent basis to invalidate the noncompete.
“In general, parties may contract as they wish, and courts will enforce their agreements
without passing on their substance. Sometimes, however, a court will decide that the interest in
freedom of contract is outweighed by some overriding interest of society and will refuse to
enforce a promise or other term on grounds of public policy.” Restatement (Second) of
Contracts, supra, ch. 8, Topic 1, Intro. Note, at 2. “The common law’s policy against restraint of
trade is one of its oldest and best established.” Id., ch. 8, Topic 2, Intro. Note, at 35.
In Virginia, the policy against unreasonable restraints of trade has ancient roots. “At
independence, Virginia adopted the common law of England as her own unless modified by the
General Assembly, a directive that remains codified today in Code § 1-200.” Hopkins v. Ryan,
88 Va. App. 137, 162 (2026). Our appellate courts have not yet decided whether the relevant
date for the reception of English common law is 1776 or 1792. See White v. United States, 300
Va. 269, 277 n.5 (2021). But that does not matter here because the prohibition against
unreasonable restraints of trade was already well-established in England before independence.
“By early common law[,] any limitation upon the right of one to work was against public
policy.” Stoneman v. Wilson, 169 Va. 239, 245 (1937). For instance, the court held in The
Blacksmith’s Case, 2 Leo. 210, 74 Eng. Rep. 485 (C.P. 1587), that a bond by which a blacksmith
- 19 -promised to “not exercise his trade” in the same town or “within a certain precinct of it” was
“void because it was against law.” Id. at 210, 74 Eng. Rep. at 485.
Later cases, however, found that certain restraints of trade were valid if reasonable. In
Mitchel v. Reynolds, 1 P. Wms. 181, 24 Eng. Rep. 347 (K.B. 1711) (Parker, C.J.), the Court of
King’s Bench upheld a restrictive covenant by which the lessor of a bakehouse agreed to pay the
tenant 50 pounds if the lessor “exercise[d] the trade of a baker within that parish” during the
five-year lease term. Id. at 181, 24 Eng. Rep. at 347. “The Rule of Reason suggested by Mitchel
v. Reynolds has been regarded as a standard for testing the enforceability of covenants in restraint
of trade [that] are ancillary to a legitimate transaction, such as an employment contract or the
sale of a going business.” Nat’l Soc. of Pro. Eng’rs v. United States, 435 U.S. 679, 689 (1978).
Mitchel distinguished cases “where the restraint is general not to exercise a trade
throughout the kingdom, and where it is limited to a particular place; for the former of these must
be void, being of no benefit to either party, and only oppressive.” 1 P. Wms. at 182, 24 Eng.
Rep. at 348. But “[w]here a contract for restraint of trade appears to be made upon a good and
adequate consideration, so as to make it a proper and useful contract, it is good.” Id. at 186, 24
Eng. Rep. at 349. The “reasons [for] the distinction are . . . the mischief [that] may arise from
[restraints of trade], [first] to the party, by the loss of his livelihood, and the subsistence of his
family; [second], to the publick, by depriving it of [a] useful member.” Id. at 190, 24 Eng. Rep.
at 350. Restrictive covenants were also susceptible to “great abuses” by those seeking
“exclusive advantage in trade.” Id. But the court recognized their potential benefit as well, such
as for an “old man” who might wish to sell his business, making it “better for him to part with it
for a consideration” and thereby procure a “livelihood . . . [that] he might probably have lost . . .
by trading longer.” Id. at 191, 24 Eng. Rep. at 350.
- 20 -In 1905, our Supreme Court identified Mitchel, though “decided nearly two hundred
years” earlier, as the foundation of the common law governing restraints of trade. Merriman v.
Cover, Drayton & Leonard, 104 Va. 428, 435 (1905). The Court ruled that “restraints are valid
and enforceable when they are not greater than are necessary for the fair protection of the
covenantee in respect to the subject matter of the contract, and not injurious to trade in general.”
Id.
A series of cases since Merriman have crystallized the current standard. A provision that
restricts competition “is enforceable if it ‘is narrowly drawn to protect the employer’s legitimate
business interest, is not unduly burdensome on the employee’s ability to earn a living, and is not
against public policy.’ The employer bears the burden of proving each of these factors.” Home
Paramount, 282 Va. at 415 (quoting Omniplex World Servs. Corp. v. US Investigations Servs.,
Inc., 270 Va. 246, 249 (2005)). “When evaluating whether the employer has met that burden, we
consider the ‘function, geographic scope, and duration’ elements of the restriction. These
elements are ‘considered together’ rather than ‘as three separate and distinct issues.’” Id.
