AARON, J. —
Pacific Corporate Group Holdings, LLC (PCGH), brought this action against its former employee, Thomas Keck, seeking to collect on a promissory note. Keck defended against the action by claiming that any money that he owed PCGH was offset by monies that PCGH owed him. Keck also filed a cross-complaint against PCGH seeking damages for unpaid bonus and severance payments that he claimed were due him pursuant to two employment agreements. In a special verdict, the jury found that PCGH owed Keck $270,547.95 under the terms of a 2006 employment agreement (2006 Agreement). PCGH filed a motion for judgment notwithstanding the verdict (JNOV) or for new trial on the ground that there was no substantial evidence to support the jury's finding that the parties entered into the 2006 Agreement. The trial court denied PCGH's motion. Keck filed a motion for additur, or in the alternative, for a new trial on damages, on the ground that the jury had awarded inadequate damages in light of the bonus and severance provisions in the 2006 Agreement. The trial court granted Keck's motion, and issued an additur and conditional order granting a new trial on damages. PCGH refused to consent to the additur, and thus, the trial court's order directing a new trial on damages became effective. Both parties subsequently filed motions for attorney fees, which the court denied.
PCGH filed two appeals seeking reversal of the judgment; the trial court's order denying its motion for new trial and JNOV; the trial court's order granting Keck's motion for additur, or, in the alternative, a new trial on damages; and the trial court's order denying its motion for attorney fees. Keck filed an appeal from the trial court's order denying his motion for attorney fees.
The trial court's order granting a new trial on damages resulted in a vacatur of the underlying judgment. Accordingly, we conclude that we lack appellate jurisdiction to consider PCGH's appeals from the judgment, the trial court's order denying its motion for new trial, and the trial court's order
PCGH is an investment advisory firm. In 2005, PCGH hired Keck pursuant to a July 8, 2005 letter agreement (2005 Agreement). The 2005 Agreement stated in relevant part: "On or prior to June 30, 2006 you shall receive a $100,000 incentive compensation payment as an advance on the 2006 Bonus and such payment shall be deducted from the final 2006 Bonus amount determined by [PCGH] for the fiscal year ending December 31, 2006."
Keck never received any bonus pursuant to this provision of the 2005 Agreement.
Keck signed a promissory note in favor of PCGH in exchange for a $200,000 loan in March 2006.
In the fall of 2006, Keck engaged in negotiations with PCGH, including with its chairman and chief executive officer, Christopher Bower, concerning both a new employment agreement and a new equity sharing agreement.
Keck signed the offer, and, on December 1, sent Bower an e-mail informing him that he had signed the 2006 Agreement. Bower responded by sending Keck an e-mail that stated, "Great."
On November 30, 2006, PCGH paid Keck a signing bonus of $50,684.93, as required by the terms of the 2006 Agreement. Samantha Sacks, PCGH's former senior vice-president of accounting and finances, authorized the payment because PCGH's management gave her the 2006 Agreement and instructed her to pay the bonus. It was Sacks's understanding that the 2006
PCGH terminated Keck on December 12, 2006, after learning that Keck had called CalPERS in order to caution CalPERS to carefully read the terms of the new equity sharing agreement at PCGH.
At trial, Keck acknowledged that he had paid nothing out of pocket to repay the March 2006 promissory note. However, Keck contended that any money that he owed PCGH on the note was offset by amounts that PCGH owed him under the 2005 Agreement and the 2006 Agreement.
The parties agreed to a special verdict form that began by stating, "The parties agree that [PCGH] loaned $200,000 to [Keck], he signed a Promissory Note dated March 21, 2006, and he has not made any payment." The jury found that PCGH owed Keck "$100,000 for a bonus payment due on or about June 30, 2005,[
The trial court entered a judgment that recited the jury's special verdict and stated, "Accordingly, it appearing by reason of said special verdict and pursuant to Code of Civil Procedure, section 431.70,[
Keck filed a motion for additur, or in the alternative, for a new trial limited to the issue of his damages. Keck also filed a motion for attorney fees.
PCGH filed a motion for new trial, or in the alternative, for JNOV. PCGH also filed a motion for attorney fees.
