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

PAUL S. STEFANOVICH and JANET S. STEFANOVICH, husband and 

wife, Plaintiffs/Counterdefendants/Appellants,

v.

MIKEL STEWART ANDERSON and ROBIN KAY ANDERSON, husband 

and wife, Defendants/Counterclaimants/Appellees.

No. 1 CA-CV 15-0567

Appeal from the Superior Court in Maricopa County

No. CV2013-002535

The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Bihn & McDaniel PLC, Phoenix

By Martin A. Bihn, Donna M. McDaniel

Counsel for Plaintiffs/Counterdefendants/Appellants

Combs Gottlieb & MacQueen PC, Phoenix

By Christopher A. Combs, Patrick R. MacQueen, Benjamin L. Gottlieb

Counsel for Defendants/Counterclaimants/Appellees
STEFANOVICH v. ANDERSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.

T H U M M A, Judge:

¶1 Plaintiffs Paul and Janet Stefanovich appeal from a judgment 

entered on a jury verdict, claiming error in a jury instruction and in an 

award of attorneys’ fees. Because they have shown no error, the judgment 

is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2012, the Stefanoviches filed a justice court 

action claiming defendants Mikel and Robin Anderson breached a one-year 

agreement to lease a Chandler residence owned by the Stefanoviches. The 

Andersons answered and counterclaimed, alleging breach of contract, tort 

and unjust enrichment claims as well as violations of Arizona Revised 

Statutes (A.R.S.) sections 33-1321 (2016) (failure to return security deposit 

or provide accounting), 33-1324 (2016) (failure to maintain fit premises) and 

33-1343 (2016) (abuse of access).1

¶3 The Andersons’ counterclaim sought more than $10,000 in 

damages, meaning the action was removed to superior court and then 

transferred to compulsory arbitration. After a hearing, the arbitrator found 

in favor of (1) the Stefanoviches and awarded them $3,142.85 and (2) the 

Andersons on their abuse of access counterclaim under A.R.S. § 33-1343 and 

awarded them $2,700 (one month’s rent). The arbitrator awarded the 

Stefanoviches $24,800 in attorneys’ fees and $1,359.59 in costs. The 

Andersons appealed to superior court. See Ariz. R. Civ. P. 77(a). 

¶4 After a three-day trial, the superior court instructed the jury 

on the Stefanoviches’ breach of contract claim and the Andersons’ 

 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. A.R.S. § 33-1343 sets 

forth a landlord’s right to access a dwelling unit. The parties used the terms 

“abuse of access” and “unlawful entry” synonymously. For clarity, this 

court will refer to “abuse of access” unless the context otherwise requires. 
STEFANOVICH v. ANDERSON

Decision of the Court

3

counterclaims for breach of contract, negligent misrepresentation, 

fraudulent concealment and violations of A.R.S. §§ 33-1321 and 33-1343. 

The jury found in favor of (1) the Stefanoviches and awarded them $3,632;

(2) the Andersons on their counterclaims for negligent misrepresentation 

and violation of A.R.S. § 33-1343 and awarded them $5,480.90 and (3) the 

Stefanoviches on the Andersons’ remaining counterclaims decided by the 

jury.2 The superior court entered a final judgment on the jury verdict in 

favor of the Andersons in the net amount of $1,848.90 and, pursuant to the 

lease agreement and A.R.S. §§ 12-341.01 and 12-341, awarded the 

Andersons $107,265.50 in attorneys’ fees, $1,271.75 in computerized 

research costs and $3,583.77 in taxable costs. The Stefanoviches timely 

appealed. This court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).3

DISCUSSION

¶5 The Stefanoviches argue the superior court erred in (1) 

instructing the jury it must award at least one month’s rent to the 

Andersons if it found an abuse of access and (2) finding the Andersons, not

the Stefanoviches, were entitled to an award of attorneys’ fees and costs. 

I. The Issue Of Whether The Jury Was Properly Instructed On Abuse 

of Access Was Not Preserved For Appeal.