(quoting Simmons v. Miller, 261 Va. 561, 581 (2001)).13
13
The General Assembly has recently imposed certain restrictions on covenants not to compete, although those statutes are not at issue here. A statute enacted in 2020 provides that “[a] ‘covenant not to compete’ shall not restrict an employee from providing a service to a customer or client of the employer if the employee does not initiate contact with or solicit the customer or client.” 2020 Va. Acts chs. 949, 949 (codified as amended at Code § 40.1-28.7:8(A)). The statute also bars noncompetes “with any low-wage employee or health care professional,” Code § 40.1-28.7:8(B), but allows noncompetes “or similarly restrictive covenants with any health care professional or such person’s business entity as part of a sale of business,” Code § 40.1-28.7:8(H)(2). A 2026 amendment added what is now subsection C of that statute, barring the enforcement of a covenant not to compete against an employee dismissed without cause unless the employer provides “severance benefits or other monetary payment” and those benefits were disclosed when the noncompete was executed. 2026 Va. Acts ch. 883. Another statute enacted this year prohibits noncompetes in retail-franchise agreements except agreements for the sale of a franchise, in which case a noncompete is allowed “for a period of no more than two years after such sale.” 2026 Va. Acts ch. 554 (codified at Code § 13.1-563(A)(4), (B)).
- 21 -Our Supreme Court has observed that “the scope of permissible restraint is more limited
between employer and employee than between seller and buyer.” Linville v. Servisoft of Va.,
Inc., 211 Va. 53, 55 (1970) (quoting Richardson v. Paxton Co., 203 Va. 790, 795 (1962)). The
Court cited Harlan M. Blake, Employee Agreement Not to Compete, 73 Harv. L. Rev. 625,
646-47 (1960). Id. at 55 n.1. Professor Blake explained in that article that the sale of a business
requires the “transfer of good will [that] cannot be effectively accomplished without an
enforceable agreement by the transferor not to act so as unreasonably to diminish the value of
that which he is selling.” Blake, supra, at 646; see also supra note 13 (noting recent legislation
authorizing noncompete agreements ancillary to the sale of a health-care business or franchise).
“Unlike a restraint accompanying a sale of good will, an employee restraint is not necessary for
the employer to get the full value of the thing being acquired—in this case, the employee’s
current services.” Blake, supra, at 647. “Thus, courts properly should, and do, look more
critically to the circumstances of the origin of postemployment restraints than to the
circumstances of other classes of restraints.” Id.
Even though Yu’s noncompete was in the shareholder agreement, the parties have
analyzed the issues surrounding its validity under the standard that applies to noncompetes in
employment agreements. See C&A Br. 19; Yu Br. 14-17. We do the same, assuming without
deciding that it makes no difference that the noncompete was not in Yu’s employment
agreement. See, e.g., AV Auto., LLC v. Bavely, 85 Va. App. 559, 582 n.9 (2025) (relying on the
parties’ joint legal assumption as the basis for not deciding whether it was correct); cf. Roto-Die
Co. v. Lesser, 899 F. Supp. 1515, 1519 (W.D. Va. 1995) (analyzing the noncompete required by
an asset-sale agreement “as equivalent to a case involving an employer and employee” because,
“[i]n similar cases, courts have held the minority shareholder to be in no better bargaining
position than a mere employee”).
- 22 -Under the analysis required by Home Paramount, the one-year duration of Yu’s
noncompete obligation is not the problem. Yu conceded at trial that the one-year restriction was
“reasonable.” Cf. Update, Inc. v. Samilow, 311 F. Supp. 3d 784, 789 (E.D. Va. 2018) (finding
that a “one-year limitation allows [the employer] a reasonable time to convince customers to
remain . . . without interference from [the former employee]”). The noncompete provision is
invalid, however, because it is functionally and geographically overbroad.
