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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RISAS HOLDINGS LLC, et al., Plaintiffs/Appellees,

v.

BRANDON TACKETT, et al., Defendants/Appellants.

No. 1 CA-CV 20-0150

Appeal from the Superior Court in Maricopa County

No. CV2016-001841

The Honorable Christopher T. Whitten, Judge

AFFIRMED

COUNSEL

Osborn Maledon, P.A., Phoenix

By Scott W. Rodgers, Kristin L. Windtberg, Eric M. Fraser

Counsel for Plaintiffs/Appellees

Galbut Beabeau, P.C., Scottsdale

By Olivier A. Beabeau, Keith R. Galbut, Grant H. Frazier

Counsel for Defendants/Appellants

FILED 12-1-2020
RISAS HOLDINGS, et al. v. TACKETT, et al.

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MEMORANDUM DECISION

Acting Presiding Judge Lawrence F. Winthrop delivered the decision of the 

Court, in which Chief Judge Peter B. Swann and Judge Maurice Portley1

joined.

W I N T H R O P, Judge:

¶1 Brandon and Catherine Tackett (“the Tacketts”) appeal the 

superior court’s denial of attorneys’ fees and costs following resolution of 

multi-count litigation with Risas Dental Management, LLC, and Risas

Holdings, LLC (collectively, “Risas”). The Tacketts argue the trial court 

erred in denying their request for attorneys’ fees and costs based on a 

contractual agreement between the parties and based on Arizona Revised 

Statutes (“A.R.S.”) sections 12-341, -341.01. The Tacketts also contend the 

court erred in failing to grant attorneys’ fees for defending a trade secret 

claim pursuant to A.R.S. § 44-404(3). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Risas Holdings, LLC, owns and manages Risas Dental 

Management, LLC, which operates dental offices in Arizona and Colorado. 

Risas hired Brandon Tackett (”Tackett”) as a support center director in 2013, 

and he transitioned into the role of marketing director in early 2015.

¶3 In connection with his employment, Tackett signed an 

Employee Confidentiality and Non-Solicitation Agreement (the 

“Confidentiality Agreement”). The Confidentiality Agreement prohibited 

Tackett from disclosing or using certain confidential company information

or trade secrets during and after his employment with Risas. It also 

restricted Tackett’s ability to solicit Risas’ employees for two years after 

Tackett ended his employment with Risas. In addition, Tackett signed a 

Stock Participation Agreement, which included additional confidentiality 

provisions (the “Participant Agreement”).

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.
RISAS HOLDINGS, et al. v. TACKETT, et al.

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¶4 Tackett gave Risas notice of his resignation in early 2016. A 

few weeks later, Tackett formed Somos Dental, LLC, and Somos Dental 

Services, LLC, (collectively, “Somos”) to provide dental management and 

consulting services.

¶5 Risas subsequently filed suit against Tackett, seeking 

monetary damages and a temporary restraining order, as well as 

preliminary and permanent injunctions, to prevent Tackett from competing 

with Risas or using Risas’ confidential information and intellectual 

property. An amended complaint later joined Tackett’s wife, Catherine, 

and Somos as defendants (collectively, the “Defendants”). The amended 

complaint alleged seven counts against the Tacketts and/or Somos: 

(1) Breach of the Confidentiality Agreement; (2) Violation of Arizona’s 

Uniform Trade Secrets Act; (3) Breach of Fiduciary Duty; (4) Preliminary 

and Permanent Injunction; (5) Unfair Competition; (6) Aiding and Abetting;

and (7) Breach of the Participant Agreement.

¶6 In May 2016, the parties entered a Consent Decree enjoining 

Tackett from using Risas’ confidential information for five years from the 

date of his termination and from soliciting any of Risas’ employees for two 

years from his termination. Although limited in scope, entry of this decree 

provided Risas the core relief it sought in Count 4 of its complaint. The 

court subsequently granted Defendants’ motion for summary judgment on 

all remaining counts of Risas’ complaint, except for Count 3, the claim for 

Breach of Fiduciary Duty. The parties later stipulated to a monetary 

judgment of $80,601.43 in favor of Risas to resolve the fiduciary duty claim.

