Andros v. Simon Property Group

















Filed 3/2/12 Andros v. Simon
Property Group CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

KRISTEN ANDROS, Plaintiff and Appellant, v. SIMON PROPERTY GROUP, INC., et al., Defendants and Respondents.

G044353 (Consol. with G044764) (Super. Ct. No. 30-2009-00119445) O P I N I O N

Appeals from a judgment
and a postjudgment order of the Superior
Court of Orange
County, Steven L. Perk, Judge.
Affirmed.

Buchalter Nemer, Robert
M. Dato; Law Office of Richard Meaglia and Richard Meaglia for Plaintiff and
Appellant.

Epstein Becker &
Green, William O. Stein and Brendan Y. Joy for Defendants and Respondents.

* * *



INTRODUCTION

Plaintiff
Kristen Andros was employed by defendant The Mills Corporation (Mills) as a
vice‑president of leasing when, in 2007, defendant Simon Property Group,
Inc. (Simon), acquired Mills in a joint venture with Farallon Capital
Management. Simon thereafter hired Andros
as a vice‑president of leasing in its Mills division. When Simon faced financial difficulties in
2008, Andros was selected for layoff. Andros sued Mills and
Simon[1]
for, inter alia, breach of contract, based on allegations Andros
was not paid certain commissions and severance.
Following a bench trial, the trial court entered judgment in favor of
defendants and granted their postjudgment motion for prevailing party attorney
fees. Andros
appealed from the judgment and the postjudgment order awarding attorney fees,
and we have consolidated Andros’s appeals.

We affirm. The trial court did not err by relying on extrinsic evidence to interpret the term
“Net Present Value” in determining whether Andros was
owed commissions under Mills’s commission plan.
Substantial evidence supported the trial court’s findings that Mills’s
severance plan was terminated in April 2008, and that Andros
was not entitled to severance under that plan when she was laid off by Simon in
December 2008. Substantial evidence also
supported the court’s finding that Andros was not entitled to severance
pursuant to the severance pay policy contained in Simon’s employee handbook
because severance pay under the policy was expressly conditioned on Andros
signing a general release agreement which she refused to sign.

Andros
challenged the attorney fees award solely on the ground the underlying judgment
was entered in error. Because we
conclude the trial court did not err in entering judgment, Andros’s
appeal from the postjudgment order awarding attorney fees is without merit.

FACTS[2]

In 1999, Andros
became employed by Mills as a leasing representative on an at‑will
basis. Mills was a real estate company
that owned and operated full‑priced shopping malls and outlet malls. Andros’s primary job
function was to find tenants and lease them space at the shopping malls. In November 2004, Andros
became a leasing director.

Andros
was paid a base salary plus an incentive bonus that was governed by Mills’s
1999 bonus plan. Under the 1999 bonus
plan, leasing representatives were eligible for an incentive bonus in an amount
up to 40 percent of their base salaries, contingent on Mills’s financial
situation and the leasing representatives “meeting their numbers.”

In 2005, Mills began to
have “severe financial problems” and looked to merge with another real estate
company. In an effort to appear more
attractive to potential buyers, Mills “increased leasing revenue through higher
occupancy rates.” Mills’s leasing
representatives’ performance was critical to increasing the occupancy
rates.

In May 2006, Mills
revised the compensation plan for its leasing representatives and instituted a
commission plan that became retroactively effective January 1, 2006 (the Mills Commission
Plan). The Mills Commission Plan
expressly stated that it replaced all prior bonus plans. The Mills Commission Plan “was devised as a
short‑term solution to retain leasing personnel and keep Mills’ malls
occupied while Mills looked for a buyer.
Its goal was to pay the leasing representatives more than they could
have earned under Mills’ 1999 Bonus Plan and to give them an immediate payment
as incentive to stay at Mills. . . . The Commission Plan was a short
term solution to help increase revenue and retain leasing representatives during
the period of financial crisis.”

Also, in light of the
uncertainty among employees, attendant to efforts to find a buyer, Mills
implemented a severance plan to ensure retention of employees (the Mills
Severance Plan). The Mills Severance
Plan stated that any Mills’s successor could terminate the Mills Severance Plan
one year after a change in control, after board of director approval, and after
three months’ notice to participants. In
December 2006, Andros became a vice‑president of leasing and her main job
duties remained focused on finding tenants for Mills’s malls.

