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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COMMERCE REALTY ADVISORS, LTD, et al., 

Plaintiffs/Appellees,

v.

ZINKE INVESTMENTS LIMITED PARTNERSHIP, et al., 

Defendants/Appellants.

No. 1 CA-CV 16-0153

Appeal from the Superior Court in Maricopa County

No. CV2011-019472

The Honorable Arthur T. Anderson, Judge

AFFIRMED IN PART AND VACATED IN PART AND REMANDED

COUNSEL

Nye LTD, Scottsdale

By Richard Q. Nye, Benjamin J. Branson

Counsel for Defendants/Appellants

Coppersmith Brockelman PLC, Phoenix

By John E. DeWulf, Roopali Desai

Counsel for Plaintiffs/Appellees
COMMERCE et al. v. ZINKE et al.

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge Lawrence F. Winthrop and Judge James P. Beene joined.

T H U M M A, Judge:

¶1 Defendants Zinke Investments Limited Partnership and 

Bernard L. and Gloria J. Zinke (the Zinkes) appeal from a judgment, entered 

after a jury trial, awarding plaintiff CRA, LLC damages plus compound 

interest and attorneys’ fees. The Zinkes allege there was insufficient 

evidence for the jury to award damages, that compound interest is 

improper and that CRA was not the successful party. Because there was 

sufficient evidence for the jury to award damages, and the award of 

attorneys’ fees was proper, those portions of the judgment are affirmed. 

That portion of the judgment awarding compound interest, however, is 

vacated and this matter is remanded for the entry of an amended judgment 

awarding simple interest consistent with this decision.

FACTS1 AND PROCEDURAL HISTORY

¶2 For decades, the Zinkes operated a dairy farm on land they 

owned near Gilbert, Arizona. On November 4, 2003, the Zinkes entered an 

exclusive listing agreement (Agreement) with Commerce Realty Advisors, 

Ltd. (Commerce) for approximately 410 acres of land the Zinkes owned. 

Under the Agreement, the Zinkes were obligated to pay Commerce a 2.5

percent commission for the sale of any residentially-zoned property subject 

to the Agreement for, as relevant here, any “transaction commenced 

during” the five-year term of the Agreement. Under the Agreement, 

interest on any unpaid commission “shall accrue at the rate of eighteen 

percent (18%) per annum from the date due until paid.” On November 5, 

2008, Commerce assigned to CRA all its rights, privileges and interest 

under the Agreement.

 

1 On appeal, this court views the evidence in the light most favorable to 

upholding the jury’s verdict. Powers v. Taser Int’l Inc., 217 Ariz. 398, 399 n.1 

¶ 4 (App. 2007).
COMMERCE et al. v. ZINKE et al.

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¶3 In early 2008, the Zinkes began negotiating with Gilbert for its 

acquisition of some rights of way and, later, some parcels of property, 

including approximately 62 acres subject to the Agreement. The Zinkes did 

not inform Commerce of these negotiations. Gilbert’s program manager 

testified that the Zinkes asked to delay signing the sale documents because 

the Agreement was going to expire. Closing documents for the sale were 

not finalized until March 2009, and Gilbert paid the Zinkes $300,000 per 

acre for the 62 acres acquired. The Zinkes did not pay CRA or Commerce

any commissions for that sale.

¶4 CRA and Commerce later discovered the sale and 

unsuccessfully demanded that the Zinkes pay commissions under the 

Agreement. In November 2011, CRA and Commerce filed this action 

against the Zinkes, alleging breach of contract and breach of the covenant 

of good faith and fair dealing. On motion, the Zinkes obtained summary 

judgment against both CRA and Commerce. On appeal, this court affirmed 

as to Commerce but vacated and remanded as to CRA. In doing so, this 

court affirmed the superior court’s award of attorneys’ fees and costs 

against Commerce, but vacated the award against CRA.

¶5 On remand, the case went to a four-day jury trial in May 2015.

Nearly 50 exhibits were received in evidence and 11 witnesses testified at 

trial. Because the Agreement applied only to residential property that was 

sold, the parties presented conflicting evidence on the zoning of the 62 acres 

sold to Gilbert. One of CRA’s witnesses testified “[t]he current Town of 

Gilbert map indicates about 18 acres” of the 62 acres were rezoned 

commercial. Another testified the rezoned property could be “something 

less than a third” of the 62 acres, but that he “couldn’t say. It could be 20, it 

could be 18.” A Gilbert ordinance received in evidence described the land 

rezoned commercial as “approximately 30 acres.” There was, however,

testimony that the land described in the ordinance was “more than just Mr. 

Zinke’s property.”