¶6 The superior court instructed jurors that, if they found the 

Stefanoviches entered the property unlawfully, “then you must determine 

the amount of actual damages to award the Andersons, which at a 

minimum must be at least one month’s rent.” The Stefanoviches urge that 

this instruction is contrary to the relevant statute, which provides:

If the landlord makes an unlawful entry or a 

lawful entry in an unreasonable manner or 

makes repeated demands for entry otherwise 

lawful but which have the effect of 

unreasonably harassing the tenant, the tenant 

 

2 The superior court granted the Stefanoviches’ motion for judgment as a 

matter of law on the Andersons’ claim for punitive damages, Ariz. R. Civ. 

P. 50, and the Andersons either abandoned or waived their other 

counterclaims. 

3 The current version of the applicable statute is cited when no revisions 

material to this decision have since occurred.
STEFANOVICH v. ANDERSON

Decision of the Court

4

may obtain injunctive relief to prevent the 

recurrence of the conduct or terminate the rental 

agreement. In either case, the tenant may recover 

actual damages not less than an amount equal 

to one month’s rent.

A.R.S. § 33-1376(B) (emphasis added).

¶7 A party may not “assign as error the giving or the failure to 

give an instruction unless that party objects thereto before the jury retires 

to consider its verdict, stating distinctly the matter objected to and the 

grounds of the objection.” Ariz. R. Civ. P. 51(a). Failure to object with 

particularity to a jury instruction generally results in waiver of the objection 

on appeal. See Duran v. Safeway Stores, Inc., 151 Ariz. 233, 234 (App. 1986); 

see also Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 419-20 (1988) 

(deeming waived appellant’s argument that jury instruction was error 

because appellant failed to object to the final instructions at trial).

¶8 The Stefanoviches do not cite to the record where they 

objected to the abuse of access instruction on the basis it misstated the law. 

Nor does this court’s review show such a timely objection in the record 

presented. In a motion for summary judgment filed more than a year before 

trial, the Stefanoviches argued the Andersons neither sought injunctive 

relief nor terminated the lease, meaning they were not entitled relief under 

A.R.S. § 13-1376. The Andersons’ response, however, was that they “did 

terminate the lease” and the superior court denied the motion for summary 

judgment without explanation. This motion for summary judgment did not 

set forth “distinctly” or “with particularity” any objection to what jury 

instructions would be appropriate at the close of the evidence at trial. Ariz. 

R. Civ. P. 51(a).

¶9 The Stefanoviches moved for judgment as a matter of law 

before the jury deliberated, see Ariz. R. Civ. P. 50, but did so on grounds 

unrelated to the abuse of access instruction. Further, the Stefanoviches

failed to provide this court with transcripts from the superior court 

proceedings, notwithstanding their burden to ensure “the record on appeal 

contains all transcripts or other documents necessary for us to consider the 

issues raised on appeal.” Baker v. Baker, 183 Ariz. 70, 73 (App. 1995); see Ariz. 

R. Civ. App. P. 11(b), (c). Accordingly, because the record does not show 

the Stefanoviches objected to the instruction, they have waived the issue on 

appeal.
STEFANOVICH v. ANDERSON

Decision of the Court

5

II. Attorneys’ Fees.

A. The Superior Court Did Not Err In Determining The 

Parties’ Claims Arose Out Of Contract.

¶10 The Stefanoviches argue the superior court erred in awarding 

attorneys’ fees to the Andersons because the claims on which they prevailed 

did not arise out of contract under A.R.S. § 12-341.01. The issues of contract 

interpretation and the interpretation and application of a fee statute are 

reviewed de novo. Great W. Bank v. LJC Dev., LLC, 238 Ariz. 470, 475 ¶ 9 

(App. 2015); Arizona Tile, L.L.C. v. Berger, 223 Ariz. 491, 498 ¶ 35 (App. 2010).

This court may affirm the superior court on any basis supported by the 

record, Leflet v. Redwood Fire & Cas. Ins. Co., 226 Ariz. 297, 300 ¶ 12 (App. 

2011), even one not relied upon by that court, Parkinson v. Guadalupe Pub. 

Safety Ret. Local Bd., 214 Ariz. 274, 277 ¶ 12 (App. 2007).