In April 2007, Simon,
through a joint venture with Farallon Capital Management, entitled SPG‑FCM
Ventures, LLC (SPG‑FCM), acquired Mills.
SPG‑FCM was a subsidiary of Simon and, after the acquisition,
managed Mills’s properties. Simon
offered Andros a job as a vice‑president of leasing “with the same title
and job duties she had at Mills,” and Andros accepted Simon’s offer.

Andros’s offer letter
was signed by Simon’s senior vice‑president of human resources, Irv
Kravitz. Kravitz informed Andros in the
offer letter that after the change in control of Mills occurred, Andros would
continue on Mills’s benefits and compensation plans until Mills’s plans were
consolidated with Simon’s plans. The
offer letter explained that Mills’s compensation and benefits plans ultimately
would be replaced by Simon’s compensation and benefits plans. It stated that when this change occurred, it
would not result in a material change to the benefits that Andros had at
Mills. The offer letter did not state
whether there would be a material change in Andros’s compensation after the
Mills and Simon compensation plans were consolidated, although it stated that
Andros’s compensation rights would be “no less favorable” than what she had
been provided at Mills prior to the acquisition. At Mills, Andros received a salary and
commissions. At Simon, she was also to
receive a salary, plus a bonus and the right to participate in Simon’s
performance‑based restricted stock agreement. Kravitz “considered these types of plans to
be no less favorable to the types of plans she was on at Mills.”

On April 18, 2007,
about two weeks after Simon’s acquisition of Mills, all former Mills’s
employees including Andros, received a memorandum from Simon, informing them
that the Mills Commission Plan would be in place until December 31,
2007. Simon thereafter placed Andros on
the same bonus plan as all other vice‑presidents of leasing at
Simon.

On March 27, 2008,
SPG‑FCM’s board of directors unanimously passed a resolution that
terminated the Mills Severance Plan.
This action was in accordance with the terms of the Mills Severance Plan
requiring that its termination could be effected by the board of directors of
Mills’s successor. On April 28,
over one year after SPG‑FCM’s acquisition of Mills, Kravitz sent a
memorandum to former Mills’s employees including Andros, providing the
employees the requisite 90‑day notice that the Mills Severance Plan had
been terminated.

Simon’s leasing
department faced financial difficulties in 2008. Consequently, in December 2008, Simon laid
off 36 employees, including Andros.
Simon offered Andros severance pay pursuant to Simon’s severance pay
policy which required Andros to sign a general release. Andros refused to sign a general release and
was not given severance pay.



PROCEDURAL HISTORY

Andros filed a complaint
alleging a breach of contract claim against Mills, a breach of contract claim
against Simon, a breach of the implied covenant of good faith and fair dealing
claim against Simon, a promissory fraud claim against Simon, and an unfair
business practices claim against defendants.
The complaint was based on allegations, inter alia, that Andros’s
employment was terminated without good cause and that Andros was not paid
certain commissions and other benefits to which she believed she was
contractually entitled.

Following a bench trial,
the court issued a minute order stating the court’s verdict in favor of
defendants as to all causes of action.
At Andros’s request, the trial court issued a statement of
decision. The court overruled Andros’s
objections to the statement of decision, and entered judgment in defendants’
favor. Andros appealed from the
judgment.

The trial court granted
defendants’ motion for prevailing party attorney fees in the total amount of
$262,333.44. Andros appealed from the
court’s postjudgment order. We
consolidated Andros’s two appeals for purposes of oral argument and decision on
appeal.



DISCUSSION

I.

The Trial Court Did Not Err by Entering
Judgment in Defendants’ Favor.

Andros contends
the judgment should be reversed because (1) the trial court erroneously
relied on extrinsic evidence interpreting the term “Net Present Value” as
contained in the Mills Commission Plan; (2) insufficient evidence showed
the Mills Severance Plan had been effectively terminated before Andros’s
employment was terminated; and (3) Simon breached its contract by failing
to pay Andros severance under Simon’s severance pay policy, as a matter of
law. We address and reject each of
Andros’s contentions for the reasons explained, post.

A.