¶7 Defendants filed an application for attorneys’ fees and costs 

and Risas filed an application for costs. After reviewing the parties’ 

memoranda, the court denied Defendants’ request for fees and costs, and 

awarded Risas its costs in the amount of $12,170.85. The court reasoned 

that, based on the totality of the litigation, Risas was the prevailing party 

because it obtained the injunctive relief it sought and obtained “the only 

money that changed hands.”

¶8 Defendants filed a motion for reconsideration on the issue of 

costs and fees, which the court denied. The court entered final judgment 

on the matter, affirming the injunctive relief covered by the Consent Decree, 

entering judgment for $80,601.43 in favor of Risas on the fiduciary duty 

claim, entering judgment for Defendants on the remaining counts, and 

awarding Risas its taxable costs.
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¶9 The Tacketts timely appealed the final judgment to this Court.

We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

ANALYSIS

I. Attorneys’ Fees and Costs Pursuant to the Confidentiality 

Agreement and A.R.S. §§ 12-341, -341.01

¶10 The Confidentiality Agreement mandates that if “any action 

at law or in equity is necessary to enforce or interpret the terms of this 

Agreement, the prevailing party will be entitled to reasonable attorneys’ 

fees, costs, and necessary disbursements.” Similarly, A.R.S. § 12-341.01

provides that “[i]n any contested action arising out of a contract, express or 

implied, the court may award the successful party reasonable attorney 

fees.” Also, “[t]he successful party to a civil action shall recover from his 

adversary all costs expended or incurred therein.” A.R.S. § 12-341.

¶11 The Tacketts contend that because they obtained summary 

judgment on every claim seeking enforcement of the Confidentiality 

Agreement, they are entitled to attorneys’ fees and costs for litigation of 

those contract-related claims through the summary judgment phase 

pursuant to the attorneys’ fees clause in the Confidentiality Agreement and 

A.R.S. §§ 12-341, -341.01. They argue the trial court had no reasonable basis 

to conclude Risas was the “prevailing party” under the contract because

Risas only secured a favorable judgment on the fiduciary duty claim, which 

is a tort claim that did not depend on or arise out of the Confidentiality 

Agreement.

¶12 We review de novo the application and interpretation of a 

contractual provision for attorneys’ fees and costs. Murphy Farrell Dev., 

LLLP v. Sourant, 229 Ariz. 124, 133, ¶ 31 (App. 2012). We also review de novo

the application and interpretation of A.R.S. § 12-341.01. Modular Mining 

Sys., Inc. v. Jigsaw Tech., Inc., 221 Ariz. 515, 521, ¶ 21 (App. 2009).

¶13 The trial court has discretion whether to award attorneys’ fees 

under A.R.S. § 12-341.01; but, “[u]nlike fees awarded under A.R.S. § 12-

341.01(A), the court lacks discretion to refuse to award fees under [a] 

contractual provision.” McDowell Mountain Ranch Cmty. Ass’n, Inc. v. 

Simons, 216 Ariz. 266, 269, ¶ 14 (App. 2007) (internal quotations omitted); 

accord Bennett v. Appaloosa Horse Club, 201 Ariz. 372, 378, ¶ 26 (App. 2001)

(“The awarding of attorneys’ fees to a prevailing party pursuant to a 

contract between the parties is mandatory.”).
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¶14 But whether pursuant to A.R.S. § 12-341.01 or an attorneys’ 

fees clause in a contract, the determination of which party is the 

“successful” or “prevailing” party for the purposes of awarding attorneys’ 

fees remains within the discretion of the trial court and will not be disturbed 

on appeal if any reasonable basis for it exists. See Sanborn v. Brooker & Wake 

Prop. Mgmt., Inc., 178 Ariz. 425, 430 (App. 1994); Bobrow v. Bobrow, 241 Ariz. 

