Filed 5/22/13 Starpoint USA v. Daewoo Motor CA2/7 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

STARPOINT USA, INC. 

 Cross-Complainant and Appellant, 

 v. 

DAEWOO MOTOR COMPANY, LTD. 

 Cross-Defendant and Respondent. 

 No. B234891 

 (Los Angeles County 

 Super. Ct. No. TC017448) 

APPEAL from a judgment of the Superior Court of Los Angeles County, Cesar C. 

Sarmiento, Judge. Reversed and remanded for further proceedings. 

 Duane Morris, William J. Baron, Colleen A. Cassidy and Cyndie M. Chang for 

Cross-Complainant and Appellant. 

 Lee, Hong, Degerman, Kang & Waimey, Larry R. Schmadeka, Eric D. Olson and 

Nilam J. Patel for Cross-Defendant and Respondent. 

__________________________ 
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INTRODUCTION 

 Starpoint USA filed a breach of contract action alleging that Daewoo Motor 

Company was required to reimburse legal fees incurred in enforcing two indemnity 

agreements. Prior to trial, the court ruled that Starpoint could introduce extrinsic 

evidence to aid in the interpretation of the agreements. The jury reached a verdict finding 

that the parties intended the agreements to require Daewoo to reimburse Starpoint’s 

claimed costs. 

 Daewoo filed a motion for new trial and a motion for judgment notwithstanding 

the verdict arguing that: (1) Starpoint had failed to introduce any competent extrinsic 

evidence in support of its interpretation of the agreement; (2) under the plain language of 

the agreement, Starpoint was not entitled to attorney’s fees incurred in an action to 

enforce the agreement. The trial court granted both motions. We reverse the court’s 

order granting judgment notwithstanding the verdict and affirm its order granting a new 

trial. 

FACTUAL AND PROCEDURAL BACKGROUND 

A. Starpoint’s Complaint 

 In 1997, Daewoo Motor Company (Daewoo) established Daewoo Motor America 

(DMA) to distribute Daewoo vehicles in the United States. On April 11, 2000, Daewoo 

and DMA included a written indemnity agreement in an audit letter which stated: 

“[Daewoo] has agreed to reimburse [DMA] for all product liability expenses, including 

fees and disbursements to legal counsel, experts, judgments, settlement amounts not 

covered by the insurance policies, and all other costs normally associated with the 

defense of product liability litigation relating to vehicles and parts purchased by DMA 

from [Daewoo].” DMA’s accountant, KPMG, prepared the audit letter, which was then 

signed by Daewoo. 

 In April of 2003, KPMG prepared a second audit letter stating, in relevant part: 

““[Daewoo] has agreed to indemnify and hold harmless [DMA] from any claim, demand, 
3

or legal proceedings (including legal fees, costs and expenses related thereto) involving 

allegations of . . . bodily injury, or property damage allegedly caused by a defect in 

design, manufacture or assembly of [Daewoo] products or components thereof.” Daewoo 

signed the letter on April 18, 2003.

 Shortly thereafter, Michelle Bandy was injured while driving a Daewoo vehicle 

and filed a product liability action against Daewoo and DMA’s successor in interest, 

Starpoint USA. Starpoint filed a cross-complaint alleging that that the audit letter 

agreements required Daewoo to indemnify all costs related to the Bandy Action. In June 

of 2005, Daewoo settled the Bandy action on behalf of all parties in the chain of 

distribution, including Starpoint. 

 Starpoint, however, proceeded with its cross-complaint, asserting that Daewoo had 

breached the 2000 and 2003 letter agreements by failing to reimburse: (1) legal expenses 

Starpoint incurred in the Bandy action prior to settlement; and (2) legal expenses 

Starpoint incurred in enforcing the indemnity provisions against Daewoo. Starpoint also 

alleged that Daewoo’s actions constituted a breach of the implied covenant of good faith 

and fair dealing. 

 During pretrial proceedings, the parties disputed the meaning of the letter 

agreements and whether extrinsic evidence was necessary to aid in their interpretation. 

Starpoint asserted that language in the agreements requiring Daewoo to indemnify “all 

legal costs” related to a product liability claim necessarily included attorney’s fees 

incurred in enforcing Starpoint’s underlying indemnity rights. Alternatively, Starpoint 

argued that the court “should at least find that there is an ambiguity” as to whether the 

agreements were intended to require reimbursement of enforcement costs and “admit 

extrinsic evidence to clarify the ambiguity.” It further contended that the court should 

“permit the jury” to resolve the ambiguity. 

 Daewoo, however, argued that “the unequivocal language of the Audit Letters” 

precluded Starpoint from recovering “attorneys fees and costs incurred in the prosecution 

of its indemnity claims.” Daewoo further argued that, to the extent any “uncertainties or 

ambiguity existe[d],” Starpoint had failed to identify any extrinsic evidence “of any intent 
4

or formation that would assist in determining the meaning of the purported terms in the 

Audit Letters . . . . As such, the Court must look [only] at the four corners of the 

document.” 

 At a pretrial hearing, the court ruled that “there [was] ambiguity” as to whether the 

agreements required Daewoo to reimburse enforcement costs and that a jury should 

resolve the issue: “I think there is extrinsic evidence necessary to what is the intent of the 

parties on this issue regarding indemnity and attorneys fees. So I think that is what this 

trial is about, and that’s where we have the disagreement. That’s where the ambiguity 

begins.” 

B. Trial and Verdict 

1. Witness testimony 

 At trial, Starpoint called two witnesses who provided testimony regarding the 

intended meaning of the letter agreements: Yeong Soo Hong, who was Starpoint’s 

president and former chief financial officer, and Agnes Cha, who served as an in-house 

attorney. 

 On direct examination, Hong testified that the audit letters were intended to 

confirm that Starpoint did not need to set aside reserves for product liability exposure in 

their annual financial statements. Hong alleged that he directed Starpoint’s accountant, 

KPMG, to draft the letters in a manner that would require Daewoo to reimburse all costs 

incurred in either defending a product liability action or enforcing the terms of the 

agreements. Hong further stated that, after KPMG drafted the letters, he sent them to 

Daewoo for signature. 