>Standards of Review and General Contract
Principles

“Where the
court issues a statement of decision, it need only recite ultimate facts
supporting the judgment being entered.
[Citation.] If the judgment is
supported by factual findings based on substantial evidence, the reviewing
court affirms. [Citation.] Conflict in the evidence is of no
consequence.” (People v. Orange
County Charitable Services (1999) 73 Cal.App.4th 1054, 1071.) “When a trial court’s factual determination
is attacked on the ground that there is no substantial evidence to sustain it,
the power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination,
and when two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the
trial court. If such substantial
evidence be found, it is of no consequence that the trial court believing other
evidence, or drawing other reasonable inferences, might have reached a contrary
conclusion.” (Bowers v. Bernards
(1984) 150 Cal.App.3d 870, 873‑874.)

In this appeal,
Andros argues, inter alia, the trial court misinterpreted certain
contracts. We apply basic rules of
contract interpretation in our review of the trial court’s interpretation of
those contracts. (Founding Members of the Newport Beach Country Club v. Newport Beach
Country Club, Inc. (2003) 109 Cal.App.4th 944, 955 (Founding Members).) The
basic goal of contract interpretation is to give effect to the parties’
mutual intent at the time they entered the contract. (Ibid.) “When a contract is
reduced to writing, the parties’ intention is determined from the writing
alone, if possible. [Citation.] ‘The words of a contract are
to be understood in their ordinary and popular sense.’ [Citations.]
[¶] Extrinsic evidence is admissible to prove a meaning to which the contract
is reasonably susceptible.
[Citations.] If the trial court
decides, after receiving the extrinsic evidence, the language of the contract
is reasonably susceptible to the interpretation urged, the evidence is admitted
to aid in interpreting the contract.” (Ibid.)

“The ultimate
construction placed on the contract might call for different
standards of review. When no extrinsic
evidence is introduced, or when the competent extrinsic evidence is not in conflict,
the appellate court independently construes the contract. [Citations.]
When the competent extrinsic evidence is in conflict, and thus requires
resolution of credibility issues, any reasonable construction will be upheld if
it is supported by substantial evidence.”
(Founding Members, supra,
109 Cal.App.4th at pp. 955‑956.)

B>.

>The Trial Court Did Not Err in Relying on
Extrinsic Evidence to Interpret the Term “Net Present Value” in the Mills
Commission Plan.

Andros contends the
trial court erred by relying on extrinsic evidence in interpreting the term
“Net Present Value” contained in the Mills Commission Plan. She argues the language of the Mills
Commission Plan was not reasonably susceptible to the interpretation urged by
the extrinsic evidence.[3] Therefore, Andros contends, such evidence
should not have been considered and insufficient evidence supported the trial
court’s finding she was not owed commissions under the Mills Commission Plan. She argues the trial court should have
awarded her $173,444.43 in unpaid commissions plus statutory penalties under
Labor Code section 203, subdivision (a) and prejudgment
interest. For the reasons we will
explain, the trial court did not err by considering the extrinsic evidence and
that evidence constituted substantial evidence to support the court’s
interpretation of the Mills Commission Plan.
(Founding Members, >supra, 109 Cal.App.4th at pp. 955‑956.)

The Mills Commission
Plan stated that the “Commission Payout” is “the amount that a Participant will
receive in accordance with Section V” of the Mills Commission Plan. The Mills Commission Plan further stated at
section V.A.: “The Commission
Payout for any Qualifying Lease is the product of the Net Present Value of the
Qualifying Lease multiplied by the applicable Commission Percentage
Factor.” The term “‘Net Present Value’
of a Qualifying Lease” was defined in the Mills Commission Plan as “the product
of: (a) Gross Rent minus Costs
multiplied by (b) the Discount Factor.”
The term “Discount Factor” was defined as 8 percent.

At trial, Robert Swarts
testified regarding the proper interpretation of the term “Net Present Value”
as it appears in the Mills Commission Plan.
Swarts, who worked for Mills for eight years and then for Simon after
the acquisition, was Simon’s director of lease services at the time of
trial. His responsibilities included
reviewing lease transactions and obtaining approval for them, and performing
net present value calculations.

Swarts testified the
term “Net Present Value” in the Mills Commission Plan is a “defined financial
term that people all over the world use.”
He explained that “it’s so defined, it’s part of the Excel software as a
standard function.” He testified that
net present value is determined according to a standard formula, contained in
trial exhibit No. 234, which takes the series of cash flows projected to
occur over the number of years of a lease, and discounts them to their present
value (the standard formula). Swarts
explained, “[t]he gross rent less the costs in each year has to be discounted
by the number of—by that number of years to get a present value, and each year
has to be summed.” Otherwise, the cash
flows from future years of the lease would not be given a present value, as
contemplated by the term “net present value,” and commission calculations would
be inflated.