592, 598, ¶ 25 (App. 2017); see also Assyia v. State Farm Mut. Auto. Ins. Co., 

229 Ariz. 216, 223, ¶ 32 (App. 2012) (noting the superior court has 

“substantial discretion” in determining who is the successful party for the 

purposes of costs). Accordingly, we need only consider whether any 

reasonable basis exists for the court’s determination that Risas was the 

prevailing party.

¶15 Looking at the totality of the litigation, including the

outcomes of the claims arising out of the Confidentiality Agreement, we 

cannot say the superior court abused its discretion. Although the court’s 

April 17, 2018 minute entry granted Defendants’ motion for summary 

judgment on all counts except Count 3 (Breach of Fiduciary Duty), the 

court’s final judgment correctly notes Count 4 was resolved by the Consent 

Decree entered prior to the summary judgment ruling. The basis for the

Consent Decree was the Confidentiality Agreement and the decree granted

Risas injunctive relief according to the scope of the Confidentiality 

Agreement with regard to the use of confidential information and 

solicitation of employees. Prior case law makes clear that in determining 

who is the “prevailing party” for the purposes of fees, “court-ordered 

consent decrees create the material alteration of the legal relationship of the 

parties necessary to permit an award of attorney’s fees.” Buckhannon Bd. & 

Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 604 (2001)

(internal quotations omitted). This is true even if the consent decree does 

not include an admission of liability. Id. Moreover, a claim need not be 

adjudicated on the merits to warrant an award of fees. Fulton Homes Corp. 

v. BBP Concrete, 214 Ariz. 566, 572, ¶ 24 (App. 2007).

¶16 The superior court’s later grant of summary judgment does 

not negate the enforceable injunctive relief Risas sought in its amended 

complaint and obtained through the Consent Decree.

2

 Similarly, the 

2 The Tacketts assert that the Consent Decree was no more than an 

“ephemeral” “initial victory” that was insufficient to make Risas the 

“prevailing party,” citing Sole v. Wyner, 551 U.S. 74, 86 (2007) (“[A] plaintiff 

who gains a preliminary injunction does not qualify for an award of counsel 

fees under § 1988(b) if the merits of the case are ultimately decided against 
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injunctive relief obtained by Risas is not made meaningless by the fact that 

Risas continued to seek more expansive injunctive relief after entering the 

Consent Decree. See Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 161, ¶ 10 

(App. 2016) (“Partial success does not preclude a party from ‘prevailing’ 

and receiving a discretionary award of attorneys’ fees; the superior court 

may find that a party is the successful party even when the recovery it 

obtains is significantly reduced.” (internal quotations omitted)). As such, 

there was a reasonable basis for the court to determine Risas was the 

prevailing party for the purposes of defeating Defendants’ claim for

attorneys’ fees and costs and awarding Risas its taxable costs. Accordingly,

the court did not abuse its discretion.

II. Attorneys’ Fees Pursuant to A.R.S. § 44-404(3)

¶17 With respect to Count 2, the trade secrets claim, A.R.S. § 44-

404 provides an attorneys’ fee award is permissible under the following 

circumstances:

The court may award reasonable attorney fees to the 

prevailing party for any of the following:

1. A claim of misappropriation made in bad faith.

2. A motion to terminate an injunction made or resisted in 

bad faith.

3. Willful and malicious appropriation.

¶18 The Tacketts argue they should have been granted attorneys’ 

fees pursuant to A.R.S. § 44-404(3) because they successfully defended 

against Risas’ trade secrets claim, which alleged Tackett had committed 

“willful and malicious appropriation.” In opposing that argument, Risas 

contends § 44-404(3) does not apply to a defendant seeking fees, arguing 

instead that only a plaintiff who prevails on a claim of willful and malicious 

misappropriation may recover fees under the subsection.

¶19 We review de novo the application and interpretation of A.R.S. 

§ 44-404. See Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 40, ¶ 8 (App. 

2012). To date, no Arizona state court case has explicitly addressed whether 

her.”). Yet Risas obtained more than an “initial victory” of a preliminary 

injunction; rather, it obtained an enforceable permanent injunction for the 

full period of time applicable under the Confidentiality Agreement.
RISAS HOLDINGS, et al. v. TACKETT, et al.