1. The noncompete provision is functionally overbroad.
Our Supreme Court has upheld “covenants not to compete . . . only when employees are
prohibited from competing directly with the former employer or through employment with a
direct competitor.” Omniplex, 270 Va. at 249. Noncompete provisions are invalid when they
prohibit a “former employee [from] find[ing] new employment with his former employer’s
competitor in which he engages exclusively in activities that do not compete with the former
employer.” Home Paramount, 282 Va. at 417. Thus, a noncompete provision has been found
invalid when “it prevented the former employee from working in any capacity for a competitor
of her former employer.” Modern Env’ts, Inc. v. Stinnett, 263 Va. 491, 494 (2002) (emphasis
added). In Home Paramount, the functional overbreadth was so great that the noncompete
provision would have prevented the former employee, a pest-control worker, from being “even
. . . a passive stockholder of a publicly traded international conglomerate with a pest control
subsidiary.” 282 Va. at 418.
C&A’s noncompete provision is just as functionally overbroad. It purported to prevent
Yu from being “employed, concerned, or financially interested, either directly or indirectly, in
the same or similar business as that conducted by the Corporation, or compete with the
Corporation.” It thus prevented far more than working for a competitor in a competitive
capacity. It barred Yu from working for any company in a “similar” business, even one that did
- 23 -not compete with C&A. It also barred him from working for a competitor in a capacity that
would not compete with C&A. And it barred him from owning stock in any publicly traded
company in the same industry as C&A. The provision is patently overbroad.
Its functional overbreadth is also illuminated by comparing it to noncompete provisions
that our Supreme Court has upheld as reasonable. For instance, in Advanced Marine Enterprises
v. PRC Inc., 256 Va. 106 (1998), the noncompete did “not contain a blanket prohibition against
working for a competitor. Instead, the covenant merely prohibit[ed] an employee for eight
months from ‘rendering competing services to or, with respect to such services, solicit[ing] any
customer of PRC for whom Employee performed services while employed by PRC, within 50
miles of a PRC office.’” Id. at 119 (second alteration in original). And in Blue Ridge Anesthesia
& Critical Care v. Gidick, 239 Va. 369 (1990), the former employees, medical-equipment
salesmen, were “not forbidden from working in any capacity for a medical equipment company,
or from selling any type of medical equipment. They [were] only prohibited ‘from working in
the medical industry in some role [that] would . . . compete with the business of [Blue Ridge].’”
Id. at 373 (third and fourth alterations in original).
Measured against those cases, C&A’s noncompete provision is so functionally overbroad
that it cannot be saved by other considerations. What was true in Home Paramount is also true
here. “Although [courts] weigh the function element of a provision that restricts competition
together with its geographic scope and duration elements, the clear overbreadth of the function
here cannot be saved by narrow tailoring of geographic scope and duration.” Home Paramount,
282 Va. at 419 (footnote omitted).
2. The noncompete provision is also geographically overbroad.
The noncompete is also invalid because it applied worldwide without good reason. It
literally prevented Yu from working for or being “financially interested, either directly or
- 24 -indirectly, in the same or similar business” anywhere in the world. C&A claims that it needs a
“global” restriction because C&A has sold products to customers in “Herndon, Virginia,”
“Houston, Texas,” and “Burlington, North Carolina.” C&A Br. 20. We are not persuaded. The
Supreme Court in Simmons found a noncompete geographically overbroad because it restricted
the former employee from working for a cigar-importing business “anywhere in the world” when
the company itself had imported cigars only into the “‘east coast of the United States.’” 261 Va.
at 581. The same geographic overbreadth is obvious here.
It is a rare case in which a worldwide noncompete obligation is appropriate. See, e.g.,
O’Sullivan Films, Inc. v. Neaves, 352 F. Supp. 3d 617, 626 (W.D. Va. 2018) (upholding a global
noncompete provision because the employer competed in a “niche market” selling artificial
leather worldwide “to win the same clients for the same projects”). This is not one of them.
C&A has failed to justify a prohibition on Yu’s working for other companies in the many parts
of the world where C&A itself has never done any business.