The trial court denied PCGH's motion for new trial or JNOV, granted Keck's motion for additur or new trial on damages,
PCGH filed a notice of appeal that stated that PCGH was appealing the judgment; the trial court's order denying PCGH's motion for new trial or in the alternative, JNOV; and the trial court's order granting Keck's motion for additur, or in the alternative, a new trial on damages. PCGH filed a separate notice of appeal of the trial court's order denying its motion for attorney fees.
Keck filed an appeal from the trial court's order denying his motion for attorney fees.
We first consider, sua sponte, whether we have appellate jurisdiction over all of the claims raised in PCGH's appeals and Keck's appeal.
We reject PCGH's contention that we may review the denial of its motion for new trial pursuant to authority that, "One who moves for a new trial on all issues and obtains a new trial only on limited issues is an aggrieved party who has a right of appeal from the new trial order." (Ferraro v. Pacific Fin. Corp. (1970) 8 Cal.App.3d 339, 355 [87 Cal.Rptr. 226] (Ferraro).) Ferraro, and the case law cited in Ferraro in support of this proposition, is premised on the fact that any aggrieved party may appeal from an order granting a new trial, even the party that moved for the new trial and had its motion granted in part. (See, e.g., Spencer v. Nelson (1947) 30 Cal.2d 162 [180 P.2d 886] (Spencer).) However, there is no authority that stands for the proposition that
In this case, the issue raised in PCGH's appeal from the denial of its motion for new trial, namely, whether the parties entered into the 2006 Agreement, will not arise in the retrial on damages. However, PCGH may raise its claim that the trial court erred in denying its motion for new trial on this ground in a later appeal from a final judgment entered after the new trial on damages.
We also lack jurisdiction to consider PCGH's claim that the trial court erred in entering a judgment solely in Keck's favor, since, as explained above, that judgment was vacated by the trial court's order granting Keck's
PCGH correctly notes that the Beavers court stated that there was "one exception to the rule that a partial new trial order vacates and holds in abeyance the entire judgment." (Beavers, supra, 225 Cal.App.3d at p. 330.) The Beavers court discussed this exception as follows: "The exception occurs when the judgment retains sufficient vitality to support appellate review if the matter is otherwise properly brought before the appellate court. A new trial order, including an order for a partial new trial, is an appealable order. ([Former] § 904.1, subd. (d).) Where an aggrieved party appeals from a new trial order, then the entire judgment is subject to appellate review at that time. (Spencer[, supra, 30 Cal.2d at p. 164].) `One effect of an order granting a new trial is, of course, to vacate the judgment; however, when an appeal is taken from such an order the vacating effect is suspended, and the judgment remains effective for the purpose of an appeal from the judgment.' (Id. at p. 164.) That is also the situation here. [¶] The trial court granted partial judgment notwithstanding the verdict and granted a new trial as an alternative to the partial judgment notwithstanding the verdict and as to all other issues. Since plaintiffs have properly appealed from the new trial order, the judgment, including the portion affected by the judgment notwithstanding the verdict, is subject to review in this appeal." (Ibid.)
The exception referred to in Spencer is to a protective cross-appeal (see Spencer, supra, 30 Cal.2d at p. 164), which permits review of a judgment in the event that an order granting a new trial is reversed. (See Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 910 [215 Cal.Rptr. 679, 701 P.2d 826].) That exception has no application in this case, because, for reasons we explain in part III.C., post, we affirm the trial court's order granting a new trial on damages, and thus, upon the finality of our opinion, the underlying judgment is "absolutely vacated." (Sherwin v. Southern Pacific Co. (1914) 168 Cal. 722, 724 [145 P. 92] ["An order granting a new trial does not absolutely vacate the judgment; it is absolutely vacated only when such an order becomes a finality"].)
It appears that the Beavers court may have applied the Spencer cross-appeal exception to suggest that a court may review those portions of a judgment that affect a new trial order. In Beavers, the "trial court granted partial judgment notwithstanding the verdict [in favor of defendants] and granted a new trial as an alternative to the partial judgment notwithstanding
We also reject Keck's argument that he may appeal from the trial court's order denying his motion for attorney fees as a protective cross-appeal from the judgment. Keck's appeal from the attorney fee order is not a cross-appeal from the judgment. (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 295 [252 Cal.Rptr. 369] ["The cross-appeal procedure ... cannot have been intended to give parties the means of securing review, by cross-appeal, of matters not related to the order or judgment which is the subject of the original appeal." (citation omitted)].) Further, even assuming that Keck's appeal from the attorney fee order could be deemed a protective cross-appeal, since we affirm the trial court's order granting a new trial on damages (see pt. III.C., post), we have no basis for reaching the merits of Keck's appeal.
