Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. GIC747885, Patricia Yim Cowett, Judge.
BENKE, Acting P. J.
In this case we once again consider the plaintiff law firm's claim that it is entitled to receive a bonus under the terms of a fee agreement with a former client. Previously, we found the law firm could offer parol evidence in support of its interpretation of two provisions of the fee agreement and therefore the trial court erred in granting the client's motion for summary judgment.
On remand, the trial court found that, even in light of the proffered parol evidence and the provisions we previously addressed, the parties had not considered whether a bonus would be due under the circumstances which in fact occurred. The parties do not dispute this finding, which is supported by substantial evidence in the record.
However, in addition to the provisions we previously addressed, the trial court considered another provision of the parties' agreement and found that it did provide the law firm with a right to a bonus. The trial court's interpretation is not supported by a fair reading of the provision even in light of the parol evidence offered by the parties. Accordingly, we must reverse the judgment entered in favor of the law firm.
FACTUAL SUMMARY
The origins of plaintiff and appellant Parker, Milliken, Clark, O'Hara & Samuelian, APC's (Parker Milliken), claims against defendant and appellant Roque De La Fuente II et al. (De La Fuente), are now two decades old. We fully set forth the lengthy history which gave rise to the parties' dispute in our earlier opinion, Parker Milliken, Clark, O'Hara & Samuelian v. Roque De La Fuente II et al. (unpublished opinion June 4, 2004, D041030) (Parker Milliken I):
"A. Fee Agreement
"In 1987 the County of San Diego (county) commenced a condemnation action against De La Fuente with respect to a parcel of land De La Fuente owned in Otay Mesa. The county needed the land in order to build a jail facility.
"In 1989, shortly before trial in the condemnation action was about to commence, De La Fuente retained Parker Milliken. At that point De La Fuente and Parker Milliken entered into the fee agreement which is at the center of their current dispute. Under the agreement De La Fuente agreed to pay Parker Milliken on an hourly basis at a rate not exceeding $200 an hour. According to Parker Milliken, the rates set forth in the agreement were less than its usual and customary billing rates. However, in addition to the hourly billings, the fee agreement provided Parker Milliken with a potential bonus. Section 2.3 of the agreement states: '2.3. As a bonus incentive, Clients agree to pay additional fees to Attorneys, for the sum recovered in excess of [the county's] outstanding offer of $6,400,000, pursuant to the following schedule:
" '2.3.1. No bonus for any recovery less than $8,400,000.
" '2.3.2. If the recovery is more than $8,400,000 and less than $12,400,000, the bonus shall be 2% of all sums in excess of $8,400,000.
" '2.3.3. If the recovery is more than $12,400,000 the bonus shall be 2 1/2% of all sums in excess of $8,400,000.
" '2.3.4. The term "sum recovered" includes all sums and consideration awarded to Clients by judgment, settlement, or otherwise, excluding any interest, litigation expenses, expert witness fees and attorneys' fees, and shall be based solely on the reasonable value determined by the Court of any property rights included in the award. If the matter is settled prior to judgment, Client will deduct all costs and attorneys' fees incurred to that date to determine the amount of the settlement payment offered as reasonable value for the property.'
"The bonus provided by section 2.3 was subject to reduction or elimination in the event Parker Milliken's representation was terminated or in the event of an appeal by either the county or De La Fuente. With respect to termination, section 7.1 of the fee agreement states: '7.1. Clients shall have the right at any time to terminate Attorneys' services upon written notice to Attorneys, and Attorneys shall immediately after receiving such notice cease to render additional services. Such termination shall not, however, relieve Clients of the obligation to pay the fees due for services rendered and costs incurred prior to such termination. If termination occurs prior to the commencement of trial and/or the receipt of a settlement offer which is later accepted by the Clients, no bonus will be due or owing Attorneys. If this agreement is terminated during trial, Attorneys entitlement to a bonus will be reduced by 50%. If this agreement is terminated after receipt of a settlement offer which is later accepted by the defendants, without hiring of new co-counsel to replace them, Attorneys will be entitled to the bonus as set out in paragraph 2.3 herein. If this agreement is terminated after receipt of a settlement offer which is later accepted by defendants after Clients have hired new co-counsel to replace Attorneys, Attorneys shall be entitled to 75% of the bonus described in paragraph 2.3 herein.'
