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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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.

FILED 5-24-2018
IFTIGER, et al. v. WESTON

Decision of the Court

2

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 CACV 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).
IFTIGER, et al. v. WESTON

Decision of the Court

3

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 
IFTIGER, et al. v. WESTON

Decision of the Court

4

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).
IFTIGER, et al. v. WESTON

Decision of the Court

5

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.