***
“An employer may prove a seemingly overbroad restraint to be reasonable under the
particular circumstances of the case.” Assurance Data, Inc. v. Malyevac, 286 Va. 137, 144-45
(2013). The employer may “present evidence to demonstrate that the restraints are no greater
than necessary to protect its legitimate business interests, are not unduly harsh or oppressive in
curtailing [the employee’s] ability to earn a livelihood, and are reasonable in light of sound
public policy.” Id. at 145. But C&A failed to carry that burden here. Although Yu’s one-year
noncompete was not excessively long, it was overbroad in function and limitless in geographic
scope. It was clearly broader than necessary to protect C&A’s interests. It threatened Yu’s
- 25 -financial livelihood and deprived the public of his talents during the period it was in effect. So
the trial court was right to invalidate it.14
III. The trial court did not err in refusing to set aside the tortious-interference verdict
(Assignments of Error 2 and 4).
“Virginia currently recognizes two types of tortious-interference claims: tortious
interference with contract; and tortious interference with a contract at will or with business
expectancy.” Allegheny Constr. Co. v. Town of Christiansburg, 86 Va. App. 321, 349 (2025)
(Raphael, J., concurring). The latter type is the one at issue here. To establish a prima facie case
of tortious interference with business expectancy, a plaintiff must show that:
(1) it had a contract expectancy;
(2) [the defendant] knew of the expectancy;
(3) [the defendant] intentionally interfered with the expectancy;
(4) [the defendant] used improper means or methods to interfere
with the expectancy; and
(5) [the plaintiff] suffered a loss as a result of [the defendant]’s
disruption of the contract expectancy.
Maximus, Inc. v. Lockheed Info. Mgmt. Sys. Co., 254 Va. 408, 414-15 (1997) (paragraph breaks
added); see also Hopkins, 88 Va. App. at 154 (same).
C&A challenges only the first and fifth elements. It argues that Yu and CoreAmp
“offered no competent evidence to establish . . . a ‘probable’ future expectancy, much less
damages in the amount of $200,000.” C&A Br. 31. Thus, C&A does not dispute that the
evidence sufficed to show that it used improper methods to intentionally interfere with Yu and
CoreAmp’s dealings with Carolina Biological.
14
C&A argued below that the trial court could sever any illegal portions of the noncompete provision and preserve the rest under paragraph 10(g) of the shareholder agreement. Because C&A has not advanced that claim on appeal, however, we do not consider it. See Rule 5A:20(e).
- 26 -The standard of review is well-settled. “When parties come before us with a jury verdict
that has been approved by the trial court, they hold the most favored position known to the law.”
Syed v. Zh Techs., Inc., 280 Va. 58, 68 (2010) (quoting Banks v. Mario Indus., 274 Va. 438, 450
(2007)). In determining whether the trial court erred in declining to set aside the verdict, we
“consider[] whether the evidence presented, taken in the light most favorable to the plaintiff, was
sufficient to support the jury verdict in favor of the plaintiff.” Boyd v. Weisburg, 75 Va. App.
725, 736 (2022) (alteration in original) (quoting Ferguson Enters., Inc. v. F.H. Furr Plumbing,
Heating & Air Conditioning, Inc., 297 Va. 539, 547-48 (2019)). “We will not set aside a trial
court’s judgment sustaining a jury verdict unless it is plainly wrong or without evidence to
support it.” Id. (quoting Ferguson Enters., 297 Va. at 548).
A. The evidence sufficed to show a probable business expectancy.
The business-expectancy element requires more than “merely a possibility that future
economic benefit would accrue.” Com. Bus. Sys., Inc. v. Halifax Corp., 253 Va. 292, 303
(1997). “[M]ere proof of a plaintiff’s belief and hope that a business relationship will continue is
inadequate to sustain the cause of action.” Id. at 301. “[T]he proof must establish a ‘probability’
of future economic benefit to a plaintiff.” Hopkins, 88 Va. App. at 155 (quoting Halifax, 253
Va. at 301). Put another way, there must be “a reasonable certainty that absent defendant’s
intentional misconduct, plaintiff would have continued in the relationship or realized the
expectancy.” Id. (quoting Halifax, 253 Va. at 300).
The evidence here, taken in the light most favorable to Yu and CoreAmp, sufficed to
show a probability that, but for C&A’s interference, Yu and CoreAmp would have “continued in
the relationship,” id., with Carolina Biological. Yu entered into a nondisclosure agreement with
Carolina Biological in October 2022, “a requirement to do business with them.” Yu testified
without contradiction that in November or December 2022, Carolina Biological invited
- 27 -CoreAmp “to replace [C&A] as a whole completely”; Yu responded, “yes, of course.” Carolina
Biological then “sent [Yu] all the C&A Scientific product list for [Yu] to replace with
[CoreAmp’s] target price.” Yu and CoreAmp had begun performance before C&A interceded;
CoreAmp had completed a $1,000 purchase order.