We do have appellate jurisdiction to consider PCGH's claim that the trial court erred in denying its motion for JNOV. (See § 904.1, subd. (a)(4) [making appealable "an order ... denying a motion for judgment notwithstanding the verdict"]; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71 Cal.Rptr.3d 469] ["An appeal may be taken from an order denying a motion for JNOV even where the trial court has granted ... a new trial motion."].) We also have jurisdiction to consider PCGH's claim that the trial court erred in granting Keck's motion for additur, or in the alternative, a new trial on damages. (See § 904.1, subd. (a)(4) [making appealable "an order granting a new trial"]; Hasso v. Hapke (2014) 227 Cal.App.4th 107, 120, fn. 3 [173 Cal.Rptr.3d 356] ["... `If a new trial is ordered as to some issues but not as to others (for example, to retry the issue of damages but not of liability), the order granting the new trial is appealable by any party aggrieved by the order....'"].)
Finally, we reject both parties' requests that we exercise our discretion to consider any nonreviewable appellate issues as having been brought by way of a writ petition in order to avoid further delay and expense associated with a potential subsequent appeal or appeals. The fact that PCGH has the right to bring an interlocutory appeal of the trial court's orders denying its motion for
Accordingly, we dismiss PCGH's appeals from the judgment, the trial court's order denying its motion for new trial, and the trial court's order denying attorney fees. We also dismiss Keck's appeal from the trial court's order denying attorney fees. We consider below PCGH's claims that the trial court erred in denying PCGH's motion for JNOV and in granting Keck's motion for additur, or in the alternative, a new trial on damages.
PCGH contends that the trial court erred in denying its motion for JNOV.
After the trial court entered judgment on the jury's special verdict, PCGH filed a motion for JNOV. In its motion, PCGH contended that there was no substantial evidence to support the jury's finding that PCGH and Keck entered into the 2006 Agreement.
PCGH noted that the trial court instructed the jury in relevant part as follows: "When it is clear from a provision of a proposed written contract that the contract would become binding only when signed and returned[,] as
PCGH argued that the November 30, 2006 offer letter expressly required that Keck sign and return the offer letter, and that both Keck and Bower testified that they understood that an exchange of signatures was required to establish a binding agreement. PCGH further contended that the undisputed evidence established that Keck never "signed and returned" (italics added) the November 30, 2006 offer letter. PCGH maintained that there was therefore no substantial evidence to support the jury's finding that PCGH and Keck entered into the 2006 Agreement.
In his opposition, Keck noted that the jury was also instructed as follows:
Keck also noted that he presented both testimonial and documentary evidence demonstrating the following: (1) the parties exchanged e-mails confirming that they had each signed the 2006 Agreement; (2) PCGH notified a key client that the parties had entered into the 2006 Agreement; (3) PCGH management informed a PCGH payroll employee that the 2006 Agreement was final; and (4) PCGH paid Keck a $50,684.93 signing bonus mandated by the 2006 Agreement.
Keck contended that the evidence presented at trial supported the jury's finding that the parties entered the 2006 Agreement "despite [PCGH] reversing position a few days after these events and firing Keck before he could actually hand over his signature page to the employment agreement."
After a hearing, the trial court denied PCGH's motion.
Ordinarily, when reviewing a ruling on a motion for JNOV, "an appellate court will use the same standard the trial court uses in ruling on the motion, by determining whether it appears from the record, viewed most favorably to the party securing the verdict, that any substantial evidence supports the verdict. `"`If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied.'"'" (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284 [73 Cal.Rptr.2d 596].)
