{1} In this сase we decide several issues of first impression concerning an employer’s purported assignment of an employee’s non-competition agreement. Plaintiff Jack T. Campbell signed a written employment agreement that included an arbitration provision. Shortly thereafter, Campbell’s employer sold most of its assets to Defendant Millennium Ventures, LLC (Millennium) pursuant to the terms of an asset purchase agreement. Campbell filed a complaint for declaratory judgment requesting a determination that Millennium was not a party to the employment agreement. In responsе, Millennium requested and obtained summary judgment determining that Millennium was entitled to enforce the employment agreement, including the arbitration provision, against Campbell. On appeal, Campbell argues that the employment agreement was not assignable and, even if it were, the purchase agreement did not validly assign the employment agreement. We affirm.
BACKGROUND
{2} In September 1998, Campbell entered into the employment agreement with Sehreiber Insurance Agency, Inc. (Agency). The employment agreement stated that Campbell would sell insurance on behalf of Agency and that either рarty could terminate the agreement, with or without cause, with thirty days written notice.
{3} Sections 5 and 6 of the employment agreement primarily benefitted Campbell. Section 5 granted Campbell a “vested equity interest” in the insurance business he produced during his employment. Section 5 reads, in relevant part:
In the event of the Employee’s retirement, termination of employment or death, whichever occurs first, the Employer agrees to pay to the Employee or [his beneficiary] the Employee’s vested equity interest in the ... insurance accounts the Employee sold while emplоyed by the Employer. The Employer shall make an initial down payment of twenty-five [percent] (25%) of the amount due under this paragraph within 30 days of termination, retirement or death, with the balance payable monthly over five (5) years.... In exchange for this guaranteed purchase, the Employee agrees to the non-disclosure and non-solicitation constraints and conditions set forth below.
Section 5 also set out a vested equity payout formula based upon years of service and the amount of annual commissions Campbell earned. Section 6 promised the vested equity payout set forth in Section 5 “in the event that the Employer shall discontinue operating its business.” Section 6 also provided that “this contract shall remain binding upon the Employer’s successors and the Employee.”
{4} Sections 11 and 12 of the employment agreement served to benefit Agency. Section 11, entitled “Non-Solicitation Agreement,” read in part:
The Employee covenants ... that for a period of three (3) years from and after the termination of employment with the Employer, however such termination occurs, the Employee shall not, directly or indirectly ... solicit, attempt tо solicit, or accept any insurance business ... from any customer or account on the books of the Employer at the time Employee’s employmentshall terminate, or within twelve (12) months prior thereto, or from any person ... or corporation [who] has been solicited on behalf of the Employer at any time during the twelve (12) months prior to the termination of the Employee’s employment. ...
Section 12 provided monetary damages for breach of Section 11 including the costs and attorney’s fees incurred to enforce this provision.
{5} Sections 16 and 18 were general prоvisions addressing the law governing the employment agreement and the employment agreement’s binding effect. Section 16 required “[a]ll disputes under this agreement [to] be arbitrated pursuant to the rules of the American Arbitration Association and the prevailing party [to] be entitled to payment of their reasonable attorney’s fees and costs.” Section 18 provided that the “Agreement shall inure to the benefit of and shall be binding upon the parties, their successors, assigns, or personal representatives; however, the Employee may not transfer or assign Employee’s obligations under this Agreement.”
{6} About a month after Campbell signed the employment agreement, F. Don Schreiber, president of Agency, negotiated with Millennium for the sale of his insurance business. During negotiations, Millennium sent a letter to Schreiber memorializing the parties’ initial negotiations, including a stipulation that Campbell “enter into a new non-compete agreement with our agency, similar to [his] existing agreement with [Agency]” and that the “interests of ... Jack Campbell in [his] books of business with [Agency] will be satisfied by [Agency].” Schreiber’s response acknowledged that “Jack [is] free to do as [he] wishfes] at the time of sale. [He] mаy quit or stay, sign or not. I have no control on what [he does] past point of sale. [He is] bound by the existing agreement as respects [his] business, only. I will encourage [him] to stay, but that is all I can do.”
{7} In December 1998, Millennium and Agency entered into the purchase agreement for the purchase and sale of “substantially all of [the] assets” of Agency for $540,000 plus accounts receivable. The provisions of the purchase agreement are discussed in detail below.
{8} After the purchase was complete, Agency paid Campbell approximately $103,000 for his vested equity interest in his accounts рursuant to the formula set out in Section 5 of the employment agreement. Agency paid Campbell additional amounts over the next few months for the accounts sold to Millennium in accordance with the ’ vesting schedule set forth in Section 5.
{9} Campbell worked for Millennium until mid-January 1999, when he resigned, alleging that Millennium had refused to honor the terms of the employment agreement. Campbell began working for a competitor of Millennium and began soliciting some of the customers he had served while employed by Agency. Millennium argued that Campbell’s actions breached the non-solicitation provisions found in Section 11 of the employment agreement, while Campbell argued that Millennium’s prior breach of the employment agreement barred Millennium from enforcing the terms of the employment agreement.