¶6 At the close of the evidence, the Zinkes sought a judgment as 

a matter of law, arguing CRA “did not establish in their case [] the portion 

of the property that was zoned [] as non-residential,” and, therefore, “it’s 

not possible to calculate how much land [CRA] would be entitled to a 

commission on.” The court denied the motion, noting conflicting evidence 

and adding the issue “I think, is more appropriately [] saved for closing 

argument.”
COMMERCE et al. v. ZINKE et al.

Decision of the Court

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¶7 The Zinkes requested a final instruction directing the jury that 

it could not speculate and to limit deliberations to evidence presented to 

determine damages. The court rejected the instruction.

¶8 During deliberations, the jury provided the court a note that 

the jurors had “reached a consensus” but still needed “to calculate the 

interest,” asking “[c]an we have someone else do the calculation?” The 

court responded that the “verdict form does not require a calculated interest 

amount” and that the court would calculate the interest based on the jury’s 

findings. The jury returned a verdict in favor of CRA and against the 

Zinkes. It awarded damages to CRA of $219,169.84 with interest at 18 

percent per year from March 4, 2009 until paid.

¶9 CRA lodged a proposed form of judgment awarding 

compound interest, to which the Zinkes timely objected, arguing the 

interest should be simple. After hearing oral argument, the court denied the 

Zinkes’ objection and entered a final judgment using compound interest. 

Finding the jury verdict made CRA the prevailing party, the court awarded 

CRA $449,046 in attorneys’ fees under the Agreement and $9,211.06 in 

taxable costs. After numerous unsuccessful post-trial motions, including a 

motion for a new trial, the Zinkes appealed. This court has jurisdiction, 

following the entry of a final judgment pursuant to Arizona Rule of Civil 

Procedure 54(c)(2017)2 pursuant to Article 6, Section 9, of the Arizona 

Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) 

and -2101(A)(1). 

DISCUSSION

I. Sufficient Evidence Supports The Jury’s Award Of Damages.

¶10 This court will affirm the jury’s verdict if substantial evidence 

supports it. County of La Paz v. Yakima Compost Co., Inc., 224 Ariz. 590, 607 ¶ 

52 (App. 2010). “Substantial evidence is evidence which would permit a 

reasonable person to reach the [fact-finder’s] result.” In re Estate of Pouser, 

193 Ariz. 574, 579 ¶ 13 (1999). This court “will not disturb a jury’s damage 

award unless it is so unreasonable and outrageous as to shock the 

conscience of this court.” Acuna v. Kroack, 212 Ariz. 104, 114 ¶ 36 (App. 2006) 

(quotations and citations omitted). 

 

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

refer to the current version unless otherwise indicated.
COMMERCE et al. v. ZINKE et al.

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¶11 The damages issues the Zinkes raise on appeal center on one 

argument: that CRA was required to prove with mathematical certainty the 

precise number of acres subject to the Agreement. The Zinkes argue “there 

was no evidence in this case from which the jury could have found the 

acreage of land sold which was zoned either residential or commercial at 

the time of sale let alone evidence to the level of certainty required here.”

¶12 As CRA rightly points out, even under the Zinkes’ theory of 

how the jury calculated damages,3 the jury appears to have resolved in the 

Zinkes’ favor the disputed factual issue about the number of acres subject 

to the Agreement. See R & M Oxford Const., Inc. v. Smith, 172 Ariz. 241, 247 

(App. 1992) (“Conflicts of evidence are within the sole province of the trier 

of fact, as is the weight of the evidence and the reasonable inferences to be 

drawn therefrom.”). The Zinkes did not request special interrogatories 

asking the jury to specify how it reached damages or how many acres of 

land it found were subject to the Agreement. 

¶13 It is impossible to determine how the jury arrived at its 

verdict, “but, under the evidence presented in this case, the sum obviously 

can be justified.” Pioneer Constructors v. Symes, 77 Ariz. 107, 111 (1954). The 

jury was provided with a valid city ordinance (including a map) and 

conflicting evidence describing the rezoning and, even using the Zinkes’ 

calculations, the jury arrived upon a number more favorable to the Zinkes 

than they had argued at trial. This court will not disturb a jury’s verdict 

“[w]here there are sufficient facts for the jury to consider, and where the 

verdict on those facts can be justified under some theory of law.” Id.; County 

of La Paz v. Yakima Compost Co., Inc., 224 Ariz. 590, 608 ¶ 54 (App. 2010)

(noting assumptions underlying damage claim “had a basis in fact. 

Assessing their accuracy and reliability was a question of fact for the jury. 