In Devencenzi v. Donkonics (1959) 170 Cal.App.2d 513, 518 [339 P.2d 232] (Devencenzi), an appeal from a trial court's sustaining of the defendant's demurrer, the Court of Appeal considered whether the plaintiffs had adequately alleged that they had accepted the defendants' contractual offer. The
In Estate of Crossman (1964) 231 Cal.App.2d 370 [41 Cal.Rptr. 800] (Crossman), the court cited Civil Code section 1582 and the Restatement of Contracts
"This option agreement itself contains indications that it but suggests a mode acceptable to respondent offerors. The provision for use of registered mail is not limited to notices required by the agreement, but extends `to any notice that either party ... desires ... to give to the other.' This broad inclusion of all notices, regardless of importance, implies mere suggestion of a permissive method of communication. The extrinsic evidence shows that both sides for a long period treated the option as exercised, and the contract of purchase as complete. This contemporaneous construction lends support to the trial court's view that registered mail was not a prescribed requirement or an absolute condition, but a mere suggestion." (Crossman, supra, 231 Cal.App.2d at pp. 372-373.)
PCGH contends that the record lacks substantial evidence to support the jury's verdict finding that the parties entered into the 2006 Agreement because it is undisputed that Keck never returned a signed copy of the agreement to PCGH.
The 2006 Agreement provides in relevant part, "If this letter meets with your approval, we request that you indicate such approval by returning the enclosed copy of this letter, appropriately signed."
The jury could have reasonably found that Keck's return of the signed letter would be an acceptable form of evincing his assent to the agreement, but that the provision did not mandate that such return was the only possible form of acceptance. In Devencenzi, the acceptance provision at issue stated, "`If this is agreeable to you please sign the two copies. Keep one for your files and return the other copy to me as soon as possible.'" (Devencenzi, supra, 170 Cal.App.2d at p. 515.) The Devencenzi court concluded that this language did not "impose ... an absolute condition as to the manner of acceptance, but only suggested a method which would be satisfactory to [plaintiffs]." (Id. at p. 518.) Similarly, the 2006 Agreement "request[ed]" that Keck indicate his acceptance by returning the letter signed; it did not state that Keck's return of the signed letter was the only possible manner by which he could indicate his assent to the agreement. (See 170 Cal.App.2d at p. 518 [concluding similar acceptance provision in contract did not mandate that contract could be accepted only by returning signed agreement].)
Thus, while PCGH notes that the court in Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 359 [72 Cal.Rptr.2d 598] stated, "`[W]hen the parties to a proposed contract have themselves fixed the manner in which their assent is to be manifested, an assent thereto, in any other or different mode, will not be presumed'" (italics omitted), the jury could have reasonably determined that the 2006 Agreement did not mandate a particular manner by which the parties could manifest their assent to the
Further, there is substantial evidence that Keck manifested his intent to be bound by the 2006 agreement. Keck testified that he signed the 2006 Agreement. In addition, Keck offered in evidence a copy of an e-mail that he sent to Bower on December 1, 2006, stating that he had signed the 2006 Agreement, and a copy of a return e-mail from Bower to Keck acknowledging Keck's signing.
In addition, Keck presented evidence that PCGH acted in a manner that suggested that it believed the 2006 Agreement was binding, including informing a key client that the agreement had been finalized. (See Crossman, supra, 231 Cal.App.2d at p. 373 [concluding parties entered into option contract where "both sides for a long period treated the option as exercised, and the contract of purchase as complete"]; Okun v. Morton (1988) 203 Cal.App.3d 805, 819 [250 Cal.Rptr. 220] ["Here, the conduct of the parties subsequent to the execution of the 1982 agreement and before any controversy had arisen, is persuasive evidence in determining the meaning of [the contract]."].)
PCGH claims that the trial court erred in granting Keck's motion for additur, or in the alternative, a new trial on the issue of damages.
Immediately after the clerk recorded the verdict, the trial court stated to the jury, "I have some concerns about some of the answers on the verdict form that I need to discuss with the attorneys." The court then excused the jury to the jury room.
Outside the presence of the jury, the court stated that neither it nor the attorneys understood "how [the jury] came up with that number [for damages]." After an unreported chambers conference, the court brought the jury back into court and told the jurors that they would have to come back the following day for further deliberations. The court then excused the jury for the day. Outside the presence of the jury, the court directed the attorneys to consider "additional questions to flesh out how they came up with that number," or to explain how the jury's damage award was supported by the evidence.
The following day, outside the presence of the jury, the court heard argument from counsel concerning whether the court had to take any further action with respect to the jury's damage award. Keck argued that the jury had failed to award approximately $329,000 in additional damages that it should have awarded to him in light of the jury's finding that the parties had entered into the 2006 Agreement. Keck requested that the trial court ask additional questions of the jury, to clarify its verdict on damages. PCGH argued that the jury had properly interpreted the 2006 Agreement and had awarded damages consistent with that interpretation. The trial court determined that because the parties had differing views as to whether the jury's verdict as to damages was supported by the evidence, the court would not ask further questions of the jury. The court added, "I think if there's anything that needs to be done, it should be done on postjudgment motions."