"Section 10 of the agreement deals with Parker Milliken's rights in the event of an appeal. Section 10 states: 'New Trial and Appeal. This contract does not cover Attorneys' compensation for the cost of writing or participating in an appeal, remand or retrial. In the event of an appeal, remand or retrial, Attorneys and Clients shall agree on other arrangements for compensation. If Clients choose to appeal, and Attorneys are not retained as counsel for the appeal, no bonus shall be paid if the appellate decision, remand, or retrial results in a more favorable verdict for Clients. A bonus shall be paid commensurate with paragraph 2.3 if the appellate decision, remand or retrial results in a verdict less favorable to Client. If the trial verdict is appealed by [county], and Client and Attorneys do not agree to their continued association, no bonus shall be paid.'
"B. Trial
"In the spring of 1990 De La Fuente added Vincent Bartolotta and the firm of Thorsnes, Bartolotta, McGuire and Padilla as co-counsel on the case. Trial on the county's claims commenced during the summer of 1990. At trial Bartolotta and his firm examined all the witnesses presented and presented argument on behalf of De La Fuente. However, Parker Milliken did assist in preparation for trial and remained counsel of record.
"In September 1990 the jury returned a verdict finding that De La Fuente's property was worth $55.7 million and judgment on the verdict was entered. The county filed a motion for new trial. The trial court granted the county's motion but only on condition that De La Fuente decline a remittitur reducing his recovery to $22.9 million. De La Fuente in fact declined the remittitur and advised the trial court that he would appeal from the order granting a new trial.
"The trial court did require that the county increase its deposit of probable compensation to a total of $22.9 million. De La Fuente then withdrew the bulk of the probable compensation deposited by the county.
"C. Appeal
"De La Fuente filed a notice of appeal from the order granting a new trial on February 25, 1991. The county then filed a notice of cross-appeal from the earlier judgment entered on the jury's verdict as permitted by rule 3(e) of the California Rules of Court.
"On April 12, 1991, shortly after commencing an appeal, De La Fuente sent Parker Milliken a letter which stated in pertinent part: 'I . . . want to take the opportunity to thank you for your services during the preparation and trial for the condemnation case. Your advise [sic] was most helpful in achieving a favorable judgement [sic]. As you are aware, I decided to appeal the judges [sic] decision for a new trial and move to the next stage. At your suggestion, we have retained as counsel Justice Otto Kaus. . . .
" 'Now that the County has finally released the deposit and all work regarding the case as originally planned has been finished, it is time to review our original agreement. Section 10 states that the contract does not cover attorney compensation for the cost or writing or participating in an appeal, remand or retrial, and Section 7.1 states that I must notify you in writing of its termination. Therefore, said agreement . . . is hereby terminated.
" 'However, during the appeal process before the Appellate Court, and the Supreme Court if needed, I am sure we will need your advice on various issues. Also, if the final decision is a new trial I would be interested in having you represent us again. Since our current agreement has been terminated, I need to know your fees from now on, as well as the type of retainer agreement you have in mind. The fact that the judge has sent us back to square one is putting us in a position that makes it necessary that, in a way, I start from scratch again. Therefore, I would appreciate it if you could send me a proposed retainer agreement that takes into account the work ahead of us.'
"Parker Milliken responded to De La Fuente's letter on May 14, 1991. Parker Milliken's response stated in part: 'Regarding your comments on the review of our original agreement, termination under section 7.1 does not eliminate the bonus incentive provided for in Paragraph 2 of the agreement and its subsections. Instead, the bonus incentive can be modified by termination in certain ways, depending upon the outcome of an appeal or retrial. Accordingly, the bonus provision of our Retainer Agreement is still effective even though my services have been terminated.
" 'If you wish to also terminate the bonus incentive provision of the Retainer Agreement, I offer the following suggestion to do so: that portion of my fee under the bonus provision is $1,185,000. I suggest that upon payment to me of 20% of the bonus, i.e. $237,000, we cancel the bonus provision; also that any future work my firm performs be done at our then current hourly rates.'
