PRESENT: All the Justices 

ASSURANCE DATA, INC. 

 OPINION BY 

v. Record No. 121989 CHIEF JUSTICE CYNTHIA D. KINSER 

 SEPTEMBER 12, 2013 

JOHN MALYEVAC 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Robert J. Smith, Judge 

 This appeal concerns an employer's action to enforce 

certain provisions of an employment agreement that, among other 

things, restrain competition. In sustaining a demurrer, the 

circuit court resolved the employee's challenge to the 

enforceability of the restraints on competition. Because a 

demurrer cannot be used to decide on the merits whether a 

restraint on competition is enforceable, we will reverse the 

circuit court's judgment. This case is an example in which the 

trial court "'incorrectly . . . short-circuited litigation 

pretrial and . . . decided the dispute without permitting the 

parties to reach a trial on the merits.'" CaterCorp, Inc. v. 

Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 

(1993) (quoting Renner v. Stafford, 245 Va. 351, 352, 429 S.E.2d 

218, 219 (1993)); see also Breeding v. Hensley, 258 Va. 207, 

214, 519 S.E.2d 369, 372 (1999). 

I. RELEVANT FACTS AND PROCEEDINGS 

John Malyevac and Assurance Data, Inc. (ADI) entered into 

an agreement (the Agreement), pursuant to which Malyevac sold 
2 

ADI's computer products and services to its customers. As 

relevant to the issues on appeal, the Agreement contained noncompete, non-solicitation, non-disclosure, and return of 

confidential information provisions. Specifically, paragraph 5 

required that Malyevac 

shall not, during the term of this Agreement 

and for 6 months after the termination 

hereof (within a fifty (50) mile radius of 

[ADI's] Virginia office(s)), solicit, 

provide, promote or sell, directly or 

indirectly, except through and for the 

direct benefit of [ADI]: 

(a) computer, software or hardware products 

in competition with the products which are 

available through [ADI]; (b) services for 

customers or prospective customers that are 

competitive with services provided by or 

available through [ADI]; or 

(c) training, managed services, 

installation, implementation or related 

professional services for software and/or 

hardware which are provided by [ADI], except 

as pre-approved in writing by [ADI]. 

 Under paragraph 10, Malyevac agreed that he would not 

at any time during or after the term of this 

Agreement use . . . or disclose any 

Confidential Information to any person 

whatsoever (except for the sole purpose of 

selling [ADI's] services and products for 

[ADI] in a good faith and professional 

manner as provided herein), or permit any 

person whatsoever to examine and/or make 

copies of any reports or any information or 

documents prepared by him/her or that come 

into his/her possession or under his control 

by reason of his/her consulting services, 

and that upon termination of this Agreement 

he/she will turn over to [ADI] all 
3 

Confidential Information, including, without 

limitation, all copies thereof, in any 

format whatsoever, and any documents, papers 

and other items in his/her possession or 

under his/her control that relate to [ADI]. 

 

 Next, in paragraph 12, Malyevac agreed that 

 

[e]xcept for the sole benefit of [ADI] and 

consistent with the terms hereof, during the 

term hereof, and for a period of twelve (12) 

after the date of termination hereof, [he] 

will not, directly or indirectly, seek, 

engage in or solicit, from any "Company 

Customer" (as hereafter defined) any 

business which is competitive with [ADI's] 

offering of services or products or in any 

way discourage client or customer usage of 

[ADI's] services or products. A "Company 

Customer" shall mean any past, present or 

prospective customers of [ADI] or its 

subsidiaries, with whom [Malyevac] has been 

in contact or obtained contact/user 

information in connection with his/her 

consulting activities for [ADI] or its 

vendors. 

Finally, in paragraph 17(b), Malyevac agreed that 

upon termination of the Agreement, he would 

[d]eliver to [ADI] all [ADI] or [ADI's] 

customer or vendor keys, passwords, 

property, equipment, vendor marketing info 

and materials, data, reports, summaries, 

test results, computer software, and such 

other items and materials and/or 

Confidential Information (and copies 

thereof) as may have been prepared for 

and/or accumulated by [Malyevac] in 

performing this Agreement or services for 

[ADI], whether completed or in process 

(including all copies thereof in whatever 

format). 
4 

A few months after entering into the Agreement, Malyevac 

resigned. Subsequently, ADI filed a complaint in the circuit 

court alleging that Malyevac was violating paragraphs 5, 10, 12, 

and 17(b) of the Agreement by performing work and services and 

selling products in direct competition with ADI, by engaging in 

other prohibited activities, and by failing to return 

confidential information. ADI requested injunctive relief, the 

return of all confidential information, and compensatory 

damages. 

 In response, Malyevac filed a demurrer, asserting that 

ADI's allegations set forth in the complaint fail to state a 

claim upon which relief may be granted. Malyevac specifically 

asserted that the Agreement's non-compete and non-solicitation 

provisions are overbroad and thus unenforceable. At a hearing 

on the demurrer, Malyevac pointed out, as an example, that the 

non-solicitation requirements in paragraph 12 are in force for a 

period of "twelve (12)" but that language indicating whether the 

duration is days, weeks, months or years is omitted. Due to the 

over-breadth, Malyevac argued that a demurrer can be used to 

challenge the provisions' enforceability. 

