                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1396


SHARON WILLIAMS,

                Plaintiff – Appellant,

           v.

CDP, INCORPORATED; CELLAR DOOR MANAGEMENT, INCORPORATED;
JJJ MANAGEMENT, INCORPORATED; CELLAR DOOR AMPHITHEATER,
INCORPORATED; SFX ENTERTAINMENT, INCORPORATED, A Wholly
Owned   Subsidiary    of   Clear   Channel    Communications,
Incorporated, Successor in Interest to CDP, Incorporated
and Cellar Door Amphitheater, Incorporated; CLEAR CHANNEL
COMMUNICATIONS, INCORPORATED, Successor in Interest to SFX
Entertainment,     Incorporated    d/b/a     Clear    Channel
Entertainment;   LIVE    NATION   WORLDWIDE,    INCORPORATED,
Successor in Interest to CDP, Incorporated; JOHN J. BOYLE,

                Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Raymond A. Jackson,
District Judge. (4:09-cv-00084-RAJ-TEM)


Argued:   December 8, 2011                 Decided:   March 22, 2012


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Vacated and remanded by unpublished opinion.    Judge Diaz wrote
the opinion, in which Chief Judge Traxler and Judge Agee joined.


ARGUED: Harris D. Butler, BUTLER ROYALS, PLC, Richmond,
Virginia, for Appellant. Susan Childers North, LECLAIRRYAN, PC,
Williamsburg, Virginia; Scott William Kezman, KAUFMAN & CANOLES,
PC, Norfolk, Virginia, for Appellees.       ON BRIEF: Charles L.
Williams, BUTLER WILLIAMS & SKILLING, PC, Richmond, Virginia,
for Appellant.    Brian G. Muse, LECLAIRRYAN, PC, Williamsburg,
Virginia,   for   Appellees   CDP,   Incorporated,   Cellar   Door
Amphitheater, Incorporated, SFX Entertainment, Incorporated,
Clear Channel Communications, Incorporated, and Live Nation
Worldwide, Incorporated; Marc E. Darnell, KAUFMAN & CANOLES, PC,
Norfolk,   Virginia,   for  Appellees   Cellar  Door   Management,
Incorporated, JJJ Management, Incorporated, and John J. Boyle.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       David Williams and his employer CDP, Inc. entered into a

Deferred     Compensation       Agreement          that   provided         in   part    for   a

$100,000 annual benefit payable to his spouse, Sharon Williams,

after his death.          David Williams died while still employed by

CDP.     Following        her   husband’s          death,      Sharon      Williams     began

receiving monthly payments totaling $100,000 per year from David

Williams’s      former     employer.           Nearly         nine   years       later,     the

payments       stopped.         Sharon        Williams        sued     CDP      and    several

affiliated      companies,          seeking       to   enforce       the     spousal      death

benefit provision.

       CDP   and   the    other      defendants        moved     for    judgment       on   the

pleadings, contending that the Deferred Compensation Agreement

unambiguously required David Williams to retire as a condition

precedent to payment of the benefit.                      The district court agreed

and granted the defendants’ motion.                       Because the provision at

issue is susceptible to more than one meaning, we hold that the

agreement is ambiguous and therefore vacate the judgment of the

district court.



                                              I.

       David    Williams,       a    music     and     theater       promoter,        and   his

employer       CDP,   Inc.      entered        into       a    Deferred         Compensation

Agreement dated December 1, 1994.                      That same day, the parties

                                              3
also   signed      a     separate    Employment      Agreement.        The    Deferred

Compensation        Agreement       states    that   the    Employment       Agreement

governs      the       employment     relationship         between    the     parties,

references         the     restrictive       covenants       contained       in   that

agreement, and adopts its defined terms where applicable.                          The

term of the Deferred Compensation Agreement began on the date of

the agreement and continued through David Williams’s death.                        The

term of the Employment Agreement also began on the date of the

agreement but, unlike the Deferred Compensation Agreement, ended

upon    David       Williams’s       termination.           Both     contracts    were

guaranteed      by       Cellar     Door     Management,      Inc.;    Cellar     Door

Amphitheater, Inc.; and John J. Boyle or any entity in which he

owned an interest.

       The   Deferred      Compensation       Agreement     contains     a   paragraph

that defines both the deferred compensation payable to David

Williams as well as the death benefit payable to his spouse.