Yu and CoreAmp’s probable business expectancy in replacing C&A as Carolina
Biological’s vendor was interrupted only when Nash sent his threatening letter, warning Carolina
Biological not to do business with Yu. Carolina Biological told Yu that Nash’s letter required it
to stop working with him and CoreAmp—not simply because Yu had allegedly solicited
business, but because he was already “doing business with” Carolina Biological. Taking the
evidence in the light most favorable to the appellees, the jury could properly find that Yu and
CoreAmp had a probable business expectancy in continued purchases by Carolina Biological.
C&A relies on Halifax, where our Supreme Court affirmed the trial court’s ruling that the
future business expectancy was too uncertain, but Halifax is distinguishable. The company
plaintiff there had a two-year contract with BellSouth to repair and refurbish teleprinters, and the
plaintiff hoped to be awarded a new contract when the existing one expired. Halifax, 253 Va. at
298. The plaintiff had a good working relationship with BellSouth’s contract administrator, who
expressed optimism eight months before the contract expired that it would be renewed. Id. Five
months before the hoped-for renewal, however, BellSouth’s contract administrator was replaced.
Id. The replaced administrator later testified that it was “hard to say” whether he would have
continued to do business with the plaintiff had he remained in the position. Id. at 302. The new
contract administrator expressed concerns about the plaintiff’s performance. Id. at 298. Indeed,
at the time of the renewal, the plaintiff “was experiencing problems that made it a tarnished
participant in the competition among many vendors for BellSouth’s work.” Id. And “there was
no credible evidence of any BellSouth ‘standard practice’ or ‘preference’ for continuing to work
- 28 -with incumbent vendors.” Id. at 303. So the plaintiff had established “merely a subjective belief
or hope that the business relationship would continue,” rather than a probability that it would.
Id.
Yu’s testimony that he had agreed with Carolina Biological to replace C&A as its
equipment vendor evidences the probable business expectancy that was missing in Halifax. Yu
and CoreAmp agreed not only to replace C&A but, unlike the plaintiff in Halifax, they had
already commenced performance. The business expectancy here is closer to what we found
sufficient in Hopkins. The commission salesman there had a longstanding sales relationship with
“Company C.” Hopkins, 88 Va. App. at 155. He alleged “that he had ‘sealed’ Company C’s
commitment to a $1.8 million deal to buy products from [the plaintiff’s company] for [an]
apartment-development project, a deal from which [the plaintiff] would earn substantial
commissions.” Id. While Yu did not testify that he had “sealed” his deal with Carolina
Biological, his testimony that he accepted the company’s offer for CoreAmp to replace C&A as
its equipment vendor suffices to show “a reasonable certainty that absent defendant’s intentional
misconduct, plaintiff would have continued in the relationship or realized the expectancy.”
Halifax, 253 Va. at 300. Thus, we cannot say that the jury’s verdict was “plainly wrong or
without evidence to support it.” Ferguson Enters., 297 Va. at 548.
B. The evidence sufficed to support the damage award.
C&A also argues the trial court erred in allowing “Yu to recover damages based on
nothing but his personal testimony about the value of the allegedly lost business with Carolina
Biological and conjecture about how CoreAmp would perform in the future.” C&A Br. 38.
C&A invokes the common-law “new business rule” that estimating profits for a new business is
inherently speculative compared to measuring the loss to an existing business:
When an established business, with an established earning
capacity, is interrupted and there is no other practical way to
- 29 -estimate the damages thereby caused, evidence of the prior and
subsequent record of the business has been held admissible to
permit an intelligent and probable estimate of damages. . . . But
where a new business or enterprise is involved, the rule is not
applicable for the reason that such a business is a speculative
venture, the successful operation of which depends upon future
bargains, the status of the market, and too many other
contingencies to furnish a safeguard in fixing the measure of
damages.
Com. Bus. Sys. v. Bellsouth Servs., 249 Va. 39, 50 (1995) (alteration in original) (quoting Mullen
v. Brantley, 213 Va. 765, 768 (1973)).
