Filed 1/29/18 Wieder v. Lee CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In 2006, David James Wieder entered into an agreement to acquire business assets from Andrew Lee. A portion of the purchase price was paid through a promissory note calling for monthly payments over a term of 11 years. In 2013, Wieder stopped making payments on the note and filed suit against Lee in Sonoma County Superior Court, alleging Lee had violated the agreement.^[1] Lee cross-complained, alleging default on the note and seeking acceleration of the remaining principal and interest due. A jury returned special verdicts finding neither party performed significant obligations required under their contract and denied relief to both parties. The trial court granted in part Lee’s motion for judgment notwithstanding the verdict (JNOV), holding the amounts then outstanding on the note remained due.

Wieder appeals from the partial grant of Lee’s JNOV motion, and Lee cross-appeals, asserting errors in the admission of evidence against him at trial. We affirm in all respects.

I. Background and Procedural History

In 2006, Lee and Wieder entered into an agreement to purchase Hayward Ace Hardware, a business located at 808 B Street in Hayward, California (Agreement). The Agreement provided for $317,500.00 of the purchase price to be paid through a promissory note calling for monthly payments over a term of 132 months.[2] Pursuant to the Agreement, all assets of the business were transferred to Wieder, including inventory, goodwill, equipment, fixtures, and the trade name of Hayward Ace Hardware. The terms included a covenant by Lee not to compete.

After the sale, Lee continued to maintain a limited liability company, Hayward Ace Hardware, LLC (LLC), with its registered address at the location of Hayward Ace Hardware. In 2013, the California Franchise Tax Board (FTB) sent Wieder demands that he file back tax returns for the LLC, and claiming taxes, penalties and interest were due.

On October 1, 2013, Wieder stopped making payments on the note. He then filed suit in the Sonoma County Superior Court, alleging breach of contract, breach of the covenant of good faith and fair dealing, and unfair competition. The complaint sought compensatory and punitive damages, as well as injunctive relief. Wieder’s claims in each cause of action were based on allegations that Lee continued to use the trade name of Hayward Ace Hardware through the LLC, on an account with Pacific Gas & Electric Company (PG&E), and on applications for credit, despite demands that he cease doing so. Lee cross-complained, alleging default on the note and seeking acceleration of the balance then due ($130,510.39).

A jury trial commenced on February 2, 2016, before the Honorable Renee Chouteau. Evidence at trial indicated Lee formed the LLC on September 9, 2005, but its registration was not cancelled until September 9, 2013. The address listed for the LLC was 808 B Street, Hayward, California—the address for Hayward Ace Hardware. Lee testified he had forgotten about the LLC until alerted to its existence by Wieder in August 2013, and that he then cancelled the LLC’s registration.

In 2013, the FTB sent correspondence to Wieder, addressed to “Hayward Ace Hardware, LLC, Jim Wieder, Owner,” making demand for the filing of back tax returns for the LLC, and threatening penalties. Wieder called Tyrone Gregory, a field collector for the FTB, as a witness. Based on a personal representation from Wieder that he was “affiliated” with the LLC, Gregory apparently prepared an estimated tax computation for the LLC.[3] On cross-examination, Gregory testified the FTB had made no determination as to the LLC’s ownership or liability for the taxes, the LCC account had a “zero balance” until a tax liability was actually determined, and no efforts had been undertaken to collect any amount from Wieder. Wieder testified that the “pending tax bill” interfered with attempts to sell the hardware store and made the business’s goodwill “worthless.” He offered no other evidence in support of this claim.

Wieder also introduced evidence of 2007 correspondence from an entity identified as “RoadLoans” directed to “Jim Wieder,” apparently related to a denied automobile purchase loan application. Wieder testified that he had made no such loan application, an e-mail address used on communications concerning the loan (haywardace@yahoo.com) was used by Lee without Wieder’s permission, and that he believed Lee’s social security number was on the application. Wieder produced no other evidence that Lee was the applicant. Wieder introduced a letter from PG&E addressed to Lee at the Ace Hardware store location, concerning eligibility for an income-qualified rate discount on a residential utility bill.

Lee’s bookkeeper, Stephanie Shell, testified as to computation of the payments and amounts due on the note, the absence of payments after September 2013, and an outstanding balance of $130,508.85 at the end of 2013.[4]

At the close of evidence, Lee moved for nonsuit, arguing there was no evidence that Lee actually used the Hayward Ace Hardware trade name in commerce. The court denied the motion, finding the issue of whether Lee was “using the LLC” was an “open question” sufficient to go to the jury.