"On May 30, 1991, De La Fuente wrote back to Parker Milliken. His letter stated: 'I am not in agreement with your interpretation of our agreement. I am prepared to sit down with you and clarify the intent and the letter of the agreement. If we dedicate some time and energy, and discuss our individual points-of-view, we might arrive at an interpretation of mutual consent.'
"De La Fuente and Parker Milliken were never able to resolve their conflicting views of Parker Milliken's right to a bonus payment. By its own admission Parker Milliken did little work on the appeal.
"In August 1992, after the bulk of the work on the appeal had been completed but before any decision had been rendered, Parker Milliken agreed that it would accept a token installment payment on its previous demand and wait until the matter was resolved to receive the balance of the $237,000 it was willing to accept as a bonus.
"Our opinion in the appeal from the trial court['s court judgment in the condemnation action] was filed in June 1993. We reversed the judgment on the underlying jury verdict because we found the trial court had erred in permitting De La Fuente to present evidence that the highest and best use of his land was as a private detention facility. Because we agreed with the county that such evidence should not have been admitted, we did not reach De La Fuente's contention that the trial court erred in granting a new trial.
"D. Settlement on Remand
"On November 10, 1993, following issuance of our remittitur [in the condemnation action], De La Fuente advised Parker Milliken that he no longer needed the firm's services. In response to this notification, Parker Milliken sent De La Fuente a final bill for $10,000 in fees and costs incurred while the case was on appeal. With respect to the still unresolved bonus issue, Parker Milliken advised De La Fuente that the bonus 'is not yet due since the "sum recovered" is a condition precedent to computing it and the "sum recovered" has not yet been finally determined.'
"Because of an intervening dispute as to whether De La Fuente had accepted a settlement offer from the county, trial in the condemnation case was eventually scheduled to take place in early 1997. However, shortly before the 1997 trial, the county and De La Fuente reached a settlement. The county agreed to pay De La Fuente a total of $38.7 million, $26.2 of the settlement amount was allocated to compensation for the value of De La Fuente's property and the remaining $12.5 million was allocated to interest and litigation costs.[¶] . . . [¶]
"A portion of the deposit paid by the county was held in the registry of the trial court to pay any amount Parker Milliken, as well as other claimants, were was entitled to under various agreements with De La Fuente. When additional efforts to resolve the parties' dispute were unsuccessful, Parker Milliken filed a complaint against De La Fuente. Parker Milliken alleged causes of action for breach of contract, fraud, breach of the covenant of good faith and fair dealing, quantum meruit, common counts and unjust enrichment.
"In the trial court Parker Milliken asserted that under section 2.3 of the fee agreement a bonus was due because in fact De La Fuente recovered more than $8.4 million. Parker Milliken further asserted that the obligation to pay a bonus did not end when De La Fuente terminated the fee agreement in April 1991 because, by the terms of section 7.1, Parker Milliken's right to a bonus could not be eliminated by way of a posttrial termination. Finally, Parker Milliken argued that the county's ultimately successful appeal did not deprive it of its right to a bonus because De La Fuente continued his 'association' with Parker Milliken within the meaning of section 10 of the agreement.
"In support of its interpretation Parker Milliken made an offer of proof as to testimony from De La Fuente's former general counsel, who drafted the fee agreement. The former general counsel would have testified that the bonus was intended not only as compensation for work in the first trial, but as an incentive to keep Parker Milliken involved in the case if there was an appeal from a judgment and Parker Milliken's services were needed on any remand. According to the general counsel at the time the fee agreement was negotiated, De La Fuente was concerned that his attorneys not abandon him while the litigation was pending as had happened in the past when he and his counsel had disagreed over strategy.
"Shortly before trial De La Fuente made a motion in limine to exclude the admission of any parol evidence offered by Parker Milliken in support of its interpretation of the agreement. The trial court granted De La Fuente's motion. The trial court found that the fee agreement was unambiguous and was not susceptible to the interpretation offered by Parker Milliken. In particular, the trial court found that because, following the county's appeal, Parker Milliken had not reached any agreement with De La Fuente as to whether Parker Milliken would continue to have the right to a bonus, the bonus was no longer due. After the trial court ruled on the motion in limine, it invited De La Fuente to make a motion for summary judgment. De La Fuente did so and the trial court granted the motion." (Parker Milliken I, supra, slip opn. pp. 1-10, fn. omitted.) Thereafter the trial court entered a judgment in favor of Parker Milliken.