 ADI responded that a demurrer only tests whether a cause of 

action has been pled and that it cannot be used to decide the 

merits of a claim. Acknowledging its burden to demonstrate the 

reasonableness of the provisions restraining competition, ADI 
5 

argued that it was entitled to present evidence to meet that 

burden. Thus, according to ADI, a demurrer cannot be used to 

determine whether the restraints are enforceable. 

 The court sustained the demurrer without granting ADI leave 

to amend its complaint. Explaining its decision, the circuit 

court stated: 

So then the question becomes why can't we do 

it with a demur[rer] if the court finds as a 

matter of law that a contract, a part of a 

contract is unenforceable then to state, to 

bring a lawsuit based on that unenforceable 

contract . . . fails to state a cause of 

action. 

Applying that rationale, the court concluded "as a matter of law 

the provision is unenforceable." The court entered a final 

order dismissing the action with prejudice. 

 We awarded ADI this appeal. The dispositive question is 

whether the circuit court erred by using a demurrer to decide, 

on the merits, the enforceability of the Agreement's non-compete 

and non-solicitation provisions.1

 1

 At the hearing on the demurrer, the parties' arguments 

focused primarily on the enforceability of the Agreement's noncompete and non-solicitation provisions and whether that issue 

could be decided on demurrer. Malyevac, however, also argued at 

that hearing and in a memorandum in support of the demurrer that 

the allegations concerning Malyevac's violation of paragraphs 10 

and 17(b) requiring non-disclosure and return of confidential 

information, respectively, are conclusory and therefore 

insufficient to state a claim, and that the complaint fails to 

identify actual damages suffered by ADI as a result of 

Malyevac's alleged actions. The circuit court did not address 

these arguments but sustained the demurrer as to the entire 
6 

II. ANALYSIS 

The purpose of a demurrer is to determine whether a 

complaint states a cause of action upon which the requested 

relief may be granted. Dunn, McCormack & MacPherson v. 

Connolly, 281 Va. 553, 557, 708 S.E.2d 867, 869 (2011). "A 

demurrer tests the legal sufficiency of facts alleged in 

pleadings, not the strength of proof." Id. (internal quotation 

marks omitted). Thus, unlike a motion for summary judgment, a 

demurrer "does not allow the court to evaluate and decide the 

merits of a claim." Fun v. Virginia Military Inst., 245 Va. 

249, 252, 427 S.E.2d 181, 183 (1993); see also Concerned 

Taxpayers v. County of Brunswick, 249 Va. 320, 327-28, 455 

S.E.2d 712, 716 (1995). 

 

complaint, including the allegations regarding paragraphs 10 and 

17(b), for the stated reason that "as a matter of law the 

provision is unenforceable." 

In a motion to reconsider, ADI pointed out that Malyevac 

challenged only the enforceability of the non-compete and nonsolicitation provisions and that he asserted other reasons in 

the demurrer and supporting memorandum as to why the allegations 

asserting violations of paragraphs 10 and 17(b) fail to state a 

claim. ADI argued that the circuit court's order sustaining the 

demurrer and dismissing the entire complaint did not accurately 

reflect its ruling that pertained only to the non-compete and 

non-solicitation provisions. The circuit court denied the 

motion to reconsider, stating that its prior order was an 

accurate statement of the court's ruling on the demurrer. Thus, 

the circuit court sustained the demurrer and dismissed the 

complaint with prejudice and without leave to amend because "as 

a matter of law the provision is unenforceable." When the 

circuit court used the term "the provision," it did not specify 

to which provision it was referring. We will address them 

collectively. 
7 

Like the circuit court, "we consider as true all the 

material facts alleged in the . . . complaint, all facts 

impliedly alleged, and all reasonable inferences that may be 

drawn from such facts." Concerned Taxpayers, 249 Va. at 323, 

455 S.E.2d at 713. When a complaint "contains sufficient 

allegations of material facts to inform a defendant of the 

nature and character of the claim, it is unnecessary for the 

pleader to descend into statements giving details of proof in 

order to withstand demurrer." CaterCorp, 246 Va. at 24, 431 

S.E.2d at 279. "[E]ven though a . . . complaint may be 

imperfect, when it is drafted so that defendant cannot mistake 

the true nature of the claim, the trial court should overrule 

the demurrer." Id. "'Because the decision whether to grant a 

demurrer involves issues of law, we review the circuit court's 

judgment de novo.'" Dunn, McCormack & MacPherson, 281 Va. at 

557, 708 S.E.2d at 869 (quoting Abi-Najm v. Concord Condo., LLC, 

280 Va. 350, 357, 699 S.E.2d 483, 487 (2010)). 

Citing the decisions in Modern Environments, Inc. v. 