The case was submitted to the jury on February 5, 2016. In rather short order (approximately two hours), the jury returned unanimous special verdicts on both Wieder’s complaint (breach of contract and unfair competition causes of action) and Lee’s cross-complaint. On Wieder’s breach of contract claim, the jury found there was a contract between the parties (question No. 1), but in answer to predicate question No. 2 (“Did [Wieder], do all, or substantially all, of the significant things that the contract required it [sic] to do?”), the jurors answered “No.” On Wieder’s claim for unfair competition, the jury found that Lee had not engaged in any unlawful, fraudulent or unfair business practices. Based on those answers, the verdict forms instructed the jurors not to address any other issues. The verdict form on Lee’s cross-complaint similarly found that Lee had failed to do “all, or substantially all, of the significant things that the contract required it [sic] to do,” and the jury addressed no other issues.

Lee filed a motion for a new trial, or alternatively, for additur or JNOV. The court denied the motions for new trial and additur, but partially granted the motion for JNOV. In granting partial JNOV, the court found that, while the prior payment deficiencies may have been justified by Lee’s actions and acceleration of the note precluded, the debt was not extinguished. The court ordered release to Lee of approximately $38,000 in loan payments deposited by Wieder with the court, and ordered Lee to advise the FTB that Wieder had no interest in the LLC. The court further found there was no prevailing party in the action and declined to award attorney fees to either party. When asked about future payments on the note, the court presciently observed that if payments were not made “there will be another lawsuit I guess.”[5]

Wieder moved for costs of proof sanctions on the basis that Lee had denied requests for admission on facts later proven to be true at time of trial.[6] (Code Civ. Proc., § 2033.420.) The court granted the motion, specifically based on denials regarding the organization and maintenance of the LLC. The court awarded Wieder $3,225.35 in costs and $13,440.00 in attorney fees.

The court entered a final judgment on November 9, 2016. Wieder filed a timely notice of appeal on December 27, 2016. Lee filed a timely notice of cross-appeal on January 23, 2017. Wieder appeals the grant of partial JNOV. Lee contends the court prejudicially erred in several of its evidentiary rulings and in denying his motions in limine. Lee also challenges the sufficiency of the evidence to support a finding he breached the Agreement.

II. Discussion

A. Lee’s Cross-Appeal

1. Admissibility of Evidence

We first address Lee’s cross-appeal since it challenges the admissibility of significant portions of the evidence at trial. “ ‘[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ ” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) We do not overturn an evidentiary ruling unless “ ‘the trial court exceeded the bounds of reason, all of the circumstances being considered.’ ” (Public Employees’ Retirement System v. Moody’s Investor Services, Inc. (2014) 226 Cal.App.4th 643, 683.) “Under this standard, the trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168.) “In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692; Evid. Code, § 353, subd. (b).) We find no prejudicial error.

Lee contends the trial court abused its discretion in admitting evidence concerning the LLC: evidence of third-party solicitations in Lee’s name received by Wieder at the business address for Hayward Ace Hardware; information regarding the LLC tax liabilities; and evidence of the LLC’s existence, absent evidence of active LLC operations. Pretrial, Lee moved in limine to exclude this evidence. Lee argued some of the evidence predated the four-year statute of limitations for breach of contract; some evidence predated a 2007 settlement agreement of an earlier dispute between the parties providing for a release of claims or was irrelevant to the issues presented by Wieder’s causes of action; and certain information concerning potential LLC tax liabilities was obtained through misconduct of Wieder or his counsel. The court (Hon. Gary Nadler) granted some motions in part, and denied others. As noted ante, the court admitted evidence of the formation and continued existence of the LLC, the auto loan application, and the PG&E mailing. The court also permitted testimony by Wieder concerning an AT&T voicemail account, which Wieder claimed Lee had set up in the name of “Susan Fuke” in November 2006, and for which he received a bill.

We review none of Judge Nadler’s pretrial rulings, to either admit or exclude evidence, since Lee has provided an inadequate record. The in limine motions were argued and initially decided at hearings on May 26 and 27, 2015. No reporter’s transcripts of those hearings are provided, and we have only minute orders summarizing the rulings. Although this is permissible (Cal. Rules of Court, rule 8.124), the burden remained on Lee to produce an adequate record demonstrating the trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575; Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “The [appellant] must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court.” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712, disapproved on other grounds as stated in Jackson v. Cedars-Sinai Medical Center (1990) 220 Cal.App.3d 1315, 1322.) Without a record of the trial court’s reasoning, it is impossible for us to conclude that Judge Nadler abused his discretion.