Keck filed a motion for additur or, in the alternative, a new trial on damages. In his brief, Keck argued that the jury found that the parties entered into the 2006 Agreement and that PCGH terminated Keck without cause on December 12, 2006. Keck noted that the 2006 Agreement contained a section entitled "Severance," which provided in relevant part: "`If the Company terminates your employment without Cause ... then you shall be entitled to receive (i) $250,000 ... plus (ii) the pro-rated amount of any Performance Bonus earned up to the date of termination ....'" Keck further argued that the 2006 Agreement specified a performance bonus for 2006 of $350,000. Keck contended that the jury thus should have awarded him $250,000 plus $329,808 (his prorated performance bonus for the 49 out of the 52 weeks in 2006 that he was a PCGH employee), for a total of $579,808. Keck further contended that, during closing argument, his counsel had argued that Keck was entitled to this amount of damages, and that PCGH's counsel had not disputed this amount nor argued that any other amount was the proper amount of damages. Keck requested that the court order an additur in the "net amount of $379,808,"
In its opposition, PCGH argued that the jury's damages award was consistent with the evidence. PCGH contended that the 2006 Agreement provided that Keck was not entitled to earn a performance bonus for 2006 unless he was employed by PCGH on January 31, 2007. According to PCGH, because Keck was terminated prior to January 31, 2007, he was not entitled to any portion of the 2006 performance bonus. PCGH maintained that its interpretation of the 2006 Agreement was supported by the text of the relevant provisions as well as "the parties' negotiations" related to the agreement. PCGH further argued that the jury had carefully considered the issue, noting that the jury had asked two questions during deliberations that concerned the relationship between bonus payments and employment status.
After further briefing and a hearing, the trial court granted Keck's motion. In its order, the court reasoned:
PCGH refused to consent to the additur, and thus, the trial court's order directing a new trial on damages became effective.
In Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1415 [160 Cal.Rptr.3d 753], the court outlined the law governing a motion for new trial based on inadequate damages, as well as the standard of review to be applied in reviewing a trial court's ruling on such a motion: "`Code of Civil Procedure section 657 states: "A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." A trial court has broad discretion in ruling on a new trial motion, and the court's exercise of discretion is accorded great deference on appeal. [Citation.] An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice.'"
Section 662.5 grants a trial court the power to issue a conditional additur order under the following circumstances:
The 2006 Agreement contains a section entitled "Severance," which provides in relevant part: "If [PCGH] terminates your employment without Cause, ... then you shall be entitled to receive (i) $250,000 payable over six months in equal semi-monthly installments, plus (ii) the pro-rated amount of any Performance Bonus earned up to the date of termination, payable on the date that such Performance Bonus otherwise would have been paid to you." (Italics added.)
In a section entitled "Compensation," the 2006 Agreement provides in relevant part: "Bonus for 2006. Contemporaneous Bonus of $250,000 (prorated for the remainder of the year) paid semi-monthly, beginning on September 19, 2006, plus a Performance Bonus of $350,000, which will be paid to you on January 31, 2007, if you are still employed on that date, offset by any amounts previously advanced to you." (Italics added.)
Also in the section entitled "Compensation" are the following provisions:
PCGH argues that, contrary to the trial court's ruling on Keck's motion for new trial, Keck was not entitled to any portion of his 2006 performance bonus pursuant to the severance provision in the 2006 Agreement because Keck was not employed by PCGH on January 31, 2007. Relying on the portions of the severance and bonus provisions italicized above, PCGH argues that it is "unambiguous that under the Severance provision any Performance Bonus to be paid under that provision is prorated to what is earned to the date of discharge." PCGH further notes that Keck was discharged prior to January 31, 2007, and that the 2006 performance bonus provision stated that the bonus would "be paid to you on January 31, 2007, if you are still employed on that date." PCGH argues that because Keck was discharged "more than a month before he would have earned any 2006 Performance Bonus," he was not entitled to any portion of the 2006 performance bonus pursuant to the severance provision.