On Parker Milliken's appeal from the judgment we reversed. We stated: "The parties' dispute is over De La Fuente's contention that the right to a bonus was lost under the termination and appeal provisions of the agreement, sections 7.1 and 10 respectively. As to those provisions we agree with Parker Milliken that it has offered reasonable interpretations under which its right to a bonus would be preserved." (Parker Milliken I, supra, slip opn. pp. 13-14.) We found that the provisions of section 7.1 which eliminated the right to a bonus were susceptible to Parker Milliken's interpretation that they only applied in the event Parker Milliken was terminated before or during trial. (Id. at pp. 14-15.) With respect to section 10 of the agreement, we found that Parker Milliken's continued work on the appeal, although limited, might be sufficient to support the firm's right to a bonus. We stated: "Read literally the phrase 'agree to their continued association' includes the informal arrangement between De La Fuente and Parker Milliken which, at De La Fuente's instance, in fact developed following the 1990 trial. Moreover, if a trier of fact accepted the testimony of De La Fuente's general counsel that De La Fuente was principally concerned about making sure that his trial counsel would be available to him on any remand, a concern that is in part reflected in De La Fuente's own April 12, 1991, letter to Parker Milliken, then Parker Milliken' s interpretation of section 10 would be consistent with the intent of the parties. Because Parker Milliken's interpretation is consistent both with the literal terms of the agreement and evidence offered as to the intent of the agreement, it was an interpretation to which the agreement was reasonably susceptible. Thus, Parker Milliken should have been permitted to offer parol evidence in support of its interpretation." (Parker Milliken I, supra, slip opn. p. 16, fn. omitted.)
Thus we reversed the trial court's judgment.
PROCEEDINGS ON REMAND
On remand, the trial court conducted a bench trial at which it considered the parties' fee agreement and the parol evidence offered by the parties, including testimony from the lawyers who negotiated the agreement. On June 16, 2005, the trial court issued a tentative decision. In its tentative decision the trial court found: "The fact situation here, a desirable verdict set aside by the granting of a new trial, the granting of the new trial appealed, affirmed and remanded, was not a situation contemplated by the parties to the contract and thus fits the 'or otherwise' language as supported by the testimony and writings of Mr. E. Grijalva, the drafter of these provisions at Roque de la Fuente's direction." Thus the court found that Parker Milliken was entitled to a $445,000 bonus. The trial court found that although the limited partnership which was the party to the agreement was liable for the bonus, Roque de La Fuente, was not himself personally liable. The trial court directed that Parker Milliken prepare a proposed judgment and proposed statement of decision.
The proposed judgment and proposed statement of decision prepared by Parker Milliken in fact found Roque De La Fuente was personally liable. De La Fuente objected to the judgment and statement prepared by Parker Milliken. Without conducting a hearing, the trial court interlineated Parker Milliken's proposals and directed that Parker Milliken revise its proposals to conform to the interlineations. The trial court's interlineations largely eliminated De La Fuente's personal liability. Parker Milliken complied with the trial court's direction and the trial court signed the amended documents. As entered, they did not provide for any prejudgment interest.
Thereafter, the trial court denied Parker Milliken's motion for attorney fees.
De La Fuente filed a timely notice of appeal. Parker Milliken filed a cross-appeal in which it challenges the trial court's determination that Roque De La Fuente is not personally liable, the trial court's failure to award prejudgment interest, and the denial of Parker Milliken's motion for attorney fees.