At least some of the evidentiary objections were raised again in a pretrial hearing before Judge Chouteau. In arguing the court erred in admission of the disputed evidence, Lee cites little of the colloquy regarding the motions, and only some of the court’s rulings. “It is the duty of counsel to refer us to the portion of the record supporting his contentions on appeal.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738; see People v. Hyatt (1971) 18 Cal.App.3d 618, 624 [where brief fails to specify portions of record supporting appellant’s factual assertions, record is presumed to support trial court’s rulings].) The exception was with regard to rulings on evidence of LLC tax liabilities. The court excluded evidence obtained through misrepresentations of Wieder’s counsel to the FTB, but allowed the evidence of direct communications between Wieder and the FTB, as previously described. Judge Chouteau otherwise only confirmed Judge Nadler’s prior ruling on this issue. Although Lee argues this evidence was impeached at trial, he fails to articulate why it was not relevant to Wieder’s damage claims, and we find no abuse of discretion. Absent adequate citation to the record, any argument that Judge Chouteau erred in other respects of his pretrial evidentiary rulings is forfeited. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 [the reviewing court is “not required to make an independent search of the record and may disregard any claims when no reference is furnished”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [if no citation is furnished on a particular point, the court may treat it as waived].)

In only a few instances does Lee even cite his later trial objections to admission of evidence. For example, Lee alleges he objected to evidence concerning the existence of the LLC, but references only his motions in limine. He contends that his “motions to limit testimony about the existence of the LLC were denied,” but he admits the denial “was not on the record.” Lee notes his hearsay and foundation objections to Wieder’s testimony concerning the AT&T voicemail account, and alleges he made “repeated hearsay and foundation objections to evidence of the automobile loan application,” although he only cites generally to the subject matter testimony. To the extent Lee has preserved his objections to evidence of the voicemail account and the auto loan application, he fails to establish an abuse of discretion by the trial court. Even assuming the trial court erred in admitting these two pieces of evidence, Lee fails to meet his burden of establishing prejudice.

A judgment of the trial court may not be reversed on the basis of the erroneous admission of evidence, unless that error was prejudicial. (Code Civ. Proc., § 475.) The record must show the appellant “sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Ibid.; see Evid. Code, § 353, subd. (b) [no reversal “by reason of the erroneous admission of evidence unless . . . [¶] . . . [¶] . . . the error or errors complained of resulted in a miscarriage of justice”].) In determining if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error, “ ‘we are not to look to the particular ruling complained of in isolation, but rather must consider the full record in deciding whether a judgment should be set aside.’ [Citation.] The appellant bears the burden of establishing that the error was prejudicial.” (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.)

The focus of Wieder’s closing argument was that Lee had violated the Agreement, and particularly the covenant not to compete, by maintaining the LLC using the tradename of Hayward Ace Hardware, and that Wieder had been damaged, primarily by the threat of personal tax liability for the LLC. Lee presents no viable challenge to the evidence presented on those issues. We find no showing of a miscarriage of justice in this matter and no reasonable probability that the jury would have reached a different verdict had the evidence not been presented.

2. Substantial Evidence

Lee also contends that the adverse verdict on his cross-complaint was not supported by substantial evidence. Much of his argument is premised on the admissibility, or lack of admissibility, of the evidence—issues we have already addressed.

Lee notes the gravamen of Wieder’s complaint was that Lee had misused the “Hayward Ace Hardware” trade name. Lee points to the instruction given to the jury that to establish this claim, Wieder was required to prove (1) Lee used the Hayward Ace Hardware trade name at any time within the four-year period prior to filing the action; (2) Lee’s use of the Hayward Ace Hardware trade name was in a public manner that others may have been aware of; and (3) there was a reasonable likelihood that others would be confused by Lee’s use of the name. The undisputed evidence established that Lee continued to maintain the LLC for years after the sale of the Hayward Ace Hardware business. Lee argues this evidence was insufficient to establish “use” of the trade name, and assuming a breach on this basis, it had in any event been cured as of the time of trial. Lee’s argument fails to appreciate that the jury never returned a verdict against him on any cause of action stated in the complaint. We need not evaluate the sufficiency of evidence to support verdicts not rendered, and the verdict on Lee’s cross-complaint reached only the predicate question of whether Lee had performed his obligations under the Agreement. The jury could find, and in the trial court’s view did find, that Lee’s maintenance of the LLC long after the sale of the business was in itself a violation of his obligations under the Agreement. Having answered that single question, the jurors went no further. To the extent Lee complains the evidence is insufficient to sustain a finding that he is in total, rather than partial, breach of the Agreement, we would agree, as discussed post. But in our view, the special verdict made no finding of a total breach excusing further performance by Wieder, and the JNOV as entered by the court decides otherwise.