Andros testified that
the net present value should be determined by summing all of the cash flows for
each year of the lease and then discounting that sum once by 8 percent. Andros did not offer any expert witness
testimony challenging Swarts’s testimony that the term “Net Present Value” was
a standard financial term.

In support of her
interpretation of the term “Net Present Value,” Andros offered into evidence a
document she received when she was given the Mills Commission Plan (marked as
trial exhibit No. 61). That
document was entitled “NPV Commission Program aka Mills & Money” and
summarized the Mills Commission Plan.
Andros specifically relied on “Example A” contained in that document,
which stated: “1,000 SF [(square feet)]
space in a ‘B’ center is leased at a net present value $50 PSF [(per square
foot)] annual gross rent for 10 years with a $100,000 allowance. The total NPV [(net present value)] rent is
$500,000 less the $100,000 allowance for an NPV of $400,000. The commission factor is 1% so the commission
is $4,000.” Swarts testified, however,
that Example A was not inconsistent with the standard formula for net
present value because Example A showed the standard formula had already
been applied to determine a net present value of $50 per square foot.

In the statement of
decision, the trial court found Andros was not owed any commissions under the
Mills Commission Plan. The court noted
Andros had identified a single lease in 2006, for which she claimed she was not
paid the full commission earned under the Mills Commission Plan. The court stated that it found Swarts had
correctly calculated Andros’s 2006 commission under the Mills Commission Plan
by using the standard formula for net present value. The court observed that Andros’s commission
calculations “failed to account for time as a factor in her applied formula”
even though “[t]ime as a factor in this calculation was confirmed by the
example given in Exhibit 61.” The
trial court concluded, “the commissions calculations for Plaintiff for 2006
were proper, and Plaintiff was not ‘short paid’ or owed any commissions from
Mills for this time.”

The trial court did not
err by admitting Swarts’s testimony regarding the standard formula for net
present value and its application to the Mills Commission Plan. His testimony was relevant to prove a meaning
of the term “Net Present Value” to which the language of the Mills Commission
Plan was reasonably susceptible. (See >Founding Members, supra, 109 Cal.App.4th at p. 955.) His testimony constituted substantial
evidence to support the trial court’s calculations and finding that Andros was
not owed commissions under the Mills Commission Plan, as it explained the
calculation of net present value discounts each and every year as of the proper
time. Andros’s explanation does not.

Citing >Peiser v. Mettler (1958) 50 Cal.2d 594,
610, Andros argues Swarts’s testimony was inadmissible custom or usage
evidence. Peiser v. Mettler does not assist Andros because in that case,
custom and usage evidence was inadmissible because it varied or contradicted
the terms of the lease agreement. (>Ibid.)
Here, as discussed ante,
Swarts’s testimony that the term “Net Present Value” is a standard financial
term of art requiring the use of the standard formula does not vary or
contradict the terms of the Mills Commission Plan.

Andros also argues
Swarts’s custom or usage evidence should not have been considered because she
was unaware of the standard formula for net present value when she received the
Mills Commission Plan. “‘“Neither law
nor equity requires that every term and condition of an agreement be set forth
in the contract. [Citations.] The usual and reasonable terms found in
similar contracts can be looked to, unexpressed provisions of the contract may
be inferred from the writing, external facts may be relied upon, and custom and
usage may be resorted to in an effort to supply a deficiency if it does not
alter or vary the terms of the agreement.
[Citations.]” [Citations.] At bottom, “[i]f the parties have concluded a
transaction in which it appears that they intend to make a contract, the court
should not frustrate their intention if it is possible to reach a fair and just
result, even though this requires a choice among conflicting meanings and the
filling of some gaps that the parties have left.”’” (Denver D.
Darling, Inc. v. Controlled Environments Construction, Inc. (2001) 89
Cal.App.4th 1221, 1237.) We find no
error.

C.

>Substantial Evidence Showed the Mills
Severance Plan Was Effectively Terminated Before Andros Was Laid Off by Simon.