The paragraph first states that, commencing upon his retirement

and termination, David Williams is entitled to annual payments

equal to the greater of $100,000 or the sum of thirty-three

percent of available cash and amounts paid out from business

operations.         The next sentence of the paragraph describes the

spousal death benefit and provides for a $100,000 annual payment

to Sharon Williams if she and her husband are still married when

he dies.

                                             4
     David       Williams    died      on    January       27,     1999     while     still

employed    by    CDP.      Following       his     death,   CDP      and   Cellar    Door

Management       began   making     monthly       payments       to    Sharon    Williams

totaling $100,000 per year.             In June 2008, the payments stopped.

Thereafter,       Sharon    Williams        filed    suit     in      Virginia      Circuit

Court, alleging (1) breach of contract against CDP; Cellar Door

Management; JJJ Management, Inc.; SFX Entertainment, Inc.; Clear

Channel Communications, Inc.; Live Nation Worldwide, Inc.; and

Boyle; (2) breach of guaranty against Cellar Door Management,

Cellar Door Amphitheater, SFX, Clear Channel, and Live Nation;

(3) a third-party beneficiary claim against Boyle; and (4) a

third-party beneficiary claim against all defendants.                            Each of

the claims stemmed from the alleged breach of the spousal death

benefit provision in the Deferred Compensation Agreement.

     The defendants removed the case to federal district court,

asserting diversity among the real parties in interest.                              As of

the date of the lawsuit, Cellar Door Management had changed its

name to JJJ Management.                Similarly, through dissolutions and

corporate successions, CDP, SFX Entertainment, and Clear Channel

had all been combined into Live Nation.                    Following removal, Live

Nation filed an answer on behalf of CDP, SFX, and Clear Channel

(collectively “Live Nation”), while Boyle and JJJ Management—as

successor    in     interest      to   Cellar       Door     Management—each         filed

responses to the complaint.

                                             5
     Live Nation moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c).                    JJJ Management later

moved to adopt Live Nation’s motion.                The district court granted

the defendants’ motion, holding as a matter of law that the

Deferred     Compensation         Agreement    unambiguously       requires        that

David Williams be retired as a condition precedent to payment of

the spousal death benefit.               Because David Williams was still

employed when he died, the district court concluded that Sharon

Williams failed to state a claim upon which relief could be

granted     and     ordered     the    case    dismissed.         Sharon    Williams

appealed.



                                         II.

     We review a district court’s dismissal under Rule 12(c) de

novo, applying the same standard we would to a Rule 12(b)(6)

motion to dismiss for failure to state a claim.                     Volvo Constr.

Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 591 (4th

Cir. 2004) (citing Burbach Broadcasting Co. of Del. v. Elkins

Radio     Corp.,      278      F.3d    401,     405–06     (4th     Cir.        2002)).

Accordingly, we assume all facts alleged are true and draw all

reasonable        inferences      in   favor   of   the     plaintiff,      id.,    to

determine     whether       the    complaint     alleges      a    set     of    facts

sufficient to state a claim that is “plausible on its face,”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

                                          6
     The issue of whether a contract is ambiguous presents a

question of law that we review de novo.                     Moore Bros. Co. v.

Brown & Root, Inc., 207 F.3d 717, 726 (4th Cir. 2000); Video

Zone, Inc. v. KF & F Props., L.C., 594 S.E.2d 921, 923 (Va.

2004).    In a contract dispute, judgment on the pleadings may be

appropriate “ ‘where an agreement is complete on its face and is

plain and unambiguous in its terms.’ ”                 Pac. Ins. Co. v. Am.

Nat’l Fire Ins. Co., 148 F.3d 396, 405 (4th Cir. 1998) (quoting

Lerner v. Gudelsky Co., 334 S.E.2d 579, 584 (Va. 1985)).                            If a

particular term is ambiguous, however, the meaning of that term

presents an issue of fact that precludes dismissal on a motion

for judgment on the pleadings.               Martin Marietta Corp. v. Int’l

Telecomms. Satellite Org., 991 F.2d 94, 97 (4th Cir. 1992).