 On cross-examination, defense counsel asked Hong whether he had any 

conversations with Daewoo regarding the meaning of the letters: 

COUNSEL: You did not have any discussions with [Daewoo] regarding this 

letter other than to sign it, is that right? 

HONG: As you can see, the letter is more than ten years old. When such a 

letter was sent, we did have a mutual understanding about the product liability as 
5

to who is responsible, so the party who is sending and the party who is receiving 

has sufficient understanding as to the liability. 

COUNSEL: Motion to strike, your honor. 

COURT: Hold on. Overruled. Ask your next question, please. 

COUNSEL: What I am asking you is, when this was sent to [Daewoo] in Korea, 

did you pick up the phone and talk to someone at [Daewoo] about the terms in the 

letter? 

HONG: Like I said, when I was sending the letter, I told them that, ‘A letter 

is being sent to you.’ But I don’t remember as to whether or not I discussed 

content of this letter with someone else. 

COUNSEL: The best of your recollection, you only told them it was coming, 

‘Please sign it and return it’? 

HONG: I just told you that I cannot quite recall. 

Hong also reiterated his view that the letter agreements were intended to include 

reimbursement of expenses incurred in both “defending” any product liability claim and 

“in making demands or prosecuting the claim if [Daewoo] didn’t pay it.” In response to 

this assertion, defense counsel asked Hong why he believed the text of the agreements 

required reimbursement of enforcement costs. Hong provided three reasons. First, he 

said it was “common sense” that the manufacturer would “pay the product liability 100 

percent.” Second, he asserted that if Starpoint did not believe it was entitled to costs 

incurred in enforcing the agreement, KPMG would have “mandated” that the company 

list “a reserve asset for that” in the annual financial statements. Third, Hong stated that 

the agreements referenced “‘all other costs normally associated with the defense of a 

product liability litigation.’” 

 At the conclusion of the cross-examination, defense counsel inquired again as to 

whether Hong had any “conversation with . . . Daewoo” regarding the “meaning or 

interpretation” of the language in the audit letters. Hong responded: “Since this is the 
6

common understanding as to the content of this letter, I don’t have any recollection 

speaking.” 

 On re-direct examination, Starpoint’s attorney asked Hong to clarify his prior 

statements regarding his communications with Daewoo: 

STARPOINT COUNSEL: [Defense counsel] asked you whether you had a 

specific conversation about these letter agreements with someone at [Daewoo], 

and I believe your response was that you did not have a specific conversation 

about the letter agreements with [Daewoo] when you were sending this letter 

because you had conversations prior to the time you sent the letters, correct? 

DAEWOO COUNSEL: Objection. Leading, 

THE COURT: Overruled. You can answer. 

HONG: Yes, that is correct. 

STARPOINT COUNSEL: And the bottom line is that [Daewoo] . . . agreed to 

reimburse you a hundred percent relating to product liability expenses. 

HONG: Yes, that is correct. 

STARPOINT COUNSEL: Including legal fees for defending and including legal 

fees for going after them if they don’t pay? 

HONG: Correct. It would include all the expenses. 

 Finally, on re-cross examination, defense counsel asked Hong: “Is it your 

testimony that you had a specific conversation with people at [Daewoo] prior to the 

letters in which [Daewoo] specifically said that they would agree to pay you 

reimbursement for expenses, legal expenses, incurred in going after [Daewoo] for 

product liability expenses?” Hong responded: “I told you already that product liability 

responsibility would be borne by the manufacturer a hundred percent, and this is common 

knowledge between the parties, and there is no reason for [Daewoo] not to pay 

[Starpoint] the expenses that were incurred. So when have a conversation between the 

parent company and subsidiary company, you will not list each and every case.” 
7

 Starpoint’s second witness, Agnes Cha, acknowledged on cross-examination that 

the audit letters did not contain any “express language” regarding enforcement costs. She 

also admitted that Starpoint’s predecessor, DMA, had entered into agreements with other 

third parties that did have language “specifically . . . say[ing] that ‘attorney’s fees are 

recoverable in the enforcement of the rights of this agreement.’” 

 On re-direct examination, however, Cha testified that the intent of the letter 

agreements were to ensure that Starpoint recovered “100%” of its product liability costs, 

including any attorney’s fees incurred in enforcing the agreements. She also stated that, 

in the absence of the letter agreements, she “th[ought]” Starpoint would “have to put a 

provision in the financial statement for exposure to legal fees for products liability.” 

 Daewoo did not call any witnesses to rebut the testimony of Hong or Cha. In 

closing argument, however, defense counsel argued that neither audit letter contained “a 

promise to reimburse [Starpoint’s] attorney’s fees should they attempt to enforce this 

agreement.” Counsel also argued that Starpoint could have included such language, as it 

had done in contracts with other parties. Finally, counsel reminded the jury that Hong 

had “no specific recollection of ever talking to [Daewoo]” about the meaning of the letter 

agreements. 

2. Jury verdict 

 In a special verdict form, the jury made the following findings: (1) the letter 

agreements required Daewoo to “pay all legal expenses” that Starpoint incurred in 

defending the Bandy action; (2) the letter agreements required Daewoo to “indemnify 

Starpoint . . . for all attorney’s fees and legal expenses incurred to enforce or prosecute 

the terms of the [agreements]”; (3) Starpoint had substantially complied with all of its 

obligations under the agreements; and (4) Daewoo had “unfairly interfere[d] with 

Starpoint[’s] . . . rights to receive the benefits of the contract.” The jury awarded 

damages to Starpoint of $57,667.28 for its legal expenses in the Bandy action. 

 On September 24, 2010, the court entered a judgment awarding Starpoint 

$57,667.28 for “attorney’s fees and legal expenses in the underlying product liability 
8

action, plus prejudgment interest and post judgment interest.” The judgment further 

stated that the amount of Starpoint’s of recovery for “attorneys’ fees and legal expenses 

incurred to enforce or prosecute the terms of the indemnity letter agreement against 

[Daewoo]” would “be determined at a later hearing . . . by the Court.” 