Andros contends insufficient evidence supported the trial
court’s finding the Mills Severance Plan was effectively terminated before
Andros was laid off by Simon. She
therefore argues the trial court erred by failing to award her severance pay in
the amount of $227,973.33, plus statutory penalties and prejudgment interest,
under the terms of the Mills Severance Plan.

The Mills Severance Plan
stated in relevant part: “The Company
reserves the right to amend, modify, suspend or terminate this Plan by action
of the Board at any time upon three (3) months’ notice to the Participants
generally; provided that no such amendment, modification, suspension or
termination that has the effect of reducing or diminishing the right of any
Participant, shall be effective without the written consent of such
Participant, for a period of one year following the Change in Control if
adopted (i) after a Change in Control or (ii) before a Change in
Control but in anticipation thereof.”
The Mills Severance Plan defined the term “Board” as “[t]he Board of
Directors of the Company,” and the term “Company” as “The Mills Corporation and
any successor thereto.”

Substantial evidence
showed the board of directors of Mills’s successor took the requisite action to
terminate the Mills Severance Plan, in March 2008. Evidence was provided at trial that in April
2007, Mills was purchased by a joint venture between Simon and Farallon Capital
Management, known as SPG‑FCM, and SPG‑FCM managed Mills’s
portfolio.

At trial, Tracy
Reinholt, a senior paralegal employed by Simon, testified that she was directed
by Simon’s general counsel to draft a document entitled “Unanimous Written
Consent of the Board of Directors of SPG‑FCM Ventures, LLC to Action
Without a Meeting” (the consent). In
addition to serving as the custodian of records for Simon, SPG‑FCM, and
Simon’s subsidiaries, Reinholt’s job duties included preparing organizational
and closing documents, minutes, resolutions, and other documentation pertaining
to board meetings.

Reinholt prepared the
consent and forwarded it to each of Simon’s directors and to Farallon Capital
Management’s directors for signature.
The consent was executed by the directors effective March 27,
2008.

The consent states in
part:

“The undersigned, being
all of the members of the Board of Directors (the ‘Directors’ of SPG‑FCM
Ventures, LLC, a Delaware limited liability company (the ‘Company’, hereby consent
to the following action to be taken without a meeting and direct that this
Consent be filed with the minutes of the proceedings of the Company:

“WHEREAS, the Company is (i) the successor in interest to The
Mills Corporation (‘TM[]C’ and
(ii) the sole member [of] TMLP GP, LLC, a Delaware limited liability
company (‘GP LLC’, which is the sole general partner of The Mills
Limited Partnership, a Delaware limited partnership (the ‘Operating Partnership’;

“WHEREAS, effective October 25, 2006, the Board of Directors of
TMC established The Mills Corporation Severance Plan (as amended from time to
time, the ‘General Plan’; and [¶] . . . [¶]

“NOW, THEREFORE, IT IS:

“RESOLVED, that the Board deems it necessary, appropriate and
advisable and in the best interests of the Company, for itself and (i) as
the successor in interest to TMC and (ii) as the sole member of GP LLC,
for itself and as the sole general partner of the Operating Partnership to (a) terminate
the General Plan effective April 4, 2008, . . . and
(c) enter into such other documents as may be necessary and appropriate to
accomplish the matters stated above with such changes, deletions, additions or
modifications thereto as may be deemed necessary, appropriate or advisable by
any one of the President, any Vice President, the Secretary or any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the GP LLC (the ‘>Authorized
Officers’.”

Kravitz,
who worked for Simon as senior vice‑president, human resources and
corporate operations, testified that on April 28, 2008, he sent a
memorandum to all former Mills’s employees, which stated: “Please note that, The Mills Corporation
Severance Plan is being terminated. In
the event of a Qualified Termination of employment, as defined by the plan,
benefits under The Mills Corporation Severance Plan will continue for ninety
days from the date of this notice.”
Andros admitted receiving the memorandum. Neither the Mills Severance Plan nor the
consent required that any further notice be given or action be taken to effect
the termination of the Mills Severance Plan.
Andros continued working for Simon until she was laid off in December
2008.