But the common-law new-business rule reflected in those cases was superseded by statute
in 2002. See 2002 Va. Acts ch. 624, codified at Code § 8.01-221.1. None of the parties
mentioned this statute either in the trial court or on brief here. Under the statute, “[d]amages for
lost profits of a new or unestablished business may be recoverable upon proper proof. A party
shall not be deemed to have failed to prove lost profits because the new or unestablished business
has no history of profits.” Code § 8.01-221.1.
Because C&A has never claimed that Yu’s damages testimony was insufficient under
Code § 8.01-221.1, we have no need to determine what counts as “proper proof” under the
statute. Doing so is unnecessary here because C&A failed to object at trial to the basis for Yu’s
damages estimate.
Yu explained that when Carolina Biological asked him to replace C&A as its vendor, it
gave him C&A’s “product list for [him] to replace with [CoreAmp’s] target price.” Yu testified
that “the net value of this agreement” to CoreAmp was “$300,000 a year.” Giving Yu and
CoreAmp the benefit of all facts and “fair inferences,” Camann, 79 Va. App. at 431, it is a fair
inference that the $300,000 figure represents the net profit after multiplying the items on the
product list by the target price and subtracting CoreAmp’s costs to arrive at “net value.”
- 30 -C&A failed to object at trial that Yu’s estimate should have been excluded as speculative
or as lacking foundation. C&A might have argued that it was not “proper proof” of lost profits
for a “new or unestablished business.” Code § 8.01-221.1. But C&A allowed that testimony to
come into evidence. And when “a litigant sits by and permits evidence to go to the jury which
the court, if it had been objected to, would have excluded, the jury have the right and it is their
duty to consider it along with all the evidence and give it such weight as they think it is entitled
to.” Bitar v. Rahman, 272 Va. 130, 141 (2006) (quoting TransiLift Equip., Ltd. v. Cunningham,
234 Va. 84, 91-92 (1987)). We need not explore the outer limits of the waiver principle in Bitar.
It suffices under the facts of this case that Yu and CoreAmp established “‘sufficient facts’ to
support the award.” Preferred Sys. Sols., Inc. v. GP Consulting, LLC, 284 Va. 382, 399 (2012).
IV. The trial court committed no reversible error in admitting the English translation of the
“blackmail” letter (Assignment of Error 3).
Finally, C&A argues that the trial court abused its discretion by admitting the English
translation of the “blackmail” letter into evidence. C&A frames this as an “authentication”
problem under Virginia Rule of Evidence 2:901 (“The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the thing in question is what its proponent claims.”). It argues that “no
competent direct or circumstantial evidence was introduced to show that the English language
document was a ‘genuine’ translation of the letter, i.e., the ‘thing in question.’” C&A Br. 26.
We reject C&A’s argument on two independent grounds.
First, this argument is different from the one C&A advanced below and is therefore not
preserved for review. “Rule 5A:18 requires a litigant to make timely and specific objections.”
Carolino, 303 Va. at 409 (quoting Brown v. Commonwealth, 279 Va. 210, 217 (2010)). The
purpose “is to alert opposing counsel to the issue and to provide the trial court an opportunity to
intelligently rule on the issue.” Id. “Procedural-default principles require that the argument
- 31 -asserted on appeal be the same as the contemporaneous argument at trial.” Bethea v.
Commonwealth, 297 Va. 730, 743 (2019) (emphasis added). And it “must be both specific and
timely—so that the trial judge would know the particular point being made in time to do
something about it.” Id. (quoting Dickerson v. Commonwealth, 58 Va. App. 351 (2011)).
“Specific, timely objections are required because they are often resolved, either because the trial
court intervenes with a corrective ruling that accommodates the asserted interests of both sides or
because opposing counsel gives a winning explanation that moots the objection altogether.”
Id. at 744.
As noted above, C&A raised only two objections when Yu moved to admit the English
translation at trial. C&A no longer pursues its claim that the document was not produced in
discovery, given its admission that its prior counsel had a copy before suit was filed.
