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Petitioner and Jasiak agreed to a written change in the agreement
barring prepayment and providing a security interest; this shows
that they understood that changes in the agreement must be in
writing.
Petitioners ask us to consider parol evidence of Jasiak's
and petitioner's intent regarding payment for Jasiak's promise
not to compete. Petitioners' reliance on parol evidence is
unhelpful to petitioners for two reasons. First, the evidence is
not credible. Petitioner testified that he intended for Jasiak's
oral promise to be part of the written agreement and that he
would not have agreed to Cost Less buying Jasiak's stock without
Jasiak's covenant not to compete. Petitioners contend that
Jasiak's testimony shows that petitioner intended that part of
the $175,000 payment from Cost Less to Jasiak was for his oral
promise not to compete. Jasiak testified that none of the
$175,000 was for the covenant not to compete. Jasiak's testimony
is consistent (and petitioner's position is inconsistent) with
the written agreement and with Jasiak's and petitioner's decision
to delete any references to a covenant not to compete from their
written agreement. We found Jasiak's testimony to be more
credible than petitioner's.
The second reason petitioners' reliance on parol evidence is
unhelpful to them is that under Arizona's parol evidence rule, we
do not consider parol evidence where the written agreement is
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Last modified: May 25, 2011