In the statement of
decision, the trial court found Andros was not entitled to severance under the
Mills Severance Plan for the following reasons:
“Mills’ Severance Plan provided that Simon could terminate Mills’
Severance Plan with 90 days[’] notice and with board approval. . . .
Simon sent Plaintiff and all former Mills’ employees working at Simon notice on
April 28, 2008 that Mills’ Severance Plan was being terminated 90 days
from that date. . . . Prior to sending this notice out to all former
Mills’ employees, the Board of Directors of SPG‑FCM Ventures, LLC passed
a board resolution terminating the Mills Severance Plan. . . . The
Mills’ Severance Plan was terminated.
Plaintiff was not eligible for severance under Mills’ Severance Plan. After Mills’ Severance Plan was terminated,
Plaintiff continued to work for Simon and did not resign.” The evidence, described ante, was sufficient to support the trial court’s findings.

D.

>Substantial Evidence Showed Andros Was Not
Entitled to Receive Severance Pay Under Simon’s Severance Pay Policy.

Andros argues Simon’s
employee handbook established Simon’s contractual obligation to provide her
severance when she was laid off. Andros
asserts insufficient evidence supported the trial court’s finding Simon did not
breach a contractual obligation to pay Andros $31,692.30 in severance under its
policy. Andros’s argument is without
merit.

Page 28 of Simon’s
employee handbook states that under certain circumstances, an employee will be
offered severance pay upon the termination of that employee’s employment with
Simon. Page 28 also states: “Employees are required to sign a waiver and
release agreement, in a form that is acceptable to the Company, as a condition
of receiving severance pay.”

Kravitz testified that
Andros was offered a severance agreement, but she did not accept it. (A copy of the separation agreement and
general release that was offered to Andros was admitted into evidence as trial
exhibit No. 46.) Andros admitted at
trial that when she was notified of her layoff, Simon offered her a severance
agreement, but she did not sign the paperwork.
Andros testified as follows:

“Q. At the time you were notified you were being
laid off, Simon offered you severance; correct‌

“A. Yes.

“Q. And you didn’t say during your termination
time that I’m supposed to get severance under The Mills plan, not under the
Simon plan, did you‌

“A. No.

“Q. And you turned down the Simon severance
offer; correct‌

“A. No, I just didn’t sign the paperwork.

“Q. You didn’t accept it‌

“A. I did not receive a check, no.

“Q. Well, you didn’t accept the severance from
Simon, did you‌

“A. I didn’t receive any severance from Simon.

“Q. You were given a plan; correct‌

“A. Correct.

“Q. Did that plan require that you sign the plan‌

“A. Yes.

“Q. Did you sign it‌

“A. No.”

In the statement of
decision, the trial court stated, “Plaintiff was also offered severance at
Simon when she was laid off. (Exhibit
46). The amount of severance offered to
Plaintiff was based upon her employment with Simon, not Mills. Plaintiff proffered no testimony that the
amount offered by Simon was miscalculated.
Plaintiff testified that she refused the severance, choosing instead to
pursue this litigation.” The evidence,
described ante, was sufficient to
support those findings.

In her opening brief,
Andros argues defendants “attempted to require Andros to sign a general release
in order to obtain a much smaller severance payment under the Simon Severance
Plan. But that ‘requirement’ was part of
a Simon employee handbook that Andros never received.” Andros apparently argues that she is
contractually entitled to the severance pay provided in Simon’s employee
handbook without having to satisfy the express condition she sign a general
release, because she never received a copy of the employee handbook. Andros’s argument borders on the
frivolous. It is evident Andros made the
strategic decision to forego severance pay pursuant to the severance pay policy
contained in Simon’s employee handbook to preserve her right to sue defendants
for, inter alia, additional commissions and severance pay under the Mills
Commission Plan and the Mills Severance Plan, respectively. We find no error.

II.

We Affirm the Trial Court’s Prevailing Party Attorney Fees Award.

Andros also appealed
from the postjudgment order awarding $262,333.44 in attorney fees to
defendants. Andros asserts she “does not
contest the amount of fees that the
trial court awarded. However, if the
judgment is reversed, defendants would no longer be the prevailing parties and
the order awarding attorneys’ fees must be reversed as well.” For the reasons explained >ante, we affirm the judgment in its
entirety. We therefore also affirm the
postjudgment order awarding attorney fees.



DISPOSITION

The judgment and
postjudgment order are affirmed. Respondents
shall recover costs on appeal.







FYBEL,
J.



WE CONCUR:







BEDSWORTH,
ACTING P. J.







IKOLA, J.