C. Post-trial motions 

1. Daewoo’s motion for judgment notwithstanding the verdict and motion for 

new trial 

 After the judgment was entered, Daewoo filed a motion for judgment 

notwithstanding the verdict (JNOV motion) and a motion for new trial challenging the 

portion of the verdict finding that it was required to reimburse Starpoint for legal costs 

incurred in enforcing the indemnity agreements. In the JNOV motion, Daewoo argued – 

as it had before trial – that the plain language of the letter agreements “show[ed] 

conclusively, and as a matter of law, that Starpoint had no rights of indemnification as to 

an action to enforce the contract.” Alternatively, Daewoo argued that Starpoint had 

failed to introduce any extrinsic evidence “from which the jury could find that the intent 

of the parties was to extend the indemnity provision language used to indemnifying for 

enforcing the contracts terms.” According to Daewoo, Starpoint’s witnesses had merely 

provided their subjective belief as to the meaning of the agreements, which was 

“irrelevant in determining the reasonable meaning of the words and acts of the parties.” 

Daewoo contended that these same arguments applied to Starpoint’s claim for breach of 

the implied covenant of good faith and fair dealing. 

 Daewoo’s motion for a new trial raised similar arguments, asserting that the trial 

court committed legal error when it permitted Starpoint to introduce parol evidence to aid 

in the interpretation of the agreements. Daewoo also argued that the court should permit 

a new trial because the “[t]he weight of the evidence [wa]s against the finding that the 

audit letters provided for recovery of attorneys fees and costs in an action to enforce their 

provision.” According to Daewoo, Starpoint’s trial evidence was “limited to self-serving 

expressions of [its] own subjective intent at the time of the drafting of the letters by its 
9

own auditors. Starpoint presented no evidence, however, that such intent was ever 

communicated to [Daewoo] and that [Daewoo] had concurred with Starpoint thus 

resulting in a meeting of the minds.” Daewoo argued that these same arguments applied 

to the jury’s finding on the implied covenant claim: “given the insufficiency of the 

evidence to establish that the Audit Letters indemnified Starpoint for an action on the 

contract, it follows that the evidence is insufficient to establish that [Daewoo] deprived 

Starpoint of the supposed benefits of the contract and thus breached the implied covenant 

of good faith and fair dealing.”1

 

 In opposition, Starpoint argued that: (1) the court had already ruled that the letter 

agreements were ambiguous as to whether Daewoo was required to reimburse costs 

incurred to enforce the agreements; and (2) the extrinsic evidence at trial was sufficient to 

support the jury’s finding that the parties intended the agreements to extend to such costs. 

In support of its second point, Starpoint contended that Hong had “offered . . . testimony” 

showing that “both [Daewoo] and Starpoint were fully aware that [Daewoo] would 

indemnify and reimburse all legal expenses relating to litigation involving Daewoo 

automobiles.” The only extrinsic evidence Starpoint cited was testimony in which Hong 

stated that: (1) the parties had a “mutual understanding . . . as to the product liability 

[issue]”; and (2) if Starpoint did not believe the letter agreements required reimbursement 

of enforcement costs, its financial statements would have included a reserve for those 

costs. 

 

1

 Daewoo’s motion also argued that it was entitled to a new trial because the court 

had erred in instructing the jury and by refusing to admit findings and judgments entered 

in a related bankruptcy proceeding. 
10

2. The trial court’s order granting Daewoo’s motions for JNOV and new trial 

 After a hearing, the court entered a written order granting both of Daewoo’s 

motions. The order addressed the motion for new trial first, explaining that Starpoint had 

failed to provide any “competent” extrinsic evidence regarding the intended meaning of 

the letter agreements: “[T]he testimony of Mr. Hong and Ms. Cha is not competent parol 

evidence. Mr. Hong testified that he sent the Letter Agreements to [Daewoo] and asked 

them to sign and return the letters. [Citation.] Mr. Hong did not recall whether there 

were any discussions regarding the terms of the agreement prior to its execution. 

[Citation.] Thus, Mr. Hong’s testimony did not provide any evidence of circumstances 

communicating [Starpoint’s] subjective intent or negotiations between the parties that 

supports [Starpoint’s] interpretation of the agreement. The testimony of Ms. Cha is 

similarly deficient. Ms. Cha was not a party to the negotiations or execution of the Letter 

Agreements, but had merely gained her knowledge from review of the agreements and its 

context. [Citation.] Evidence of the undisclosed subjective intent of the parties is 

irrelevant to determining the meaning of contractual language. [Citation.] Thus, 

[Starpoint] did not produce any competent parol evidence that supports its interpretation 

that the Letter Agreements were intended to include attorney’s fee in an action to enforce 

the contract. Interpretation of the Letter Agreements is therefore a matter of law.” 

 The court further concluded that, because Starpoint failed to introduce any 

competent extrinsic evidence, it was required to interpret the letter agreements based 

solely on their language. The court noted that, under the relevant case law, “an 

indemnitee [ordinarily] may not recovery [sic] attorney’s fees incurred to enforce the 

indemnity agreement unless the indemnity agreement expressly or impliedly provides for 

an award of such fees. It is also the general rule that the inclusion of attorney fees as an 

item of loss in a third-party claim-indemnity provision does not constitute a provision for 

the award of attorney fees in an action to enforce the indemnity contract. [Citation.]” 

 The court ruled that, here, the parties’ letter agreements did not contain any 

language “indicat[ing] an intent to award attorney’s fees in an action to enforce the 

agreement. Rather, the Audit Letters merely state the obligation of [Daewoo] to 
11

indemnify [Daewoo] for third-party products liability claims and breach of warranty 

claims. Moreover, neither Letter Agreement even makes any reference to the 

consequences of an action to enforce the contract. Thus, attorneys fees for enforcement 

of the agreement was not contemplated by the parties and are outside the scope of the 

Letter Agreements.” 

 The court granted Daewoo’s motion for JNOV on the same grounds, stating: 

“[Daewoo] argues that it is entitled to judgment notwithstanding the verdict because . . . 

[¶] there was no substantial evidence that Starpoint communicated an intent to have the 

audit letter extend the indemnity for enforcement and that [Daewoo] concurred with any 

such intent. The court agrees. As discussed above . . . in . . . the motion for new trial, 

Starpoint did not present any competent parol evidence to support its interpretation of the 

contract. A party’s unexpressed subjective intent may not be considered in interpreting 

the contract. Accordingly, the motion for [JNOV] on this ground is [granted].” 