PCGH contends that its interpretation of the 2006 Agreement is supported by the fact that while the 2006 performance bonus provision contained a requirement that Keck be employed by PCGH in order to receive the bonus, "neither the 2007 nor 2008 bonus provisions contained any requirement that Keck be employed into the following year." PCGH also argues that its interpretation of the 2006 Agreement is further supported by the fact that the agreement was negotiated at "a time when the parties knew of the financial hardships PCGH had faced and was facing," and that "CalPERS was scrutinizing PCGH's turnover and PCGH needed Keck to remain employed." Finally, PCGH contends that the jury properly interpreted the 2006 Agreement and the trial court "abused [its] discretion in overriding the jury's unanimous verdict and deciding that the damages awarded was inadequate."
In his respondent's brief, Keck contends that the trial court properly ordered a new trial as to damages because under the express terms of the severance provision, Keck was entitled to a prorated portion of his 2006 performance bonus. Keck argues in part: "[PCGH] absurdly interprets the contract to say that Keck gets a pro-rated amount of nothing because he had to be present at the end of the year. This is nonsensical and contradictory. A pro-rated amount is, by definition, the opposite of [an] all or nothing amount. The only way to make any sense of the Severance provision is to read it as urged by Keck."
The fact that the severance provision refers to a "pro-rated" portion of the bonus, thereby suggesting that Keck would be entitled to some portion of the bonus if he were to be terminated prior to earning the entire bonus (as in fact occurred), supports Keck and the trial court's interpretation of the 2006 Agreement. (See severance provision of 2006 Agreement [mandating payment of "the pro-rated amount of any Performance Bonus earned up to the date of termination, payable on the date that such Performance Bonus otherwise would have been paid to you" (italics added)].) Further, the severance provision draws a distinction between the concept of when a bonus would be "earned" and when it would become "payable." The 2006 performance bonus provision does not state when Keck would earn the performance bonus; rather, it states only that it would be "paid to you on January 31, 2007, if you are still employed on that date" (italics added). Thus, the 2006 Agreement may reasonably be interpreted as providing that Keck earned a bonus for 49 out of the 52 weeks in 2006 for which PCGH employed Keck, and that, pursuant to the severance provision, this amount was "payable as of the date that such Performance Bonus otherwise would have been paid to [Keck]."
On the other hand, PCGH's interpretation is not entirely without textual support. The 2006 bonus provision, unlike the 2007 and 2008 provisions, mandates that the bonus would be paid on a date certain "if [Keck is] still employed on that date." In light of this language, the 2006 performance bonus provision can reasonably be interpreted as providing that Keck would earn a 2006 performance bonus only if he were employed by PCGH on January 31, 2007. (See 2006 Bonus provision of 2006 Agreement [providing for "Performance Bonus of $350,000, which will be paid to you on January 31, 2007, if you are still employed on that date"].) PCGH also points to extrinsic evidence that it contends supports its interpretation of the agreement (namely, the circumstances surrounding the parties' negotiations of the 2006 Agreement).
Accordingly, we conclude that the trial court did not abuse its discretion in granting Keck's motion for additur, or in the alternative, a new trial on damages.
PCGH's appeals from the judgment, the trial court's order denying its motion for new trial, and the trial court's order denying its motion for attorney fees are dismissed. Keck's appeal from the trial court's order denying his motion for attorney fees is also dismissed.
The trial court's order denying PCGH's motion for JNOV is affirmed. The trial court's order granting Keck's motion for new trial on damages is affirmed. The matter is remanded to the trial court with directions to conduct a new trial on damages and any other necessary proceedings.
Haller, Acting P. J., and O'Rourke, J., concurred.
Section 431.70, relating to the pleading of an offset, states in relevant part: "Where cross-demands for money have existed between persons at any point in time when neither demand was barred by the statute of limitations, and an action is thereafter commenced by one such person, the other person may assert in the answer the defense of payment in that the two demands are compensated so far as they equal each other...."
In its second note, the jury asked, "Is the last sentence of [the 2006 Bonus provision of the 2006 Agreement] `if you are still employed on that date,' legally enforceable in reference to Special Instruction No. 8?" The court responded in relevant part, "If you find that the [2006 Agreement] is the operative agreement then the terms are enforceable. You should consider [the 2006 Agreement] in its entirety."