Indeed, the jury may have rejected some of the assumptions as it failed to 

award the full amount of [claimant’s] calculated damages. The trial court 

did not err by refusing to order a new trial or remit the verdict on this 

basis.”); see also Hammontree v. Kenworthy, 1 Ariz. App. 472, 481 (1965)

 

3 The Zinkes speculate the jury found 29.223 acres were zoned residential 

by taking the verdict of $219,169.48, divided by 2.5 percent to yield a sales 

price of $8,766,793.60 that, at the established per acre price of $300,000, 

would yield 29.223 acres of residential land. Apart from the fact that this 

speculation is not supported by the jury’s answering a special 

interrogatory, at trial, CRA argued roughly 40 acres were residential and 

the Zinkes argued roughly 32.376 acres were residential. Therefore, even 

using the Zinkes’ calculations, the jury found damages more favorable to 

the Zinkes than they had argued at trial. 
COMMERCE et al. v. ZINKE et al.

Decision of the Court

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(evidence was sufficient to support judgment on property’s rental value 

where there “was no direct testimony as to its rental value,” but there was 

other relevant testimony, including “the approximate number of acres” of 

the property); Great W. Bank v. LJC Dev., LLC, 238 Ariz. 470, 482 ¶ 41 (App. 

2015) (“Reasonable certainty is therefore provided where there is ‘some 

reasonable method of computing [the] net loss.’”) (citation omitted). Given 

there is substantial evidence supporting the damages found by the jury, the 

superior court did not err in rejecting the Zinkes’ challenges to that verdict.

¶14 Similarly, the court did not err in refusing the Zinkes’ 

proposed jury instructions. On top of the fact that sufficient evidence 

supports the verdict, the court instructed the jury to “[d]etermine the facts 

only from the evidence produced in the court” and that it “should not guess 

about any fact.” The Zinkes have made no showing that, in addition to these 

legally-correct instructions, the superior court also was required to give 

their requested final instruction that the jury could not speculate and was 

required to limit deliberations to evidence presented to determine damages.

¶15 On this record, the Zinkes have shown no error in the jury’s 

damages award or in the jury instructions given.

II. The Award Of Compound Interest Was Error.

¶16 The Zinkes challenge the judgment awarding compound 

interest and argue that only simple interest was allowed, asserting 

compound interest does not apply to an interest rate specified by contract 

unless expressly stated. CRA counters that the Zinkes waived this 

argument by failing to object to its trial evidence proving damages. CRA

asserts “the only evidence before the jury on the parties’ understanding of 

how interest was to be calculated was . . . testimony [by a CRA 

representative], and the Zinkes’ objection” regarding interest “should have 

been made during trial,” but was not, and is therefore “untimely.”

¶17 The issue of whether interest is compound or simple is a

question for the court, not the jury, to decide. Indeed, both in the form of 

verdict and in answering the jury’s question, the superior court instructed 

the jury to determine damages, the rate of interest and the date from which 

interest was to accrue, but not whether interest was simple or compound. 

CRA did not object to this approach. Because the issue of whether interest 

is simple or compound was a matter for the court to decide, the time to 

address this aspect of interest was post-verdict, as the Zinkes did here.

Accordingly, the Zinkes did not waive the issue. See Am. Cont’l Life Ins. Co. 

v. Ranier Constr. Co., 125 Ariz. 53, 55 (1980) (noting waiver requires finding 
COMMERCE et al. v. ZINKE et al.

Decision of the Court

7

of intentional relinquishment of known right or conduct warranting such 

an inference; claimed waiver based on inaction must include evidence of 

acts inconsistent with intent to assert right).

¶18 In addressing interest, the Agreement simply states “[i]f any 

amount payable to Broker is not paid when due, Interest on the unpaid 

amount shall accrue at the rate of eighteen percent (18%) per annum from 

the date due until paid.” Neither the Agreement nor any persuasive 

evidence shows this interest provision contemplated compound interest.

See Cherokee Nation v. United States, 270 U.S. 476, 490 (1926) (“The general 

rule, even as between private persons, is that, in the absence of a contract 

therefor or some statute, compound interest is not allowed to be computed 

upon a debt.”); Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., 124 

Ariz. 242, 267 (App. 1979) (declining to award compound interest in 

absence of express agreement to the contrary); see also Westberry v. Reynolds, 

134 Ariz. 29, 34 (App. 1982) (construing statute for interest on legal 

indebtedness to require the application of simple interest unless a contract 

expressly provides for compound interest).

¶19 In arguing to the contrary, CRA relies on its disclosures and 

witness’ trial testimony about damages, a number that was presumably 

reached using compound interest. CRA’s complaint, designed to place the 

Zinkes on notice of its claims, alleged a single daily interest accrual rate, 

which by definition implies simple interest. Although later amended, at no 

time did CRA’s pleading seek compound interest. CRA’s disclosures do not 

constitute evidence of the parties’ intent in the Agreement. Moreover,

CRA’s witness did not testify that the damages claimed included 

compounded interest and did not offer any evidence as to whether the 

parties intended in the Agreement for interest to be compound. These 

vagaries do not serve as evidence that the parties intended interest to be 

compound in the Agreement.