3. Starpoint’s motions for reconsideration and to set aside the judgment 

 Following the entry of the court’s order, Starpoint filed a motion for 

reconsideration and motion to set aside the judgment asserting that “the extrinsic 

evidence presented at trial supports Starpoint’s interpretation that the Letter Agreements 

provide for payment of enforcement costs. The evidence supports the jury’s verdict in 

Starpoint’s favor on this issue, and compels a denial of [Daewoo’s] JNOV motion and its 

motion for new trial.” Although Starpoint’s motions essentially repeated the arguments it 

had made in opposition to Daewoo’s motions for JNOV and new trial, Starpoint 

submitted additional trial testimony in support of its position. In particular, Starpoint 

highlighted testimony in which Hong stated that he had “conversations with Daewoo 

prior to . . . sen[ding] the letters” and that Daewoo had agreed to reimburse both “legal 

fees for defending and including legal fees for going after them if they d[id]n’t pay.” 

 In addition, Starpoint cited testimony in which Hong and Cha stated that if the 

letter agreements were not intended to require reimbursement of legal costs incurred in 

enforcement, KPMG would have mandated that Starpoint set aside a reserve for such 
12

costs in its annual financial statements. Hong also testified that Daewoo reviewed and 

approved the financial statements, and therefore was aware that Starpoint was not setting 

aside reserves for future enforcement costs. 

 The trial court denied the motions, explaining: “In essence, Starpoint argues that 

the evidence of the parties’ intent was sufficient to support the jury’s finding in the 

special verdict. However, this again rests on whether or not the testimony of Mr. Hong 

and Ms. Cha were competent parol evidence. Starpoint again argues that there was a 

dispute regarding extrinsic facts and that the trial testimony of Mr. Hong and Ms. Cha 

state that they communicated their understanding that the agreement provides for 

enforcement costs. [¶] However, as this Court has already explained, the testimony of 

Mr. Hong and Ms. Cha do not constitute competent parol evidence. [¶] . . . [¶] The 

citations to the testimony of Mr. Hong cited by Starpoint in its moving papers do not 

compel a different result. Mr. Hong simply stating that the parties had a mutual 

understanding is insufficient. None of Mr. Hong’s testimony cited in the motion shows 

that Mr. Hong communicated his intent in entering into the agreement nor do they 

support Starpoint’s interpretation of the agreement.” 

 On June 29, 2011, the court entered a “Judgment on Special Verdict and Pursuant 

to Rulings in Favor of [Daewoo] for its Motion for Judgment Notwithstanding the 

Verdict and Motion for New Trial.” The judgment affirmed the portion of the special 

verdict requiring Daewoo “to pay the sum of $57,667.28 for Starpoint’s attorney’s fees 

and legal expenses in the underlying product liability action.” The judgment further 

stated that, “[p]ursuant to the court’s ruling [granting Daewoo’s] Motion for Judgment 

Notwithstanding the Verdict and . . . Motion for New Trial, . . . it is hereby adjudged . . 

.[that] Starpoint shall take nothing on its claim that . . . [Daewoo] breached the contract 

with respect to recovery of Attorney Fees and costs in Starpoint’s action to enforce the 

contract; and Starpoint take nothing on its claim that [Daewoo] breached contractually 

the implied covenant of good faith and fair dealing.” Starpoint filed a timely appeal of 

the trial court’s order granting Daewoo’s motions for new trial and JNOV and the portion 

of the judgment reflecting those rulings. 
13

DISCUSSION 

 Starpoint argues that we must reverse the trial court’s order granting a JNOV and 

new trial because the jury’s finding that the parties intended the letter agreements to 

require Daewoo to reimburse “attorney’s fees and legal expenses incurred to enforce or 

prosecute the terms of the [agreements]” was supported by substantial evidence. As 

discussed in more detail below, Starpoint does not challenge the trial court’s ruling that, 

in the absence of competent extrinsic evidence clarifying the parties’ intent, the language 

of the letter agreements would not require Daewoo to reimburse enforcement costs. It 

asserts, however, that the trial court erred in concluding that the extrinsic evidence at trial 

was insufficient to support the jury’s interpretation of the contract. 

 Because an order granting a motion for JNOV and an order granting a motion for 

new trial are subject to significantly different standards of review, we address the trial 

court’s grant of each motion separately. 

A. The Trial Court Erred in Granting Daewoo’s Motion for Judgment 

Notwithstanding the Verdict 

1. Legal standards applicable to a judgment notwithstanding the verdict 

 “‘“The trial judge’s power to grant a judgment notwithstanding the verdict 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 

judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for 

judgment notwithstanding 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.]” (Sole Energy Co. v. Petrominerals 

Corp. (2005) 128 Cal.App.4th 212, 226-227 (Sole Energy).) 
14

 “‘In passing upon the propriety of a judgment notwithstanding the verdict, 

appellate courts view the evidence in the light most favorable to the party who obtained 

the verdict and against the party to whom the judgment notwithstanding the verdict was 

awarded. [Citations.] In other words, we apply the substantial evidence test to the jury 

verdict, ignoring the judgment.’ [Citation.]” (Sole Energy, supra, 128 Cal.App.4th at 

p. 227.) If, however, the “appeal challenging the denial of the motion for judgment 

notwithstanding the verdict raises purely legal questions, . . . our review is de novo. 

[Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 

1138 (Wolf).) 

2. The trial court did not err in permitting Starpoint to introduce extrinsic 

evidence of the parties’ intent 

 Before assessing whether substantial evidence supported the jury’s findings, we 

first address Daewoo’s assertion that we should affirm the JNOV because, as a matter of 

law, the letter agreements cannot be reasonably interpreted to require reimbursement of 

attorney’s fees incurred in enforcing the agreements. Prior to trial, the court ruled that 

the letter agreements were ambiguous on this issue and permitted Starpoint to introduce 

extrinsic evidence regarding “the intent of the parties.” Daewoo, however, contends that 

the trial court should have never permitted the trial to hear any extrinsic evidence because 

the agreements unambiguously preclude Starpoint from recovering enforcement costs. 

