New Mexico courts have acknowledged "that reasonable restrictive covenants in an employment agreement are acceptable even if the covenants restrain trade or competition to some degree." Campbell v. Millennium Ventures, LLC, 132 N.M. 733, 738, 55 P.3d 429, 434 (Ct.App. 2002). The New Mexico Court of Appeals in Campbell v. Millennium Ventures, LLC upheld a non-compete clause which stated:
Interpretation of an unambiguous contract, on the other hand, is a question of law. See Campbell v. Millennium Ventures, LLC, 2002–NMCA–101, ¶ 15, 132 N.M. 733, 55 P.3d 429 (“ ‘Interpretation of an unambiguous contract is a question of law which we review de novo.’ ”)(quoting Nearburg v. Yates Petroleum Corp., 1997–NMCA–069, ¶ 7, 123 N.M. 526, 943 P.2d 560). New Mexico courts “consider the documents as a whole to determine how they should be interpreted,” and “can consider the circumstances surrounding the creation of the contract as well as the contract itself.”
Management Recruiters, 762 P.2d at 765. New Mexico law, in contrast to Colorado, is generally receptive to non-compete and non-solicitation agreements and only requires that the agreements serve a legitimate purpose and that the restrictions be reasonable. Lovelace Clinic v. Murphy, 417 P.2d 450, 453 (N.M. 1966); Campbell v. Millennium Ventures, LLC, 55 P.3d 429, 434 (N.M. Ct. App. 2002). Colorado and New Mexico's differing approaches to non-compete agreements are quite similar to the approaches analyzed by the 10th Circuit in King, 485 F.3d 577.
"We consider the documents as a whole to determine how they should be interpreted." Campbell v. Millennium Ventures, LLC , 2002-NMCA-101, ¶ 15, 132 N.M. 733, 55 P.3d 429. {6} "[U]nconscionability is an affirmative defense to contract enforcement, and under settled principles of New Mexico law, the party asserting an affirmative defense has the burden of proof."
{13} The "threshold issue of whether there was an existing agreement requiring arbitration is a matter for the court, not the arbitrator." Gonzales v. United Sw. Nat'l Bank of Santa Fe, 93 N.M. 522, 523, 602 P.2d 619, 620 (1979); see also Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, ¶ 13, 132 N.M. 733, 55 P.3d 429. It is a question of law that is subject to de novo appellate review.
But because the agreement postdates the merger, this theory falls flat. And even if the agreement predated the merger, WeConnect has not shown that it survived, and the agreement does not expressly bind successors or assigns. Cf. Campbell v. Millennium Ventures, LLC, 55 P.3d 429, 433 (N.M. Ct. App. 2002) ("[Some] jurisdictions have held that an employee consents to assignment of an employment agreement if the agreement expressly binds and benefits successors or assigns."). WeConnect also argues that it "drafted the Agreement and presented it to Goplin for signature."
The interpretation of a contract's provisions and the accompanying obligations thereunder are questions of law to be decided by the court. See Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, ¶ 15, 132 N.M. 733, 736; Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, ¶ 7, 123 N.M. 526, 532. New Mexico courts "consider the documents as a whole to determine how they should be interpreted," and "can consider the circumstances surrounding the creation of the contract as well as the contract itself." Campbell, 2002-NMCA-101, ¶ 15.
The threshold issue of whether there was an existing agreement requiring arbitration is for the Court to determine. Gonzales v. United Southwest Nat'l Bank, 93 N.M. 522, 523 (1979); Bernalillo County Med. Ctr. Employees' Ass'n v. Cancelosi, 92 N.M. 307, 308 (1978) ("[w]here provision for arbitration is disputed, the court's function is to determine whether there is an agreement to arbitrate"), cited in Campbell v. Millenium Ventures, LLC., 132 N.M. 733, 736 (Ct.App. 2002). The terms of the agreement "define the scope of the jurisdiction, conditions, limitations and restrictions on the matters to be arbitrated."
Arbitration cannot be required of parties unless they have first agreed to arbitrate. Santa Fe Technologies v. Argus Networks, Inc. et al., 131 N.M. 772, 788 (Ct.App. 2002) (court's inquiry is whether the parties have agreed to arbitrate the matter under dispute) (citing to § 44-7-1 NMSA); Campbell v. Millenium Ventures, LLC., 132 N.M. 733, 736 (Ct.App. 2002) ("where provision for arbitration is disputed, the court's function is to determine whether there is an agreement to arbitrate"). Plaintiffs' position rests on the theory that the two relevant documents merged into the Installment Loan Contract, which did not have a provision, and thus the parties did not agree to arbitrate.
Dist. Ct. App. 2003); Hess, 808 A.2d at 923.But cf. Campbell v. Millennium Ventures, LLC, 55 P.3d 429, 435-36 (N.M. Ct. App. 2002) (asset sale agreement did not specifically assign covenant, but was included in sale of business' goodwill). We do not reach the issue of whether Burkhardt misappropriated trade secrets or confidential information gained in connection with his employment at NES and United.