¶11 The lease agreement provided that “[t]he prevailing party in 

any dispute or claim between Tenant and Landlord arising out of or relating to 

this Agreement shall be awarded all their reasonable attorney[s’] fees and 

costs.” (Emphasis added.) “A contractual provision for attorneys’ fees will 

be enforced according to its terms.” Chase Bank of Ariz. v. Acosta, 179 Ariz. 

563, 575 (App. 1994); see also Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., 

L.L.C., 213 Ariz. 83, 90 ¶ 26 (App. 2006) (noting that contractual attorneys’

fees provision controls to the exclusion of a statute).

¶12 This litigation constituted, at the core, a dispute between the 

parties that related to the lease agreement. Indeed, the Stefanoviches’

pretrial statement conceded as much, noting “[t]his is a landlord-tenant 

dispute arising out of the rental of a furnished home.” On this record, and 

given this concession, the superior court did not err in determining the 

parties’ claims arose out of contract.
STEFANOVICH v. ANDERSON

Decision of the Court

6

B. The Superior Court Did Not Abuse Its Discretion In 

Determining The Andersons Were The Prevailing Parties.

¶13 The Stefanoviches argue that the superior court should have 

considered “percentage of success” or “totality of litigation” in determining 

the prevailing party, rather than the “net verdict rule.”4 The superior court

has discretion to determine who the successful party is for the purpose of 

awarding attorneys’ fees, and this court will not disturb that decision on 

appeal if there is any reasonable basis for it. Sanborn v. Brooker & Wake Prop. 

Mgmt., Inc., 178 Ariz. 425, 430 (App. 1994); see also Berry v. 352 E. Virginia, 

L.L.C., 228 Ariz. 9, 13 ¶ 21 (App. 2011). This court views the record in the 

light most favorable to upholding the superior court. Berry, 228 Ariz. at 13 

¶ 21.

¶14 Looking at the net judgment is one method of determining the 

successful party, see Trollope v. Koerner, 21 Ariz. App. 43, 47 (1973) (a party 

who obtains judgment in excess of setoff or counterclaim is “successful”), 

particularly in cases involving “competing claims, counterclaims and 

setoffs all tried together,” Ayala v. Olaiz, 161 Ariz. 129, 131 (App. 1989).

For cases involving claims and counterclaims in 

which both sides receive a favorable judgment 

in part, our supreme court has applied the ‘net 

judgment’ approach, by which the ‘prevailing 

party’ for attorneys’ fees purposes is the party 

that, when both sides are awarded judgments, 

is awarded a greater amount than the other 

party. 

Vortex Corp. v. Denkewicz, 235 Ariz. 551, 562 ¶ 40 (App. 2014) (citing Ocean 

West Contractors, Inc. v. Halec Constr. Co., 123 Ariz. 470, 473 (1979)).

¶15 Relying on Ocean West, the Stefanoviches urge the “net verdict 

rule” is inapplicable because this was not one action involving a claim and 

counterclaim on a contract, but rather two separate actions tried together. 

See Ocean West, 123 Ariz. at 473-74. Not only do the Stefanoviches parse 

Ocean West too finely, see generally Vortex, 235 Ariz. at 554 ¶ 5, 562 ¶ 40, the 

record does not support their premise. Among other things, without 

apparent objection by the Stefanoviches, the jury was instructed at the 

 

4 The parties do not suggest that “prevailing party” as used in the lease 

agreement should be construed differently than “successful party” under 

A.R.S. § 12-341.01.
STEFANOVICH v. ANDERSON

Decision of the Court

7

beginning of trial that “[t]his case is a landlord-tenant dispute arising out 

of the lease of a furnished home. . . .” and that “[t]he Stefanoviches filed this 

lawsuit alleging damages for unpaid rent, late fees, and property damage.”

The superior court had a reasonable basis to find the Andersons were the 

prevailing party. Accordingly, the court did not abuse its discretion in 

determining the Andersons were entitled to an award of attorneys’ fees and 

costs pursuant to the lease agreement.

CONCLUSION

¶16 The judgment is affirmed. The Stefanoviches’ request for an 

award of attorneys’ fees on appeal is denied. The Andersons are awarded 

their reasonable attorneys’ fees and costs on appeal pursuant to the lease 

agreement, upon their compliance with Arizona Rule of Civil Appellate 

Procedure 21.