 A court must interpret a contract to give effect to the mutual intent of the parties at 

the time the contract was formed. (Civ. Code, § 1636.) “Ordinarily, the objective intent 

of the contracting parties is a legal question determined solely by reference to the 

contract’s terms. (Civ. Code, § 1639 [‘[w]hen a contract is reduced to writing, the 

intention of the parties is to be ascertained from the writing alone, if possible . . .’]; Civ. 

Code, § 1638 [the ‘language of a contract is to govern its interpretation . . .’].) [¶] The 

court generally may not consider extrinsic evidence . . . to vary or contradict the clear and 

unambiguous terms of a written . . . contract. [Citations.] Extrinsic evidence is 
15

admissible, however, to interpret an agreement when a material term is ambiguous. 

[Citations.]” (Wolf, supra, 162 Cal.App.4th at p. 1126.) 

 “The test of whether parol evidence is admissible to construe an ambiguity is not 

whether the language appears to the court to be unambiguous, but whether the evidence 

presented is relevant to prove a meaning to which the language is ‘reasonably 

susceptible.’ [Citation.]” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet).) As 

explained by the California Supreme Court: “Although extrinsic evidence is not 

admissible to add to, detract from, or vary the terms of a written contract, these terms 

must first be determined before it can be decided whether or not extrinsic evidence is 

being offered for a prohibited purpose. The fact that the terms of an instrument appear 

clear to a judge does not preclude the possibility that the parties chose the language of the 

instrument to express different terms. That possibility . . . exists whenever the parties’ 

understanding of the words used may have differed from the judge’s understanding.” 

(Pacific Gas & E. Co. v. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40.) 

 “The decision whether to admit parol evidence involves a two-step process. First, 

the court provisionally receives (without actually admitting) all credible evidence 

concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the language is 

‘reasonably susceptible’ to the interpretation urged by a party. If in light of the extrinsic 

evidence the court decides the language is ‘reasonably susceptible’ to the interpretation 

urged, the extrinsic evidence is then admitted to aid in the second step – interpreting the 

contract.” (Winet, supra, 4 Cal.App.4th at p. 1165.) In this case, the court concluded that 

the letter agreements were reasonably susceptible to the interpretation set forth by 

Starpoint and permitted extrinsic evidence. 

 We agree that that the letter agreements are ambiguous as to whether the parties 

intended to require Daewoo to reimburse attorney’s fees incurred in enforcing the 

agreements. The April 2000 letter states, in relevant part, that Daewoo “has agreed to 

reimburse all product liability expenses, including fees and disbursements to legal 

counsel . . . relating to vehicles and parts purchased by [DMA] from [Daewoo].” The 

phrase “all product liability expenses, including . . . disbursements to legal counsel” 
16

might be reasonably construed as extending to legal fees incurred to enforce the 

agreement. Such costs would not have been incurred but for a product liability claim, 

and therefore might be reasonably characterized as a “product liability expense.” 

Moreover, the April 2000 letter agreement contains no language that expressly precludes 

the award of legal fees incurred in enforcing the agreement. 

 The April 2003 letter contains similar language stating, in relevant part, that 

Daewoo “has agreed to indemnify . . . [DMA] from any claim . . . (including legal fees, 

costs, and expense related thereto) involving allegations of . . . bodily injury or property 

damages allegedly caused by . . . [Daewoo] products.” Again, the language requiring 

Daewoo to indemnify all “legal fees, costs and expenses” “related” to a product liability 

claim might be reasonably construed as including legal expenses Starpoint incurred in 

enforcing Daewoo’s indemnity obligations. Such expenses were ultimately incurred as a 

result of a product liability claim and were therefore arguably “related” to the product 

liability claim. Moreover, as with April 2000 letter, the April 2003 letter contains no 

language that expressly precludes the reimbursement of such fees. 

 Daewoo, however, contends that several cases have considered indemnity 

agreements with similar language and concluded that they did not require reimbursement 

of attorney’s fees incurred to enforce the agreements. For example, in Carr Business 

Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14 (Carr), the parties 

disputed whether the following provisions extended to legal expenses incurred in 

enforcing the agreement: “[Carr] shall indemnify and hold harmless [Chowchilla] . . . 

from and against all claims, damages, losses and expenses including attorney fees arising 

out of the performance of the work described herein . . .” (Id. at p. 19.) The court 

concluded that although, “[a]t first glance, the language . . . seem[ed] to extend beyond 

[costs associated with the] third-party claims[,] . . . relevant case authority suggest[ed]” 

the agreement could not be read so broadly. (Id. at p. 20.) 

 The court reviewed three cases – Myers Building Industries, Ltd. v. Interface 

Technology, Inc. (1993) 13 Cal.App.4th 949 (Myers), Meininger v. Larwin–Northern 

California, Inc. (1976) 63 Cal.App.3d 82 (Meininger) and Campbell v. Scripps Bank
17

(2000) 78 Cal.App.4th 1328 (Campbell) – that considered whether an indemnification 

agreement requiring reimbursement of legal fees “arising out of” or “related to” the 

performance of certain duties extended to legal fees incurred in enforcing the agreement. 

(See Myers, supra, 13 Cal.App.4th at pp. 963-964 [indemnifying “all claims . . . and 

expenses, including . . . attorney’s fees, arising out of . . . the performance of the Work”]; 

Meininger, supra, 63 Cal.App.3d at p. 84 [indemnifying “any . . . claims . . . , including 

counsel or attorneys’ fees . . . which may arise directly or indirectly from the performance 

of this Contract’]; Campbell, supra, 78 Cal.App.4th at p. 1336 [indemnifying “claims, . . . 

including . . . reasonable attorneys fees . . . which arise . . . from . . . or relate to this 

escrow”].) In all three decisions, the courts concluded that the agreements did not 

“allow[] recovery of [enforcement] fees.” (Carr, supra, 166 Cal.App.4th at pp. 21-22.) 

