                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


  IFTIGER FAMILY TRUST, an Arizona Trust by and through Trustees,
     JAMES DUBOIS, III, and JEFFREY DUBOIS, Plaintiffs/Appellees,

                                        v.

                 W. DAVID WESTON, Defendant/Appellant.

                             No. 1 CA-CV 17-0463
                               FILED 5-24-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CV201200412
                 The Honorable Richard Weiss, Judge

                                  AFFIRMED


                               APPEARANCES

W. David Weston, Salt Lake City, Utah
Defendant/Appellant



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.
                        IFTIGER, et al. v. WESTON
                           Decision of the Court



B E E N E, Judge:

¶1            Defendant W. David Weston (“Weston”) appeals the superior
court’s final judgment, challenging the amount of damages he was
awarded. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            This is Weston’s second appeal against Plaintiff Iftiger Family
Trust (“Trust”). We limit our discussion to the facts and procedural history
relevant to this appeal, however, a more detailed account can be found in
our decision of Weston’s first appeal. See Iftiger Family Trust v. Sweet, 1 CA-
CV 15-0385, 2016 WL 6123889, at * 1, ¶ 1 (Ariz. App. Oct. 20, 2016) (mem.
decision).

¶3             In 2006, the Trust and Gyro Stone entered into an agreement
(“Agreement”) concerning the interest and operation of a mine located in
Mohave County and owned by the Trust. The Agreement provided Gyro
Stone with a 60% interest and the Trust with a 40% interest in the mine
production, and provided that Gyro Stone would furnish all the startup
costs until the mine produced gold at a particular rate (“Startup Period”).
On June 4, 2007, the Startup Period ended and, pursuant to the Agreement,
Gyro Stone and the Trust began to share profits and expenses according to
their respective interest percentages (60%/40%).

¶4            Over the next few years, the partnership between the Trust
and Gyro Stone deteriorated, and in 2012, the Trust filed suit against
various parties implicated in the Agreement, including Gyro Stone. In 2013,
Gyro Stone’s sole partner, Anne Sweet, assigned all her interests and rights
in the lawsuit to Weston and he was substituted in as a party.1 Shortly
thereafter, Weston filed his own counterclaims and third-party claims2 for


1      It is unclear from the record why Anne Sweet assigned her interests
and rights in this lawsuit to W. David Weston or how and in what capacity
he became involved with Anne Sweet and Gyro Stone.

2      Weston’s third-party claims against James Dubois, III and Jeffrey
Dubois were dismissed following the 2015 default hearing and we affirmed
dismissal in Weston’s first appeal. See Iftiger Family Trust v. Sweet, 1 CA-CV
15-0385, 2016 WL 6123889, at * 1, ¶ 1 (Ariz. App. Oct. 20, 2016) (mem.
decision).


                                      2
                         IFTIGER, et al. v. WESTON
                            Decision of the Court

eight causes of action: conversion, unjust enrichment, interference with
potential business advantage, and five counts of duplicate arguments
constituting a single breach of contract claim based on the Trust’s breach of
the Agreement. After the Trust failed to respond to Weston’s requests for
admissions, the superior court deemed those admitted. Then, in March
2015, the court entered a default against the Trust when it failed to defend
against Weston’s claims.

¶5            A default hearing was held in March 2015 as to Weston’s
counterclaims and third-party claims only. After taking the matter under
advisement, the superior court found, among other things, that (1) Gyro
Stone breached the Agreement by demanding payment from the Trust for
the costs incurred during the Startup Period, in direct conflict with the
terms of the Agreement; (2) Gyro Stone breached the Agreement by
beginning mining operations without notifying the mining inspector or
obtaining the appropriate permits as required by law; (3) the mining
operation was not profitable pursuant to the provisions of the Agreement;
(4) Weston failed to establish that the Trust breached the Agreement or that
he was entitled to punitive damages and; (5) Weston was entitled to $20,000
for conversion for equipment that Gyro Stone supplied and the Trust
removed from the mine site.

¶6              In the first appeal, in pertinent part, we reversed dismissal of
Weston’s breach of contract claims and remanded for further determination
on damages. See Iftiger Family Trust, 1 CA-CV 15-0385, at * 1, ¶ 1. We
directed the superior court to “determine the amount of damages, if any,
proven at the default judgment hearing” after the end of the Startup Period,
of which “Weston will be entitled to forty percent of the total costs, but not
lost profits, incurred after that date.” Id. at * 5, ¶¶ 25, 27. As to Weston’s
request for punitive damages, we found that “[a]lthough punitive damages
are not usually awarded in breach of contract actions, the superior court
may consider whether Weston is entitled to them on remand.” Id. at ¶ 26.