{10} Millennium filed a demand for arbitration seeking money damages for Campbell’s alleged violations of the non-solicitation provisions of the employment agreement. Campbell, initially believing that Agency had transferred the employment agreement at the time it sold the assets, submitted to arbitration and counterclaimed that Millennium had breached the employment agreement. When subsequent discovery revealed the actual wording of the purchase agreement, Campbell concluded that Millennium had not validly acquired the employment agreement because Millennium was an assignee, not a successor in interest. Campbell then filed a complaint for declaratory judgment and a motion for summary judgment in district court seeking a determination that the employment agreement was an unassignable personal services contract and that Millennium was not a party to and did not and could not acquire any rights in the employment agreement by virtue of the purchase agreement.
{11} Millennium answered and filed a cross motion for summary judgment seeking
{12} The court entered summary judgment for Millennium, finding that the parties intended the employment agreement to be assignable and that it was assigned to Millennium through the purchase agreement. The court stayed arbitration pending the outcome of this appeal.
DISCUSSION
Standax-d of Review
{13} The parties dispute the applicable standard of review. Relying on Fernandez v. Farmers Insurance Co.,
{14} The court found that thе employment agreement was valid and assigned to Millennium in the purchase agreement, and thus the arbitration agreement was enforceable. The court’s order granting summary judgment and compelling arbitration disposed of all issues brought in the action, and it is therefore ripe for review. See Corn v. N.M. Educators Fed. Credit Union,
Standard for Interpreting the Employment Agreement and the Purchase Agreement
{15} “Interpretation of an unambiguous contract is a question of law which we review de novo.” Nearburg v. Yates Petroleum Corp.,
The Employment Agreement Was Assignable
{16} We first consider whether the employment agreement was assignable. If the employment agreement was unassignable for any reason, any attempt to assign it in the purchase agreement would have been futile. Campbell argues that the terms of Section 6 of the employment agreement establish that he never consented to assignment. He also argues that the employment agreement was unassignable because it was a personal services contract, and consequently, assignment would have been a restraint of trade.
Campbell Consented to Assignment
{17} Although this is an issue of first impression in New Mexico, other jurisdictions have held that an employee consents to assignment of an employment agreement if the agreement expressly binds and benefits successors or assigns. See, e.g., Saliterman v. Finney,
{18} Campbell contends that he did not consent to assignment of the employment agreement because Section 6 of the employment agreement, which provides for payment of an employee’s vested equity interest, binds only “suсcessors” and not “assignees.” However, Section 18 of the employment agreement binds successors and assigns. Campbell contends that the language of Section 18 should be ignored in light of the more specific language of Section 6. We disagree. Section 6 addresses only the employee’s equity interest. Here, Millennium is seeking to enforce the non-solicitation and arbitration provisions of the employment agreement, which are found in Sections 11 and 16. The obligations and benefits found in these Sections are assignable pursuant to Section 18 of the employment agreement which benefits and binds “successors [and] assigns” of the parties to the “Agreement.” Thus, Campbell consented to the assignment of Sections 11 and 16 and the employment agreement as a whole by agreeing to language contained in Section 18. Although Campbell contends that he never intended to consent to such assignment, his contentions are not persuasive in light of the clear language of Section 18 of the employment agreement. See Ponder,
{19} Mоreover, Section 6 applies only in the event “the Employer” ceases operation of the business and obligates “the Employer” to make the payments described in Section 5 to Campbell. Therefore, the “successors” provision of Section 6 would be triggered only if “the Employer” failed to make the payments promised to Campbell in that section. Here, Campbell received these payments in accordance with the vesting schedule set forth in Section 5. Even though Agency, not Millennium, made the initial $103,000 payment to Campbell, Agency made this payment after reсeiving $455,000 from Millennium for purchase of “goodwill” and Millennium, acknowledging that Campbell was entitled to these payments, expressly conditioned its acceptance of the purchase agreement on Agency’s agreement to make these payments. Thus, the “successors” provision of Section 6 never came into play.
A Personal Services Contract May Be Assigned With Consent
{20} Campbell contends that assigning the employment agreement and the non-solicitation
{21} Campbell has not directed us to any case in which a court refused to enforce an employment contract, even if it was considered to be a personal services contract, when the agreеment contained language indicating consent to the assignment. By contrast, many cases have held to the contrary. See, e.g., Pino v. Spanish Broad. Sys. of Fla., Inc.,
{22} New Mexico case law does not suggest any policy reasons for prohibiting the assignment of personal services contracts. Indeed, our courts have previously acknowledged that reasonable restrictive covenants in an employment agreement are acceptable even if the covenants restrain trade or competition to some degree. See Manuel Lujan Ins., Inc. v. Jordan,
Campbell Did Not Preserve His Argument Regarding Material Alteration of the Agreement’s Terms
{23} Campbell also contends that the assignment was invalid because it incrеased the risks and burdens to Campbell by changing the nature of the employment relationship. Campbell claims the assignment adversely affected his rights to commission and deferred compensation, increased competition among agents, and “put [him] in the position of working for one man he did not get along with and three people he did not know.”
