Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS01272
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on September 24, 2008, be modified as follows:
On line 2 of page 17 of the opinion, following the first partial sentence that ends in the words “and secretly taken over by HCM” footnote 3 is added, to read as follows:
In a petition for rehearing, Hock contends that we have misconstrued the facts on this issue of construction management profits. Hock cites to several snippets from the trial court’s statement of decision, claims the waiver of profits was part of the Hockwood agreement, and also claims the evidence did not show that Hockwood could have performed this construction management work without him.
Hock, however, omits from his citations to the statement of decision, the trial court’s finding, in conclusion, that “[t]he evidence is clear that the parties intended Hock to receive the construction management profits while he worked for Hockwood. Wood and Rodgers have clearly waived any right to receive any such profits.” (Italics added.) Consequently, once Hock secretly transferred Hockwood’s existing construction management work to his newly formed company, HCM, in late 2003, there was no reason for Wood and Rodgers to continue to waive such construction management profits in favor of Hock. And again, the Hockwood agreement contemplated that Hockwood was in the land acquisition/development business and the construction management business. Finally, as noted, there was evidence showing that Hockwood could have performed this construction management work without Hock; this evidence was in the form of Wood’s testimony.
There is no change in the judgment.
Defendants’/Appellants’ petition for rehearing is denied.
BY THE COURT: SCOTLAND, P. J. DAVIS, J. ROBIE, J.