B. Wieder’s Appeal

Wieder challenges the partial grant of Lee’s JNOV motion, arguing the trial court failed to apply the correct legal standard. We disagree.

A JNOV motion (Code Civ. Proc., § 629) challenges whether the opposing party’s evidence was sufficient to prove the claims or defenses asserted. Its purpose is to avoid the necessity of the moving party having further exposure to liability where there is insufficient evidence for an adverse verdict. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc., supra, 225 Cal.App.4th at p. 794.) A court may grant JNOV as to less than all issues. (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) “A motion for [JNOV] may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

The standards in reviewing a ruling on a motion for JNOV are well established. “ ‘The trial court’s discretion in granting a [JNOV] is severely limited.’ [Citation.] ‘ “The trial judge’s power to grant a [JNOV] is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for [JNOV] should be denied. [Citations.] ‘A motion for [JNOV regarding the] verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support 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.’ [Citation.]” ’ [Citation.] The trial court cannot consider witness credibility. [Citation.] [¶] On review of an order granting JNOV, we ‘ “must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury’s verdict.” ’ ” (Hansen v. Sunnyside Products, Inc., supra, 55 Cal.App.4th at p. 1510.) Wieder argues the partial grant of JNOV must be set aside, and judgment entered in accordance with the verdicts.

We first consider whether the verdicts rendered in this case were sufficient to have permitted entry of judgment for or against either party in this action. “A JNOV motion does not lie unless ‘a verdict has been rendered.’ [(Code Civ. Proc., § 629, subd. (a).)] [¶] This assumes a clear and unambiguous verdict. A motion for JNOV will not be granted if the verdict is so incomprehensible, contradictory or unintelligible that the jury’s intent cannot be ascertained.” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2016) ¶ 18-68, p. 18-17.) If the verdicts “are inconsistent and, when considered together, the intent of the jury is not ascertainable, there is no verdict upon which the court could have entertained [the] motion for [JNOV].” (Mish v. Brockus (1950) 97 Cal.App.2d 770, 776.) Lee, in his respondent’s brief, asserts the verdict forms were fatally defective and ambiguous.[7] The immediate problem with Lee’s argument is that he raised no such issue in his own appeal, and he directs us to no contemporaneous objection made to the jury verdict forms (or instructions), nor to the verdicts at the time entered and before the jury was discharged. In fact, it appears from the record that the verdict forms Lee complains of were jointly submitted by the parties. Lee further conceded in his motion for new trial, and at hearing on the motion, that he made no objection to the special verdict form. To preserve an appellate challenge to the form of verdict, the objection must be presented to the trial court so that the court could address the issue prior to the discharge of the jury or else the objection is deemed waived. (Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 301 [“ ‘failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected’ ”]; Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6.) While we might well find some merit in this issue had it been properly preserved and presented by either party, we do not address it further.

Wieder suggests the trial court necessarily found substantial evidence to support the verdict on the cross-complaint in denying Lee’s motion for nonsuit (Code Civ. Proc., § 581c, subd. (a)). Not so.

Wieder is correct that a court’s power to grant a nonsuit or to direct a verdict, and the power to grant a motion for JNOV, are merely different aspects of the same judicial function and are governed by the same rules. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327.) But denial of a nonsuit motion does not preclude the trial court from revisiting its prior ruling after a verdict is returned, and Wieder presents no authority that the court is somehow barred from doing so by virtue of its prior ruling. (See Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 417, disapproved in other respects by Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.)[8] In fact, courts are encouraged to deny a motion for a nonsuit if there is “any possibility that the evidence might support recovery in favor of, and in reliance upon, the power to direct a verdict after hearing the evidence. [Citation.] And on a motion for a directed verdict, courts are often encouraged, for purposes of judicial economy, to deny the motion in favor of, and once again in reliance upon, the power to grant [JNOV] after the jury’s deliberations.” (Beaver, at p. 328.) As the court noted in Beavers, “n the event an appellate court should disagree with the trial court’s view of the legal sufficiency of the evidence, the reversal of the [JNOV] can result in the reinstatement of the jury verdict. This avoids the necessity of a time consuming and costly retrial and potential second appeal, as would be required where a nonsuit or directed verdict is reversed.” ([i]Id. at p. 328, fn. 6)