The Carr court contrasted those decisions with Baldwin Builders v. Coast Plastering 

Corp. (2005) 125 Cal.App.4th 1339 and Continental Heller Corp. v. Amtech Mechanical 

Services, Inc. (1997) 53 Cal.App.4th 500, which ruled that such fees were recoverable 

where the contract included express language for “‘“attorney’s fees incurred in enforcing 

[the] indemnity agreement.”’ [Citation.]” (Carr, supra, 166 Cal.App.4th at p. 23.) 

 The Carr court concluded that that the language of the indemnity provision under 

consideration “more closely parallel[ed] the language found in Myers, Meininger, and 

Campbell, than the language examined in Baldwin and Continental. Unlike in Baldwin, 

there is no express language authorizing recovery of fees in an action to enforce the 

contract.” (Carr, supra, 166 Cal.App.4th at p. 23.) 

 Daewoo asserts that Carr is the latest in “a long line of established authorities 

holding that,” in the absence of language expressly authorizing recovery of fees in an 

action to enforce the contract, “standard third party indemnity language . . . may not be 

construed to grant any right to recover attorney fees incurred in the enforcement of the 

indemnity agreement.” 

 Although Starpoint acknowledges that the contractual language at issue in Carr, 

Myers, Meininger and Campbell cannot be meaningfully distinguished from the language 

in the letter agreements here, it correctly asserts that in none of those decisions did the 
18

parties submit extrinsic evidence. Moreover, none of the decisions addressed whether 

extrinsic evidence could have been properly admitted to aid in the interpretation of the 

agreements. Thus, the limited issue decided in those cases was whether the language of 

the indemnity agreements, considered without the benefit of extrinsic evidence, were 

properly interpreted as requiring reimbursement of fees incurred to enforce the 

agreement. The issue here, however, is whether the letter agreements were “reasonably 

susceptible” to such an interpretation, thereby supporting the admission of extrinsic 

evidence. 

 For the reasons explained above, we conclude that the letter agreements were at 

least reasonably susceptible to Starpoint’s interpretation. The trial court’s admission of 

extrinsic evidence was therefore proper. 

3. Starpoint introduced substantial evidence that the parties intended the 

letter agreements to include reimbursement of enforcement costs 

 The court granted Daewoo’s motion for JNOV because it concluded that Starpoint 

failed to introduce any “competent” extrinsic evidence regarding the parties’ intended 

meaning of the letter agreements. (See City of Hope National Medical Center v. 

Genentech, Inc. (2008) 43 Cal.4th 375, 395 [interpretation of a written contract is “solely 

a judicial function . . . when a determination was made based on incompetent [extrinsic] 

evidence. [Citation.]”].) In particular, the court concluded that Starpoint’s witnesses had 

merely described their own subjective understanding of the letter agreements without 

offering any evidence that they had “communicat[ed]” this intent to Daewoo. According 

to the court, Starpoint’s President, Yeong Soo Hong, testimony showed only that: (1) he 

had sent Daewoo the letter agreements for signature; and (2) he could not recall whether 

he had any discussions with Daewoo regarding the meaning of the letters prior to their 

execution. The court concluded that none of the other witnesses provided any testimony 

related to discussions with Daewoo. 

 Starpoint does not dispute that “‘[e]vidence of the undisclosed subjective intent of 

 the parties is irrelevant to determining the meaning of contractual language.’” (Salehi v. 
19

Surfside III Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1159 (Salehi) 

[“‘[e]vidence of the undisclosed subjective intent of the parties is irrelevant to 

determining the meaning of contractual language’”]; Winet, supra, 4 Cal.App.4th at 

p. 1165, n. 3 [witness’s “testimony as to what he subjectively understood and intended 

the [contract] to encompass . . . was not competent extrinsic evidence, because evidence 

of the undisclosed subjective intent of the parties is irrelevant to determining the meaning 

of contractual language”].) It argues, however, that it presented substantial evidence 

from which the jury could reasonably infer that Hong did in fact communicate his 

understanding of the letter agreements to Daewoo and that Daewoo shared his 

understanding. We agree. 

 “The testimony of a single witness, even a party, is sufficient to provide 

substantial evidence to support a factual finding.” (Fariba v. Dealer Services Corp. 

(2009) 178 Cal.App.4th 156, 171.) At trial, Hong testified that, when he sent the letters 

the Daewoo, the parties “ha[d] a mutual understanding” that Daewoo was required to 

reimburse any legal costs incurred in enforcing the agreements. Hong also testified that: 

(1) he had conversations with Daewoo about the letter agreements before they were 

signed; and (2) Daewoo specifically “agreed to reimburse . . . a hundred percent relating 

to product liability expenses,” which included both “legal fees for defending and . . . legal 

fees for going after them if they don’t pay.” 

 Under the “highly deferential” substantial evidence standard (Hub City Solid 

Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1128, Hong’s 

testimony was sufficient to support the jury’s finding that the parties intended the 

agreements to require reimbursement of legal expenses incurred in enforcing those 

agreements. Considered in the light most favorable to the verdict, a jury could 

legitimately infer from Hong’s testimony that, before entering into the letter agreements, 

he had conversations during which Daewoo agreed it would indemnify enforcement 

costs. 

 As the trial court observed, it is true that other portions of Hong’s testimony 

raise questions as to whether he did in fact engage in any such discussions. During his 
20

cross-examination, Hong repeatedly stated that he could not recall whether he had any 

conversations with Daewoo regarding the meaning of the letter agreements. He also 

stated that such conversations would have been unnecessary because it was “common 

sense” that Daewoo would reimburse the costs of enforcing the indemnity agreements. 

Under the “substantial evidence rule,” however, we “must accept as true the evidence 

supporting the verdict, disregard conflicting evidence, and indulge every legitimate 

inference to support the verdict.” (Murray’s Iron Works, Inc. v. Boyce (2008) 158 

Cal.App.4th 1279, 1285.) “‘[E]ven testimony which is subject to justifiable suspicion 

do[es] not justify the reversal of a judgment, for it is the exclusive province of the . . . 

jury to determine the credibility of a witness and the truth or falsity of the facts upon 

which a determination depends.’” (New v. New (1957) 148 Cal.App.2d 372, 384.) 