DISCUSSION
I
Our review of the trial court's judgment is governed by familiar principles. In general, the interpretation of a contract is a question of law. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Thus, where no extrinsic evidence is offered or where the extrinsic evidence is not in conflict, we review a trial court's interpretation of a contract de novo. (See Medical Operations Management, Inc. v. National Health Laboratories, Inc. (1986) 176 Cal.App.3d 886, 891.) "In Parsons v. Bristol Development Co. . . . the Supreme Court recognized that 'there has been confusion concerning the rules for appellate review of the interpretation of written instruments . . . .' Accordingly, the Parsons court sought 'to define the scope of such review' as follows: 'The interpretation of a written instrument, even though it involves what might properly be called questions of fact, is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. Extrinsic evidence is 'admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible' and it is the instrument itself that must be given effect. It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.' [Citations.] The court specifically took issue with a line of cases which had held that a trial court's interpretation of a contract was binding whenever ' "conflicting inferences may be drawn" from extrinsic evidence.' [Citations.] Chief Justice Traynor's opinion adopting the position he advocated in his dissent in Estate of Rule, supra, explained 'it is only when conflicting inferences arise from conflicting evidence, not from uncontroverted evidence, that the trial court's resolution is binding. 'The very possibility of . . . conflicting inferences, actually conflicting interpretations, far from relieving the appellate court of the responsibility of interpretation, signalizes the necessity of its assuming that responsibility.:" ' [Citation.] The rule thus emerges that it is only when the foundational extrinsic evidence is in conflict that the appellate court gives weight to anything other than its de novo interpretation of the parties' agreement. [Citations.]" (Medical Operations Management, Inc. v. National Health Laboratories, Inc., supra, 176 Cal.App.3d at p. 891.)
II
The parties agree with the trial court's determination that at the time the fee agreement was negotiated, the parties did not contemplate whether a bonus would be due under the particular circumstances which in fact occurred following De La Fuente's initial success in the trial court. The parties' acquiescence in this aspect of the trial court's determination is hardly surprising. Parker Milliken's trial ended in 1990 and De La Fuente did not recover any amount from the county until 1997, and then only after a remand on appeal and an intervening dispute as to the validity of a settlement agreement with the county had been resolved. Indeed, in its trial brief Parker Milliken stated in part: "Paragraph 10 does not precisely fit the circumstances of this case . . . . Neither Defendants [n]or Plaintiff contemplated the precise scenario leading to the settlement that occurred here." Parker Milliken's counsel reiterated this concession to the trial court at the commencement of trial: "The fact of the matter is that paragraph [paragraph 10] doesn't fit the circumstances that happened in this case." In addition, Grijalva, the attorney who negotiated the fee agreement on behalf of De La Fuente, testified that the scenario which occurred was "not in the contract, no."
Thus the parties' fundamental dispute is whether, even though their agreement did not consider the possibility of the lengthy and circuitous post-trial proceedings which occurred, the firm was nonetheless entitled to a bonus. As we explain below, such an obligation does not appear on the face of the contract and there is no basis upon which such an obligation can be implied.
III
Even though Parker Milliken has conceded the parties did not contemplate whether a bonus would be due under the circumstances which occurred following the 1990 trial, the firm argues the trial court properly relied upon section 2.3.4 of the contract. As we have noted, section 2.3.4 defines "sum recovered" as including "all sums and consideration awarded to Clients by judgment, settlement, or otherwise . . . and shall be based solely on the reasonable value determined by the Court of any property rights included in the award." (Italics added.) As De La Fuente contends, this provision was drafted by the lawyer representing Parker Milliken, Richard Franck. At trial, Franck was asked what "or otherwise" meant as used in section 2.3.4. He responded: "Offhand I don't know. Unless there was some other kind of arrangement where they agreed to exchange property or something that can be in the final settlement."
Grijalva, the lawyer representing De La Fuente, testified that he understood that the fee agreement was meant to provide compensation for Parker Milliken's services during the initial trial and that the right to a bonus could not be arbitrarily terminated by De La Fuente. However, he did not offer any interpretation of section 2.3.4 which varied from Franck's.
Thus, in interpreting section 2.3.4 we are left with the face of the contract and the undisputed testimony of Franck. Under the interpretative maxim ejusdem generis, where general words follow specific words, the general words are construed to embrace only things similar in nature to those enumerated by the specific words. (See Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1072-1073; Civ. Code, § 3534; 17A Am.Jur.2d (2004) § 364.) Here, in light of ejusdem generis, section 2.3.4 is limited to the procedural vehicles which would give rise to the right to a bonus: a judgment, a settlement, or some other procedural device, such as an arbitration award. The literal language of the contract cannot be extended to include the conditions under which a bonus was payable.