Stinnet, 263 Va. 491, 561 S.E.2d 694 (2002), and Home Paramount 

Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 

(2011), Malyevac argues that the circuit court did not err in 

sustaining the demurrer because the Agreement's non-compete and 

non-solicitation provisions are overbroad on their face and 

therefore unenforceable. According to Malyevac, when analyzing 
8 

overly broad restraints on competition, a court could determine 

that no amount of evidence would render the restraints 

reasonable and enforceable. As it did before the circuit court, 

ADI argues that in the context of ruling on a demurrer, the 

court could not decide the merits of Malyevac's challenge to the 

enforceability of these provisions. To do so, according to ADI, 

denies it the opportunity to present evidence that the 

restraints are reasonable and no greater than necessary to 

protect its legitimate business interests. 

An agreement that restrains competition "must be evaluated 

on its own merits, balancing the provisions of the contract with 

the circumstances of the businesses and employees involved." 

Omniplex World Servs. Corp. v. US Investigations Servs., Inc., 

270 Va. 246, 249, 618 S.E.2d 340, 342 (2005). Each case 

involving the enforceability of a restraint on competition "must 

be determined on its own facts." Modern Env'ts, 263 Va. at 493, 

561 S.E.2d at 695. The employer bears the "burden to show that 

the restraint is no greater than necessary to protect a 

legitimate business interest, is not unduly harsh or oppressive 

in curtailing an employee's ability to earn a livelihood, and is 

reasonable in light of sound public policy." Id. In 

determining whether an employer has carried that burden, "we 

consider the 'function, geographic scope, and duration' elements 

of the restriction." Home Paramount, 282 Va. at 415, 718 S.E.2d 
9 

at 764 (quoting Simmons v. Miller, 261 Va. 561, 581, 544 S.E.2d 

666, 678 (2001)). "We assess these elements together rather 

than as distinct inquiries," and to be enforceable the agreement 

must be found reasonable as a whole. Preferred Sys. Solutions, 

Inc. v. GP Consulting, LLC, 284 Va. 382, 393, 732 S.E.2d 676, 

681 (2012) (citing Home Paramount, 282 Va. at 415-16, 718 S.E.2d 

at 764). 

The premise running through Simmons, Modern Environments, 

Home Paramount, and our other decisions is that restraints on 

competition are neither enforceable nor unenforceable in a 

factual vacuum. Based on evidence presented, a trial court must 

ascertain whether a restraint "'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.'" Home Paramount, 282 Va. at 415, 

718 S.E.2d at 763-64 (quoting Omniplex World Servs., 270 Va. at 

249, 618 S.E.2d at 342); Modern Env'ts, 263 Va. at 493, 561 

S.E.2d at 695. An employer may prove a seemingly overbroad 

restraint to be reasonable under the particular circumstances of 

the case. Simmons, 261 Va. at 581, 544 S.E.2d at 678 (citing 

cases).2

 2 Contrary to Malyevac's argument, our decision in Modern 

Environments does not support his assertion that a restraint on 

competition can be found unenforceable as a matter of law 

without the presentation of evidence. There, the employer 
10 

 As explained earlier, a demurrer has one purpose - to 

determine whether a complaint states a cause of action upon 

which the requested relief may be granted. Dunn, McCormack & 

MacPherson, 281 Va. at 557, 708 S.E.2d at 869. In ruling on the 

demurrer, the circuit court, however, examined the Agreement's 

non-compete and non-solicitation provisions and determined that 

the provisions are overbroad and thus unenforceable as a "matter 

of law." The court ruled on the merits of whether the Agreement 

is enforceable without permitting ADI to 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 Malyevac's ability to earn a 

livelihood, and are reasonable in light of sound public policy.3

 

See Modern Env'ts, 263 Va. at 493, 561 S.E.2d at 695. 

 

failed to offer argument or evidence to prove its legitimate 

business interests were served by the particular restraint at 

issue. 263 Va. at 495-96, 561 S.E.2d at 696. In contrast, ADI 

opposed the demurrer precisely on the ground that it sought to 

present evidence to prove that the restraint is reasonable and 

no greater than necessary to protect its legitimate business 

interests.

3 Because a demurrer cannot be used to decide the merits of 

a claim alleged in a complaint, we disagree with Malyevac's 

assertion that this Court cannot review the circuit court's 

decision because ADI failed to proffer the evidence that it 

would have introduced to support the enforceability of the 

provisions restraining competition.
11 

III. CONCLUSION 

 Because "[a] demurrer does not permit the trial court to 

evaluate and decide the merits of the claim set forth in a . . . 

complaint," Concerned Taxpayers, 249 Va. at 327, 455 S.E.2d at 

716, the circuit court erred when it sustained Malyevac's 

demurrer on the ground that "the provision is unenforceable" as 

a matter of law and dismissed the entire complaint for that 

reason. Therefore, we will reverse the circuit court's judgment 

sustaining the demurrer and remand the case for further 

proceedings.4

Reversed and remanded. 

JUSTICE McCLANAHAN, concurring. 

Because an employer is entitled to present evidence to 

prove its restraints on competition are reasonable under the 

particular circumstances, I agree the circuit court erred in 

sustaining the demurrer. I would end my analysis there. 

 4

 In light of our decision, it is not necessary to address 

ADI's other assignments of error.