     Under   Virginia       law, 1   “[t]he    language     of      a    contract     is

ambiguous if ‘it may be understood in more than one way or when

it refers to two or more things at the same time.’ ”                                Video

Zone, 594 S.E.2d at 923 (quoting Eure v. Norfolk Shipbuilding &

Drydock   Corp.,      561    S.E.2d    663,     668    (Va.      2002)).        “[A]n

ambiguity,     if   it   exists,      must    appear   on     the       face   of    the

instrument.”        Id.; see also Westmoreland-LG&E Partners v. Va.

Elec. & Power Co., 486 S.E.2d 289, 294 (Va. 1997) (explaining


     1
       Both agreements specify that Virginia law governs issues
of interpretation.



                                         7
that courts will resort to extrinsic evidence of intent only if

the   terms   are    ambiguous).       “In    determining      whether   disputed

contractual terms are ambiguous, we consider the words employed

by the parties in accordance with their usual, ordinary, and

popular meaning.”        Pocahontas Mining LLC v. CNX Gas Co., 666

S.E.2d 527, 531 (Va. 2008).              Courts treat the omission of a

particular term from a contract as evidence that the parties

intended to exclude that term.          Id.

      In   determining       whether   ambiguity     exists,    “ ‘[a]   contract

must be construed as a whole to determine the parties’ intent

with respect to specific provisions.’ ”              Va. Elec., 486 S.E.2d at

294   (quoting      Hooper    v.   Musolino,   364    S.E.2d    207,     212   (Va.

1988)).    When parties enter into multiple agreements related to

the same subject matter on the same day, courts will construe

the documents together to ascertain the meaning.                    Countryside

Orthopaedics, P.C. v. Peyton, 541 S.E.2d 279, 284 (Va. 2001).



                                       III.

      In this case, the disputed provision appears in paragraph 3

of the Deferred Compensation Agreement and states as follows:

      3.   Deferred   Compensation;   Death   Benefit;   and
      Payments for Restrictive Covenants.    Commencing upon
      the Employee’s retirement from the Employer and the
      termination of his employment under the Employment
      Agreement and continuing for the remaining Term of
      this Agreement, the Employee shall be paid an amount
      per annum equal to the greater of (i) $100,000 or (ii)

                                        8
    the sum of (a) 33 percent of Available Cash 2 and (b)
    the CDA Amount. 3 If, at the time of Employee’s death,
    Employee is survived by, and is still married to, his
    current spouse (i.e., his spouse as of the date this
    Agreement is executed), then the Employer shall either
    (i) pay to such spouse $100,000 per annum for her life
    or (ii) purchase a commercial annuity that will pay
    her $100,000 per annum for her life.

J.A. 31 (emphasis added).        The dispute in this case turns on

whether the opening clause of the first sentence in paragraph 3

also modifies the second sentence, thus requiring that David

Williams be retired as a condition precedent to the obligation

to pay the spousal death benefit.

     Although   the   district   court’s   view   of   the   paragraph   is

certainly reasonable, we conclude that there is another equally

reasonable interpretation of the words employed by the parties.

As an initial matter, the agreement employs a full stop after

describing deferred compensation in the first sentence before


    2
       The Employment Agreement defines “Available Cash” as “the
excess of cash receipts of the Company . . . during such
calendar year over the sum of (i) all costs and expenses
incident to the operation and management of the Company . . .
and (ii) amounts actually allocated during such year in the
discretion of the Board of Directors of the Company as reserves
to pay taxes, insurance, debt service and/or other costs,
expenses and liabilities of the Company.”        J.A. 22.    The
Deferred Compensation Agreement expressly adopts the definitions
contained in the Employment Agreement.
    3
       For purposes of the agreements, “CDA Amount” means “an
amount equal to the amount of any distribution made to John J.
Boyle or any member of his immediate family from the operation
of Cellar Door Amphitheater, Inc.” J.A. 23.