{24} Millennium maintains that Campbell failed to preserve this argument because he did not explicitly raise it below. We agree that Campbell’s arguments to the trial court contained no discussion of the character of his employment with Millennium аnd no suggestión
The Purchase Agreement Assigned the Employment Agreement
{25} Campbell contends that, even if he consented to assignment of the employment agreement in general, the assignment was invalid because the purchase agreement did not specifically identify the employment agreement as one of the assets being purchased. We review the language of the purchase agreement and the surrounding circumstances to determine whether the purchase agreement included the employment agreement. See Benton v. Albuquerque Nat’l Bank,
{26} The following provisions of the purchase agreement are relevant to this issue. The “whereas” section provides that seller desires to sell and buyer desires to purchase, “substantially all of [the seller’s] assets.” Section 1 provides that “Seller agrees to sell and Buyer agrees to buy the assets, except those excluded under Section [5].” Section 5 excludes specific assets, but does not list the employment agreement аs an excluded asset. Section 2 sets out the “assets to be purchased” and does not include the employment agreement, but does list “goodwill” with an assigned value of $455,000.
{27} We are not aware of any New Mexico cases addressing whether the purchase and sale of the goodwill of a business should be interpreted as including the purchase and sale of an employment agreement with a non-solicitation clause when that employment agreement is not explicitly included in a list of the assets purchased. However, this Court has recognized the connection between non-competition agreements and goodwill. In Mitchell v. Mitchell,
{28} Courts in other jurisdictions have held that the sale of goodwill implicitly in-eludes the sale of an employment agreement. See Torrington Creamery, Inc. v. Davenport,
{29} The cases Campbell does cite in support of his theory are distinguishable. For example, in Alldredge v. Twenty-Five Thirty-Two Broadway Corp.,
{30} Campbell cites Benton in support of his theory that New Mexico does not recognize assignments by implication. However, in Benton we recognized the validity of the assignment as long as the language of the assignment and the surrounding circumstances “reveal[ ] an intent by the owner to transfer a present interest in the [subject property].”
{31} Campbell contends the circumstances surrounding the purchase agreement support the conclusion that the parties did not contemplate inclusion of the employment agreement in the purchase agreement. However, the only evidence of pre-contract negotiations — the letters between Millennium- and Schreiber — refutes Campbell’s argument. These letters reflect the understanding of both Millennium and Schreiber that Campbell’s existing employment agreement impacted the purchase. They acknowledged that Campbell was “bound by the existing agreement as respects [his] business, only.”
{32} Campbell also argues that, because the purchase agreement specifically required a non-competition agreement by Schreiber, the failure to mention the employment agreement signified an intent to exclude the employment agreement from assignmеnt. However, Schreiber’s non-competition agreement was specific to, and did not pre-exist, the purchase agreement, and it is therefore distinguishable from Campbell’s employment agreement which was a pre-existing asset of the insurance agency.
{33} Moreover, logic suggests that the goodwill sold included the employment agreement. Millennium paid $455,000 for Agency’s “goodwill” which would be rendered worthless if the two agents identified with Agency were free to solicit the very customers they had previously contacted on behalf of Agency. See Mohawk Maint. Co. v. Kessler,
{34} In summary, the fact that the employment agreement was not listed in the purchase agreement as an excluded asset, the circumstances surrounding the purchase agreement, and the reasonable meaning of “goodwill” persuade us that the purchase agreement included assignment of the employment agreement. Because of this resolution, we need not address Campbell’s arguments regarding ratification and equity. We hold the trial court properly determined that the employment agreement’s arbitration clause was enforceable.
Attorney Fees
{35} Pursuant to the employment agreement, Millennium argues that it is entitled to its attorney fees and costs if it prevails in this appeal. We disagree. The issue of attorney fees and costs is a subject for the arbitration proceeding. See Winrock Inn Co. v. Prudential Ins. Co.,
Rules Violation
{36} We note that Campbell’s reply brief exceeded the page limit imposed by Rule 12-213(F) NMRA 2002. Although the rule states that “the argument portion of the reply brief shall not exceed fifteen double-spaced typewritten pages,” we construe “the argument portion” to include any text in the reply brief, even if the party filing the brief titles the text something other than “argument,” See Rule 12-213(A)(2)-(4), (B), and (C) (indicating that the rule contemplates that reply briefs shall not contain any summary of proceedings or summary of facts and shall consist only of tables and arguments).
{37} In addition, Campbell’s reply brief was printed in ten-point typeface, which is a smaller typeface than permitted by Rule 12-305(B) NMRA 2002. We understand there may be confusion due to the difference between “type style” and “typeface” and the “pitch” and “point” referenced in the rule. We now clarify that “pitch” and “type style” refer to text created by a typewriter, and “point” and “typeface” refer to text created by a computer or other printing mode.
CONCLUSION
{38} We affirm the trial court’s order of summary judgment.
{39} IT IS SO ORDERED.