Franck's testimony offers a slightly different definition, one under which "otherwise" refers to the types of consideration De La Fuente might receive, rather than the procedural means of providing the consideration. For instance, under Franck's interpretation, "otherwise" would include the receipt of land rather than a judgment or a cash settlement. However, even Franck's interpretation does not extend to the conditions under which a bonus was due.
Not only is the scope of section 2.3.4 limited by its literal terms as well as Franck's testimony, the scope of section 2.3.4 is also implicitly limited by the detailed provisions of section 7.1 and section 10. Those provisions set forth a number of alternative conditions under which the bonus was to be paid, reduced, or eliminated entirely in the event the agreement was terminated or an appeal delayed recovery on a verdict. If in addition to the circumstances set forth in section 7.1 and section 10, the parties intended that a bonus would be paid after termination or following an appeal when any "other" circumstance arose not described in those provisions, one would expect that such an exception would be made part of either section 7.1 or section 10 or both provisions.
In sum then, contrary to the conclusion of the trial court, the "or otherwise" provision of section 2.3.4 does not provide Parker Milliken with the right to recover a bonus.
IV
As De La Fuente points out, on this record we are not in a position to imply a covenant to pay the bonus.
We have no power to imply the existence of a covenant in the absence of several concurrent conditions: " '(1) the implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on grounds of legal necessity; (4) a promise can be implied only where it may be rightfully assumed that it would have been made if attention had been called to it; and (5) there can be no implied covenant where the subject is completely covered by the contract . . . .' [Citations.]." (Frankel v. Board of Dental Examiners (1996) 46 Cal.App.4th 534, 545-546; see also Cousins Inv. Co. v. Hastings Clothing Co. (1941) 45 Cal.App.2d 141, 147; Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65 Cal.App.4th 1469, 1478.)
As De La Fuente points out, Parker Milliken cannot meet all of these conditions. Because the parties did not contemplate the circumstances under which De La Fuente eventually recovered from the county, it cannot be said that a covenant arises from the language of the contract or reflects the intention of the parties. Moreover, if the parties had considered the possibility of a lengthy period of time between the initial trial and the eventual recovery, following Parker Milliken's termination, it cannot be assumed De La Fuente would have agreed to pay the bonus.
Three undisputed circumstances are also of some note. First, although Parker Milliken was not paid its customary hourly fee, it was paid in excess of $200,000 in attorney fees in connection with its work on the first trial. Secondly, even though the circumstances which occurred were not contemplated by the parties, from its inception the bonus incentive was clearly contingent upon circumstances beyond Parker Milliken's control. Under section 7.1, no bonus was due if Parker Milliken was terminated before De La Fuente received an offer it accepted. In addition, under the express provisions of section 10, no bonus would be due if Parker Milliken was replaced as counsel on appeal and on appeal De La Fuente's new counsel obtained a better result than Parker Milliken had obtained on appeal, and no bonus would be due if the trial verdict was appealed by the county and the parties did not agree on their continued association. Finally, as we have noted, our disposition of the appeal following the first trial eliminated any recovery and shortly thereafter De La Fuente terminated any relationship with Parker Milliken.
These later circumstances are significant because they undermine any contention that the failure to provide Parker Milliken with the bonus will result in substantial injustice or sanction bad faith behavior. Parker Milliken was paid a substantial amount for its work, it was clearly aware the bonus was entirely contingent, and the causal relationship between its work and De La Fuente's eventual recovery, while not broken, was attenuated by time and circumstance. In short, Parker Milliken cannot establish that payment of the bonus is a legal or equitable necessity. (See Frankel v. Board of Dental Examiners, supra, 46 Cal.App.4th at pp. 545-546.)
CONCLUSION
The parties did not contemplate and hence did not agree that Parker Milliken would be paid a bonus, if, years after it had ceased working on the underlying case, and after the verdict it had obtained had been entirely reversed, De La Fuente recovered from the county. Because De La Fuente made no agreement to pay a bonus under those circumstances, it cannot be compelled to do so.
DISPOSITION
The judgment is reversed with instructions to enter judgment in favor of De La Fuente.
In light of our disposition of De La Fuente's appeal, we do not need to consider Parker Milliken's cross-appeal.
De La Fuente to recover its costs of appeal.
WE CONCUR: HALLER, J., McDONALD, J.