                                   9
turning to the spousal death benefit in the second sentence.                                      As

a   result,        the     language        stating     “[c]ommencing         upon     Employee’s

retirement” appears in a sentence separate from the description

of the spousal death benefit.                          Moreover, the second sentence

does       not    repeat       or    refer   to   the       condition       contained      in   the

opening          clause    of       the   first   sentence.           See    Pocahontas,        666

S.E.2d       at    531    (“[T]he         omission     of    a    particular     term      from    a

contract is evidence that the parties intended to exclude that

term.”).          In fact, the only condition contained in the sentence

describing the spousal death benefit is that David Williams must

be “survived by, and . . . still married to, his current spouse

(i.e., his spouse as of the date this Agreement is executed)” at

the time of his death.                    J.A. 31.      Given this structure and the

omission          of      the       retirement       condition        from     the        sentence

describing the spousal death benefit, the issue of whether the

requirement            that     David      Williams     retire       modifies       the    entire

paragraph          is     at        the   very    least          susceptible     to     multiple

interpretations. 4


       4
       While not controlling, we also note that the title of
paragraph 3 indicates that the paragraph relates to three
distinct benefits. The title lists three items, each separated
by a semicolon:    “Deferred Compensation; Death Benefit; and
Payments for Restrictive Covenants.”  J.A. 31.  Based on this
structure, it does not follow that a condition imposed with
respect to one of these benefits necessarily applies to all
three.



                                                  10
       Live Nation offers two primary arguments in support of the

district court’s conclusion that David Williams’s retirement was

an unambiguous condition precedent to payment of the spousal

death benefit.       First, Live Nation contends that the meaning of

the disputed language in the Deferred Compensation Agreement is

clear when read in conjunction with the death benefit described

in the separate but related Employment Agreement.                    Second, Live

Nation    suggests    that,    when    read      as   a   whole,    the     Deferred

Compensation    Agreement      compels    the    conclusion       that    retirement

was a condition precedent because the contract states elsewhere

that     postretirement       advisory        services     were    part     of   the

consideration.      We are not persuaded.

       According to Live Nation, when the Deferred Compensation

Agreement and the Employment Agreement are read together, it is

clear that David Williams’s retirement was a condition precedent

to   payment   of    the   spousal    death     benefit.      In   support,      Live

Nation points to the following language from paragraph 5.3 of

the Employment Agreement:

       Death. In the event of the death of the Executive
       during the term of his employment hereunder, the
       Company shall (i) pay to the estate of the deceased
       Executive   any  unpaid   Base   Salary  through   the
       Executive’s date of death, (ii) pay to the estate of
       the deceased Executive the Bonus, if any, not yet paid
       to the Executive for any year prior to the date of
       death, at such time as the Bonus would otherwise have
       been payable to the Executive, and (iii) pay to the
       estate of the deceased Executive a portion of the
       Bonus, if any, for the year in which such death

                                         11
      occurs, at such time as the Bonus would otherwise have
      been payable to the Executive, equal to the product of
      (x) the quotient obtained by dividing (A) the number
      of months in the year that the Executive was employed
      by the Company prior to his death (including the month
      in which the death occurs if the death occurred on or
      after the fifteenth of such month), by (B) 12, times
      (y) the Bonus for the year in which the death occurs
      . . . .   The Company shall have no further liability
      hereunder (other than for reimbursement for reasonable
      business expenses incurred prior to the date of the
      Executive’s death. . . .).

Id.   24     (emphasis   added).          Live    Nation      contends    that     this

separate death benefit cannot be reconciled with the spousal

death benefit in the Deferred Compensation Agreement if both

were payable regardless of whether David Williams retired prior

to his death.

      According to Live Nation, the only plausible construction

is    that    the    Employment     Agreement      governed      the    relationship

between      David    Williams      and    CDP    during       the     term   of    his

employment, while the Deferred Compensation Agreement controlled

following his retirement or termination.                   As such, Live Nation

urges that paragraph 5.3 of the Employment Agreement establishes

the exclusive benefits payable should David Williams die during

the course of his employment, while paragraph 3 of the Deferred

Compensation Agreement establishes the benefits payable if he

dies following his retirement.                 Live Nation contends that this

interpretation       avoids   the    creation      of   two    inconsistent        death




                                          12
benefit      obligations     should     David       Williams        die    while       still

employed by CDP.

       Although     Live    Nation     is    correct       that     we    construe        the

meaning of the two agreements together, see Countryside, 541

S.E.2d at 284, its argument ignores the term specified in the

Deferred Compensation Agreement and mischaracterizes the benefit

provided       in   each    agreement.             Contrary       to     Live    Nation’s

assertion, the term of the Deferred Compensation Agreement did

not   begin     following    David     Williams’s          retirement      but       instead

began as of the date of the agreement.                  Thus it does not follow,

as    Live     Nation      suggests,        that     the     Employment         Agreement

exclusively controlled during David Williams’s employment, while

the     Deferred     Compensation       Agreement           governed       during         his

retirement.