4. The court erred in granting JNOV on Starpoint’s implied covenant 

claim 

 In its motion for JNOV, Daewoo argued that because Starpoint had presented no 

evidence supporting the jury’s finding that the letter agreements required reimbursement 

of enforcement costs, the court must also grant a JNOV on Starpoint’s breach of the 

implied covenant claim, which alleged that Daewoo had “‘unfairly interfere[d ]with 

Starpoint’s right to receive’” this contractual benefit. 

 The court’s written order states that it “agreed” with Daewoo on this issue. The 

final judgment reflects this finding, stating that Starpoint shall “take nothing on its claim 

that [Daewoo] breach . . .the implied covenant . . .” Based on the text of the order and 

final judgment, it appears that the court entered a JNOV on Starpoint’s implied covenant 

claim based on its finding that that the jury’s interpretation of the letter agreements was 

not supported by substantial evidence.2

 Because we conclude that substantial evidence 

 

2

 The court’s written order, however, also stated that “the error was not prejudicial” 

because Starpoint “did not recover any damages on the breach of the covenant claim that 

were not independently recoverable under the breach of contract claim.” Despite that 

finding, the language in the final judgment indicates that the court entered judgment 

against Starpoint on the claim. 
21

did support the jury’s finding on that issue, we also reverse the court’s grant of JNOV on 

Starpoint’s implied covenant claim. 

B. The Trial Court Did Not Abuse its Discretion in Granting the Motion for 

New Trial 

 Daewoo ’s motion for new trial raised essentially the same argument set forth in 

its motion for [JNOV]. Specifically, Daewoo contended that the trial should permit a 

new trial pursuant to Code of Civil Procedure section 657, subdivision (6) because the 

“weight of the evidence” showed that Starpoint had never “communicated” its 

“subjective intent” to Daewoo at any time prior to the execution of the letter agreements. 

The trial court granted Daewoo’s motion for new trial for the same reasons it granted the 

JNOV. Specifically, the court ruled that: (1) Starpoint’s extrinsic evidence showed only 

its “undisclosed subjective” understanding of the letter agreements, which was “irrelevant 

to determining the meaning of contractual language”; (2) in the absence of any 

“competent parol evidence,” interpretation of the letter agreements was a question of law; 

and (3) the plain language of the letter agreements did not “obligate [Daewoo] to pay 

attorney’s fees in actions to enforce the contract.” 

 On appeal, Starpoint contends that because the record contains “credible evidence 

of the contracting parties’ intent . . .” , the trial court “erred in taking this issue from the 

jury . . .” 

1. Summary of applicable law and standard of review 

 “[T]he function of a new trial motion is to allow a reexamination of an issue of 

fact. . . . Unlike . . . judgments notwithstanding the verdict[,] . . . . granting a new trial 

does not entail a victory for one side or the other. It simply means the reenactment of a 

process which may eventually yield a winner. Accordingly, the judge has much wider 

latitude in deciding the motion.” (Fountain Valley Chateau Blanc Homeowner’s Assn. v. 

Department (1998) 67 Cal.App.4th 743, 751 (Fountain Valley).) 

 Code of Civil Procedure section 657 sets forth the exclusive grounds for granting a 

new trial. (See Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198.) 
22

Section 657, subdivision (6) permits the court to order a new trial on all or part of 

the issues based on “[i]nsufficiency of the evidence to justify the verdict or other 

decision . . . .” “Insufficiency of the evidence in this context means an absence of 

evidence or that the evidence received, in the individual judgment of the trial judge, is 

lacking in probative force to establish the proposition of fact to which it is addressed.” 

(Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215.) In making this assessment, 

the trial court is permitted to “disbelieve witnesses, reweigh evidence and draw 

reasonable inferences contrary to that of the jury. . . ” (Fountain Valley, supra, 67 

Cal.App.4th at p. 751.) On appeal, “an order granting a new trial upon the ground of the 

insufficiency of the evidence . . . shall be reversed as to such ground only if there is no 

substantial basis in the record for any of such reasons.” (Code of Civ. Proc., § 657.) 

 A ruling on a motion for a new trial is “generally review[ed] . . . for abuse of 

discretion.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.) In Lane v. Hughes 

Aircraft Co. (2000) 22 Cal.4th 405, the California Supreme Court clarified the highly 

deferential standard of review applicable to a new trial order predicated on insufficiency 

of the evidence: “[The] order . . . ‘must be sustained on appeal unless the opposing party 

demonstrates that no reasonable finder of fact could have found for the movant on [the 

trial court’s] theory. [Citation.] Moreover, ‘[a]n abuse of discretion cannot be found in 

cases in which the evidence is in conflict and a verdict for the moving party could have 

been reached . . . .’ [Citation.] In other words, ‘the presumption of correctness normally 

accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new 

trial] order.’ [Citation.] [¶] . . . [¶] The only relevant limitation on this discretion is that 

the trial court must state its reasons for granting the new trial, and there must be 

substantial evidence in the record to support those reasons. [Citation.]” (Id. at p. 412.) 

“[G]iven the latitude afforded a judge in new trial motions, orders granting new trials 

[based on insufficiency of the evidence] are ‘infrequently reversed.’” (Fountain Valley, 

supra, 67 Cal.App.4th at p. 751.) 
23

2. The trial court did not abuse its discretion in granting a new trial based 

on insufficiency of the evidence 

 The trial court’s order indicated that it had granted the motion for new trial upon 

the ground of insufficiency of the evidence: “[Starpoint] did not produce any competent 

parol evidence that supports its interpretation that the Letter Agreements were intended to 

include attorney’s fees in an action to enforce the contract.” The order also provided a 

statement of reasons for the decision, explaining that Starpoint’s evidence did not 

establish that it had communicated its subjective understanding subjective understanding 

of the letters to Daewoo. The court noted that Hong had testified that he could not recall 

having any conversations with Daewoo regarding the letter agreements, while Cha “was 

not a party to the negotiations or execution of the Letter Agreements, but had merely 

gained her knowledge from review of the agreements.” In the court’s view, this 

testimony did not qualify as “competent parol evidence” because “the undisclosed 

subjective intent of the parties [wa]s irrelevant to determining the meaning of contractual 

language.” 