Wieder makes a similar contention that the court, in granting his posttrial motion for cost of proof sanctions, also expressly found that there was sufficient evidence to support the verdict. He cites the court’s statement in its order after hearing that: “In short, [Lee] admitted he formed the LLC bearing the trade name and did not cancel it until years after the sale in violation of the parties’ agreement. This was the basis for the jury finding [Lee] had failed to perform under the contract.” But the court, in granting monetary sanctions, did not decide the sufficiency of Wieder’s trial evidence.

A party who denies a request for admission of the truth of certain facts may be subject to an award of the reasonable costs and attorney fees incurred in proving those facts. (Code Civ. Proc., § 2033.420, subd. (a).) The court is required to award those costs and fees unless it finds the party who denied the requests “had reasonable ground to believe [he or she] would prevail on the matter” or “[t]here was other good reason for the failure to admit.” (Id., § 2033.420, subd. (b)(3), (4).) If there is no reasonable basis to deny the requests, an award is proper. (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 532.)

The court’s ruling on the motion determined only that Lee had denied, without substantial justification, requests for admissions concerning the formation and maintenance of the LLC. The court’s view, expressed its tentative opinion, in colloquy at the motion hearing, and stated in its written order after hearing, was that the duration of the LLC and Lee’s failure to cancel the registration were the issues of substantial importance in the trial—and the basis for the verdict against Lee—entitling Wieder to his costs of proof.

We find nothing in this expression of the trial court’s view of the evidence that is inconsistent with either denial of the earlier motion for nonsuit, or grant of the request for sanctions. The court’s view is, in fact, entirely consistent with its denial of the motion for new trial, and grant of partial JNOV. The court found the evidence supported the jury’s implicit determination that Lee had breached the Agreement by maintaining the LLC, and therefore had not done all things required of him by the Agreement. Wieder overlooks the fact that the same jury also found he had failed to perform his own contractual obligations, and the only default alleged or proven was his failure to make payments required on the note. “ ‘A breach of contract may be total or partial. If the breach is total, the injured party has the right to terminate the contract. If the breach is partial, there is no right to terminate. [¶] . . . [¶] Any breach of contract, whether total or partial, causing measurable injury, gives rise to a claim for damages.’ ” (Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1134.) “The important question, however, is whether a particular breach will also give the injured party the right to refuse further performance on his or her own part, i.e., to terminate the contract. The test is whether the breach is material, and a total or complete breach is of course material and grounds for termination by the injured party.” (1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 877, p. 923.)

The jury was not asked to reach, and did not reach, the issue of whether the mutual failures to perform resulted in any injury or damages to either party. Contrary to Wieder’s suggestion, the jury found only a breach of the terms of the Agreement by both parties (in failure to do “all, or substantially all of the significant things that the contract required”), and made no express determination of whether the breach in either case was total or partial. When, as here, no objection is made that a special verdict is ambiguous or incomplete before the jury is discharged, the trial court may draw legal conclusions from the facts found by special verdict, and, unless the findings are “hopelessly ambiguous,” the court may interpret the verdict in view of the pleadings, evidence and instructions. (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456–457; Code Civ. Proc., § 624.) We review any such interpretation de novo. (Woodcock, at pp. 456–457.) In ruling on the JNOV motion, the trial court necessarily found the evidence established only a partial breach by Lee, not one that would justify termination of the Agreement. We agree. No substantial evidence was presented that Wieder suffered any actual damage or loss from Lee’s breach, or that Wieder was deprived of the benefits of the contract such that his future performance of his payment obligation was forever excused. The jury’s finding of a contractual breach by Lee must be viewed in the context of its determination that Wieder also breached the Agreement by failure to pay—a determination inconsistent with excuse of performance. As the court observed, the jury’s adverse finding on a single issue in Lee’s cross-complaint “does not mean that the debt is extinguished.”

III. Disposition

The judgment is affirmed as entered. Each party shall bear their own costs on appeal.

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BRUINIERS, J.

WE CONCUR:

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JONES, P. J.

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NEEDHAM, J.