       Instead,     the    agreements       describe       two    distinct       benefits

payable to two different beneficiaries.                      The death benefit in

the     Deferred    Compensation       Agreement           was    payable       to    David

Williams’s “current spouse” and provided an annual payment for

her support following his death.                   The death provisions of the

Employment Agreement, on the other hand, describe payments to

David    Williams’s       “estate,”    to     include       reimbursement        for      his

unpaid salary, prior year’s bonus, and the portion of the bonus

earned during the year of his death.                 This latter benefit serves

a    purpose    different    than     the     spousal       death      benefit       in   the

                                            13
Deferred Compensation Agreement and thus is not an inconsistent

obligation, as Live Nation contends.

         Live Nation also seeks support for its view from paragraph

4   of    the    Deferred    Compensation     Agreement,    which    provides    in

relevant part as follows:

         In consideration of the payments to be made hereunder
         during the Term of this Agreement, Employee agrees to
         perform such advisory and consultative services as may
         be reasonably requested by Employer, in order that the
         Employer may continue to benefit from the Employee’s
         experience, knowledge, reputation and contacts in the
         industry.

J.A. 31–32.         Live Nation contends that because David Williams

could not perform these advisory services while still employed,

the      Deferred   Compensation     Agreement    necessarily       applies   only

during      David    Williams’s     retirement.         Because     paragraph    4

characterizes        the     advisory    services      as   consideration       for

payments made under the agreement, Live Nation reasons that to

interpret the agreement otherwise would mean that it fails for

lack of consideration.

         Live Nation’s argument again ignores the language of the

Deferred        Compensation   Agreement,     which    specifies    that   “[t]he

term of this Agreement shall begin on the date of this Agreement

and shall terminate upon the death of the Employee.”                       Id. 31

(emphasis added).           Live Nation was not obligated to pay spousal

death benefits until after David Williams’s death, meaning that

all      such   payments    were   due   after   the   term   of    the   Deferred

                                         14
Compensation Agreement.            Given that the “payments” that were to

serve    as   “consideration”          under   paragraph   4   of     the    Deferred

Compensation Agreement were to be made “during the term of this

Agreement,” id. (emphasis added), plainly such payments could

not include the spousal death benefit. 5

     Furthermore, the provision of advisory services was not the

sole consideration specified in the agreement.                        For example,

both agreements summarize David Williams’s past service and the

desire that he continue his “attention and dedication to the

Company”      as    part    of   the   consideration.      Id.      21,     31.   The

agreements also refer to the mutual covenants contained therein,

including          the     noncompetition       provisions,      as        additional

consideration for the payments.                Accordingly, we hold that the

Deferred      Compensation        Agreement     was   supported       by     adequate

consideration and reject Live Nation’s argument that failure to

provide the advisory services renders the agreement, including

the promise to pay the spousal death benefit, gratuitous.




     5
        Our interpretation does not render the phrase “[i]n
consideration of the payments to be made . . . during the term
of this agreement” obsolete.         The Deferred Compensation
Agreement provides that David Williams was to receive deferred
compensation payments following his retirement.    These payments
were due “during the term of the agreement,” which expired upon
his death.   Accordingly, a reasonable view of the language of
paragraph 4 is that the parties contemplated that the advisory
services would serve as consideration for those payments.



                                          15
       In sum, after considering the words and phrases employed in

paragraph 3 of the Deferred Compensation Agreement, we find that

the spousal death benefit provision is susceptible to multiple

meanings.    Furthermore, after reviewing the agreement as a whole

and construing it together with the Employment Agreement, we

find    nothing   that    clarifies        the     ambiguity    or    renders   the

provision   subject      to   only   one    plausible       interpretation.      We

therefore   hold,   contrary     to   the        district   court’s    conclusion,

that the meaning of the spousal death benefit in the Deferred

Compensation Agreement is ambiguous.



                                       IV.

       For the foregoing reasons, we vacate the district court’s

judgment and remand for further proceedings consistent with this

opinion.

                                                            VACATED AND REMANDED




                                       16