 Starpoint contends that we must reverse the trial court’s order because the 

evidence at trial was sufficient to support an inference that Starpoint did communicate its 

subjective understanding of the letter agreements to Daewoo. In effect, Starpoint asserts 

that because substantial evidence supported the jury’s interpretation of the letter 

agreements, the court should have denied the motion for new trial. This assertion 

overlooks the different tests applicable to a motion for JNOV and a motion for new trial. 

In evaluating the motion for JNOV, the trial court was prohibited from weighing the 

evidence or assessing credibility, and was tasked with determining whether there was any 

substantial evidence, contradicted or uncontradicted, to support the jury’s verdict. But, 

when it came to the motion for new trial, the court was permitted to weigh the evidence, 

consider the credibility of witnesses, and determine whether the weight of the evidence 

went against the jury’s verdict. (Casella v. Southwest Dealer Services (2007) 157 

Cal.App.4th 1127, 1159-1160.) Moreover, the trial court was free to draw inferences 
24

from the evidence different from those the jury accepted. (Horsford v. Board of Trustees 

of California State University (2005) 132 Cal.App.4th 359, 379.) 

 Starpoint attempts to avoid this deferential standard of review by asserting that the 

court’s “conclusion that . . . the proffered extrinsic evidence was not competent evidence 

of the parties’ mutual understanding of their contracts” involved a question of law that we 

review de novo. While it is true that an order granting a new trial based on an issue of 

law is reviewed under the de novo standard (see Doe v. United Airlines, Inc. (2008) 160 

Cal.App.4th 1500, 1505), the order here was clearly predicated on the court’s factual 

finding that Starpoint failed to prove it communicated its subjective understanding of the 

agreement to Daewoo. Accordingly, we must affirm the court’s order “unless [Starpoint] 

demonstrates that no reasonable finder of fact could have found for the movant on [the 

trial court’s] theory. . . .” (Lane, supra, 22 Cal.4th at p. 412.) Starpoint has made no 

such showing. 

 As discussed above, Hong was the only witness who testified as to 

communications between Daewoo and Starpoint. During cross-examination, Hong 

repeatedly stated that he could not recall whether he had any discussions with Daewoo 

regarding the terms of the letter agreement. During his re-direct examination, however, 

he stated that he had in fact spoken with Daewoo prior to entering into the letter 

agreements and that Daewoo agreed it would reimburse legal fees incurred in enforcing 

the agreement. Finally, on re-cross examination, defense counsel asked Hong again 

whether he “had a specific conversation . . . in which Daewoo . . . specifically said that 

they would agree to . . . reimburse[] . . . legal expenses, incurred in going after Daewoo 

Motor Korea for product liability expenses?” In response, Hong said he did not have to 

tell Daewoo “each and every case” that was covered by the letter agreements because it 

was “common knowledge” that a manufacturer would pay for any costs associated with 

enforcing a product liability indemnity agreement. In light of this inconsistent testimony, 

a reasonable trier of fact could conclude that Hong did not have any conversation with 

Daewoo about his subjective understanding of the contracts. 
25

 Starpoint contends that, in addition to Hong’s testimony, evidence of the parties’ 

conduct unequivocally shows they mutually agreed that the letter agreements were 

intended to require reimbursement of legal fees incurred in enforcing the agreements. 

Hong and Cha testified that if Starpoint or KPMG did not believe those fees were 

covered by the letter agreements, KPMG would have required Starpoint to list a reserve 

for such fees on its annual financial statements. Hong further testified that Daewoo 

reviewed the financial statements and never asserted that Starpoint should include 

reserves for costs associated with enforcing the letter agreements. Starpoint contends this 

“evidence of the parties’ conduct” shows they shared a mutual “understanding of the 

Letter Agreements . . . – namely that, that [Starpoint] had no exposure for enforcement 

costs.” 

 To the extent this evidence is even relevant to demonstrating the meaning Daewoo 

ascribed to the letter agreements, it is certainly not sufficient to reverse the trial court’s 

order granting a new trial. Starpoint produced no evidence showing that Daewoo shared 

its belief that a financial statement would normally include a reserve for future costs of 

enforcing an indemnity provision. Nor did it introduce any expert testimony suggesting 

that a financial statement should normally include such a reserve. Without such 

evidence, Hong and Cha’s testimony about Starpoint’s financial statements merely serve 

as additional evidence of their own, undisclosed subjective understanding of the contract. 

 Because a reasonable trier of fact could have concluded that Starpoint failed to 

provide any competent extrinsic evidence regarding the parties’ intent, the court did not 

abuse its discretion in granting a new trial on the jury’s finding that Daewoo breached the 

letter agreements by failing to reimburse Starpoint for attorney’s fees incurred in 

enforcing the agreements. Nor did the court abuse its discretion in granting a new trial on 

Starpoint’s breach of the implied covenant claim, which was predicated on this same 

alleged breach of the letter agreements.3

 

 

3

 Daewoo filed a “protective” cross-appeal to the portion of the jury verdict and 

original judgment finding that it breached the letter agreements by failing to reimburse 
26

DISPOSITION 

 The judgment and the court’s order granting Daewoo judgment notwithstanding 

the verdict are reversed. The trial court’s order granting a new trial on the jury’s finding 

that Daewoo breached the letter agreements by failing to reimburse Starpoint’s 

enforcement costs and breached the implied covenant of good faith and fair dealing is 

affirmed. Because the parties have not appealed the portion of the verdict finding that 

Daewoo breached the letter agreements by failing to reimburse Starpoint for legal 

expenses incurred in defending against the Bandy Action, no retrial on that issue is 

required. Each party shall bear its own costs on appeal. 

 ZELON, J. 

We concur: 

 PERLUSS, P. J. 

 WOODS, J. 

 

Starpoint for attorney’s fees incurred in enforcing the agreements. Daewoo asserts that 

the jury’s finding on this issue was caused, in part, by various instructional and 

evidentiary “errors” that were subsequently “rendered moot by the trial court’s order 

granting [the’ [n]ew [t]rial and JNOV motions.” Because we affirm the trial court’s order 

granting a new trial, which vacates the portion of the jury verdict and original judgment 

to which Daewoo objects, we need not address the issues raised in the cross-appeal.