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a defendant who successfully defends a claim of willful and malicious 

appropriation of a trade secret can recover fees under § 44-404(3). But the 

language of the statute allowing an award of fees “to the prevailing party for 

any of the following . . .” leads us to agree with the Tacketts’ interpretation

that a party who successfully defends against a claim of willful and 

malicious appropriation is the prevailing party for the purposes of the court 

considering an award of attorneys’ fees pursuant to § 44-404(3). (Emphasis 

added); see Sempre Ltd. P’ship v. Maricopa Cnty., 225 Ariz. 106, 108, ¶ 5 (App. 

2010) (“We first look to the plain language of the statutes as the most 

reliable indicator of their meaning.”).

¶20 This interpretation is consistent with our application and 

interpretation of other permissive statutory fee provisions. For example, 

A.R.S. § 12-341.01 allows an award of attorneys’ fees to the successful party 

in an action “arising out of a contract.” But under that statute, attorneys’ 

fees may be awarded to the “successful party” who proves the absence of 

the contract sued upon by the opposing party. See Rudinsky v. Harris, 231 

Ariz. 95, 101, ¶ 27 (App. 2012) (“Even when a contract is alleged by a 

plaintiff and the defendant successfully proves that there was no contract, 

the action is considered to have arisen out of contract for purposes of A.R.S. 

§ 12-341.01.”); Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 490, 

¶ 36 (App. 2007) (“[A] court may award fees to a defendant [pursuant to 

A.R.S. § 12-341.01] if the defendant prevails on the basis that there is no 

contract or there has been no breach of the contract.”); Rogus v. Lords, 166 

Ariz. 600, 604 (App. 1991) (“[A] prevailing party is entitled to its fees under 

§ 12-341.01 when sued on a contract even if the judgment is based on the 

absence of any contract.”).

¶21 Although a party who successfully defends a trade secret 

claim for willful and malicious appropriation may qualify for an award of 

fees pursuant to A.R.S. § 44-404(3), we reiterate that the decision to award 

fees under a permissive fees statute, as well as the amount of any fees 

awarded, is discretionary with the court. See Hall v. Read Dev., Inc., 229 Ariz. 

277, 279, ¶¶ 7-8 (App. 2012). Here, the trial court considered the Tacketts’ 

arguments regarding fees pursuant to A.R.S. § 44-404(3) in both 

Defendants’ original application for attorneys’ fees and Defendants’ motion 

for reconsideration. As is proper in cases involving multiple claims and 

varied success, the superior court employed a “totality of the litigation” 

analysis and considered the outcome of all claims in making its
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determination of fees and costs.3 See Berry v. 352 E. Va., L.L.C., 228 Ariz. 9, 

13-14, ¶¶ 22-23 (App. 2011). We find no abuse of discretion in the trial 

court’s conclusion that the balance of success rested with Risas, nor with 

the court’s resulting denial of Defendants’ request for an award of 

attorneys’ fees and costs.

CONCLUSION

¶22 For the foregoing reasons, we affirm both the superior court’s 

grant of costs to Risas in the amount of $12,170.85 and the court’s denial of

attorneys’ fees and costs to the Defendants. We deny the Tacketts’ request 

for attorneys’ fees on appeal.

3 The Tacketts argue that the monetary award to Risas should not have 

been considered under the “totality of the litigation” analysis because, as a 

tort claim not arising out of the contract, the breach of fiduciary duty claim 

was not eligible for an award of fees. Although determining which claims 

are fee-eligible is necessary to assess the amount of fees available to a 

prevailing party, the court need not consider only fee-eligible claims when 

evaluating which party prevailed in the “totality of the litigation” for the 

purposes of an award of attorneys’ fees. See Ariz. Biltmore Hotel Villas 

Condos. Ass’n v. Conlon Grp. Ariz., LLC, 249 Ariz. 326, 334, ¶ 40 (App. 2020)

(accepting a “totality of the litigation” analysis in a case involving varied 

success on both fee-eligible and non-fee-eligible claims).