The other objection was that the English version was “not [a] certified translation and
under the court policies on translations, it should be a certified translation.” C&A cited the
Virginia Language Access Plan Manual, prepared by the Office of the Executive Secretary of the
Supreme Court of Virginia.15 Although C&A said during the course of argument that “we have
no idea the accuracy of the translation,” that was in the context of its complaint that the
translation had not been certified. The court responded that C&A could call its own translator in
rebuttal if it wished, and C&A’s counsel proffered that “I do have a witness [who] would like to
talk about the difference between the translations.” C&A later restated that its objection “was
that [the English version] wasn’t a certified translation.” (Emphasis added.) C&A never argued
that Yu failed to testify that the English translation was accurate.
15
See Virginia Language Access Plan Manual (Office of Exec. Sec’y July 2024),
https://perma.cc/5P8C-BC8W.
- 32 -On appeal, C&A has dropped its claim that a certified translation was required. It has
instead put “a different twist on [the] question that is at odds with the question presented to the
trial court.” Bethea, 297 Va. at 744 (quoting Commonwealth v. Shifflett, 257 Va. 34, 44 (1999)).
C&A now argues that Yu’s testimony was insufficient to admit the English translation because
Yu did not show that he translated it accurately. E.g., C&A Br. 28 (“[T]he testimony showed
that the English translation was done in 2023, before Yu says he tested as an interpreter.”). C&A
claims that Yu’s testimony was not “sufficient to support a finding that the thing in question is
what its proponent claims.” Va. R. Evid. 2:901.
But that objection differs in kind from the one raised below and failed to alert the trial
judge to the argument that C&A advances on appeal. Cf. Carolino, 303 Va. at 410 (holding that
defendant’s objections in the trial court that the proffered testimony was irrelevant, elicited prior
bad acts, and was beyond the scope of direct examination did not alert the trial court to the
specific argument that it constituted improper impeachment on a collateral matter). Had C&A
argued below that Yu failed to lay a proper foundation by testifying that his English translation
was accurate, Yu could have cured that omission. Indeed, Yu points out on brief that he later
testified without objection that the English translation “fairly and accurately represents the
Chinese original.” Yu Br. 36.
We also find that any error in the admission of the English translation was harmless.
“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can
conclude that the error at issue could not have affected the court’s result.” Loan Funder LLC,
Series 715 v. Farm Life, LLC, 86 Va. App. 552, 567 (2026) (quoting Ferrara v. Commonwealth,
299 Va. 438, 450 (2021)). “Absent an error of constitutional magnitude, ‘no judgment shall be
arrested or reversed’ [w]hen it plainly appears from the record and the evidence given at the trial
- 33 -that the parties have had a fair trial on the merits and substantial justice has been reached.’”
Ferrara, 299 Va. at 450 (alteration in original) (quoting Code § 8.01-678).
C&A complains that the alleged error was not harmless because “Yu repeatedly referred
to the letter as ‘blackmail,’ and [as] ‘threaten[ing]’ to him, in front of the jury. The admission of
the unauthenticated English document thus had a plainly prejudicial effect on the trial.” C&A
Br. 30 (citations omitted).
We disagree and find that the English translation was immaterial to the outcome. C&A
did not object to the admission of the original “blackmail” letter, written in Mandarin. It did not
object when Yu referred to it repeatedly as the “blackmail” letter. Nor did C&A object when Yu
testified that the blackmail letter threatened him and demanded a “forever noncompete.” So
C&A waived any objection to that evidence under Rule 5A:18. And given that waiver, the
marginal prejudice to C&A from the English translation was negligible. The trial court also
invited C&A to call its own translator if it wished, but C&A never did. Indeed, C&A has never
proffered—either in the trial court or here—specifically what in the English translation was
inaccurate let alone how that inaccuracy could have affected the outcome.16 In short, any error in
admitting the English translation was harmless because “it plainly appears from the record and
the evidence given at the trial that the parties have had a fair trial on the merits and substantial
justice has been reached.” Code § 8.01-678.
CONCLUSION
The trial court was right to invalidate the noncompete as overbroad. The court properly
denied C&A’s motion to set aside the jury verdict on the tortious-interference claim. And there
16
We have scoured C&A’s opening brief and reply brief for references to any alleged prejudice suffered by C&A from the admission of the English translation, including references to the three trial transcripts that were not timely filed. Even if those late-filed transcripts were properly part of the record—a question we do not resolve—none of C&A’s citations persuades us that excluding the English translation would have changed the jury’s verdict.
- 34 -was no reversible error in the trial court’s decision to admit the English translation of the
“blackmail” letter.
Affirmed.
- 35 -