¶7            On remand, the superior court reviewed and considered the
transcripts and exhibits of the 2015 default hearing, as well as our 2016
mandate. The court found, based on the evidence, including the Summary
of Damage Claims submitted by Weston, that Gyro Stone incurred total
expenses of $47,497.02 after the Startup Period. Pursuant to our specific
mandate, the court awarded Weston $18,998.81, representing 40% of the
costs the Trust was liable for under the terms of the Agreement. As for
punitive damages, the court found insufficient evidence presented at the
hearing supported such an award. Weston unsuccessfully moved for



                                       3
                        IFTIGER, et al. v. WESTON
                           Decision of the Court

rehearing to amend the final judgment and final judgment was entered in
July 2017.

¶8             Weston timely appealed.3 We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes sections 12-120.21(A)(1), and -2101(A)(1).

                               DISCUSSION

¶9             “We defer to a trial court’s factual findings, so long as they
are supported by substantial evidence, but we review any issues of law de
novo.” Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442, ¶ 12
(App. 2001). “[E]ven where conflicting evidence exists, this court will not
reweigh the evidence and we affirm the trial court’s ruling [if] substantial
evidence supports it.” Sholes v. Fernando, 228 Ariz. 455, 460, ¶ 15 (App. 2011)
(citation and internal quotations omitted).

¶10           Weston argues the superior court erred by failing to award
him the entire $47,497.02 of expenses Gyro Stone incurred after the Startup
Period. Specifically, Weston claims, without citation to supporting
authority, that he is entitled to the entire amount because the Trust’s
conduct caused the loss of Gyro Stone’s investment, the court ignored the
weight of his well-pled facts and the Trust’s admissions, and the Trust
violated the covenant of good faith and fair dealing. We disagree.

¶11            First, although the Agreement provides that Gyro Stone
would receive 60% of the profits, the superior court found, and Weston
does not challenge, that the mine was not profitable. Next, Weston himself
submitted evidence at the default hearing titled Summary of Damage
Claims indicating that Gyro Stone incurred total expenses of $47,497.02
following the Startup Period. Contrary to Weston’s assertion, however, he
is not entitled to 100% of those costs. The very terms of the Agreement
entered into by Gyro Stone and the Trust provide that the Trust was liable
only for 40% of the costs. Weston does not argue the Agreement is the result
of fraud. As such, because the parties bound themselves to a lawful
contract, we will give effect to the terms of their clear and unambiguous
contract as written. See Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 639,
¶ 16 (App. 2008) (“It is not within the province . . . of the court to alter,
revise, modify, extend, rewrite or remake an agreement. . . . Where the


3      The Trust did not file an answering brief. In the exercise of our
discretion, however, we decline to treat its failure to respond as a confession
of reversible error. See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982).


                                      4
                        IFTIGER, et al. v. WESTON
                           Decision of the Court

intent of the parties is expressed in clear and unambiguous language, there
is no need or room for construction or interpretation and a court may not
resort thereto.”) (citation omitted). Last, on remand, we instructed the
superior court to determine damages and specifically stated that Weston
was entitled to 40% of the total costs, but not lost profits. Substantial
evidence supports the superior court’s award of $18,998.81, or 40%, to
Weston.

¶12           Weston next argues that the superior court erred by failing to
award him “at least $10,000 in punitive damages” because “the evidence
established the actions of the [Trust] were motivated by intentional malice
and conversion.”

¶13           “Punitive damages are not usually awarded in contract
actions, unless there is an accompanying tort.” Miscione v. Bishop, 130 Ariz.
371, 374-75 (App. 1981). It is unclear from Weston’s brief what specific
actions taken by the Trust entitle him to punitive damages, however, he
claims that there were “multiple instances in which [the Trust] and [its]
agents acted in a way that created a substantial risk of harm to [Gryo
Stone’s] agents.” We discern his argument to center around alleged
“disruptions” at the mine by certain individuals that prohibited or stopped
mining operations, thereby harming Gyro Stone’s investment. Before
remand, however, the superior court specifically found that, based on the
evidence at the 2015 default hearing, Gryo Stone’s own failure to allow a
Trust representative on site at the mine, as required by the Agreement, led
to those alleged disruptions and the evidence failed to establish that those
individuals were agents of or under the authority of the Trust. Weston did
not allege a tort accompanying the breach of Agreement claim, nor did he
prove any tortious or fraudulent conduct. On remand, the superior court
found insufficient evidence supported an award for punitive damages.
Because the decision to award punitive damages was within the superior
court’s discretion, we find no error. See Miscione, 130 Ariz. at 375.

                              CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s final
judgment.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA
                                        5