¶20 Given that absence of proof, and given the case law stating 

that interest is simple unless shown or agreed upon to the contrary, the 

judgment awarding compound interest was in error, and that portion of the 

judgment is vacated and remanded.
COMMERCE et al. v. ZINKE et al.

Decision of the Court

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III. Attorneys’ Fees.

¶21 The Zinkes challenge the superior court’s award of attorneys’ 

fees to CRA as the prevailing party. Under the Agreement, “the prevailing 

party shall be entitled to recover its reasonable attorneys’ fees.” First the

Zinkes argue that the judgment should have been entered in their favor, not 

CRA, meaning the Zinkes were the prevailing parties eligible for an award 

of fees. Because this court has rejected those arguments, the Zinkes’ 

argument they should be the prevailing party similarly fails.

¶22 The Zinkes next claim the fees awarded to CRA were 

excessive. The Zinkes note that Commerce and CRA have been represented 

by the same attorney throughout the litigation; that the Zinkes prevailed on 

summary judgment against Commerce and were awarded attorneys’ fees 

and that the superior court, after trial against CRA, “awarded CRA all fees 

incurred throughout this entire lawsuit, including those incurred on behalf 

of Commerce.”

¶23 The Zinkes’ factual predicate –- that the superior court’s 

award of fees to CRA “include[ed] those incurred on behalf of Commerce” 

–- is not supported by the record. Indeed, the Zinkes provide no record 

citation supporting that argument. It is true that, given the judgment in 

favor of the Zinkes against Commerce in the prior appeal, this case has 

resulted in a situation where: (1) the Zinkes are the prevailing party with 

an award of fees in their favor for the claims by Commerce and (2) CRA is 

the prevailing party with an award of fees in its favor for its similar claims 

against the Zinkes. But to the extent those awards are anomalous, it is 

because they are the product of claims involving at least one different party.

¶24 The Zinkes’ judgment against Commerce and CRA was for 

$101,697 in attorneys’ fees. Although the portion of that judgment against 

CRA was vacated, the Zinkes continue to seek a judgment against 

Commerce for that exact same amount: $101,697. Thus, by their own 

conduct, the Zinkes appear to concede that the amount of fees incurred 

before the first appeal does not turn on whether Commerce, CRA or both 

were parties to the litigation.
COMMERCE et al. v. ZINKE et al.

Decision of the Court

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¶25 Comparing the magnitude of the claims for attorneys’ fees 

similarly shows there was no error here. The Zinkes’ judgment against 

Commerce was for $101,697 in attorneys’ fees.

4 Because Commerce was not 

the successful party, it filed no application for an award of attorneys’ fees, 

so the amount of fees it incurred is not set forth in the record. If, however, 

the $101,697 the Zinkes were awarded against Commerce is a proxy for the 

fees Commerce incurred, the superior court’s award here appears to have 

accounted for that work.

¶26 After trial, CRA requested an award for attorneys’ fees 

against the Zinkes that, excluding mediation costs, totaled $542,027. After 

full briefing and argument, the superior court awarded CRA $449,046 in 

fees against the Zinkes. This award was $92,981 less than the amount CRA 

requested. That difference approximates (although is slightly less than) the 

amount the Zinkes were awarded against Commerce. On this record, the 

superior court properly could have exercised its discretion to conclude CRA 

would have incurred $8,716 in attorneys’ fees up to that point regardless of 

Commerce’s involvement. In any event, these differences provide no 

support for the Zinkes’ argument that CRA was awarded fees that, in fact, 

the Zinkes were awarded against Commerce. 

¶27 Finally, even if not discounted, the superior court could have 

concluded that the legal work performed for both CRA and Commerce up 

through the mandate in the first appeal would have been essential for CRA 

regardless of whether Commerce was involved. On this additional basis, 

the Zinkes have not shown the superior court’s award of fees in favor of 

CRA was in error. See Pettay v. Ins. Mktg. Services, Inc., 156 Ariz. 365, 368

(App. 1987) (noting superior court “has broad discretion in fixing the 

amount of attorney’s fees”); State Farm Mut. Auto. Ins. Co. v. Arrington, 192 

Ariz. 255, 261 ¶ 27 (App. 1998) (noting fee award will not be disturbed if 

supported by “any reasonable basis”).

¶28 The Zinkes and CRA request attorneys’ fees and costs on 

appeal pursuant to Arizona Rule of Civil Appellate Procedure 21 and the 

Agreement. Because they are not the prevailing parties on appeal, the 

Zinkes’ request for fees and costs is denied. CRA’s request for an award of 

reasonable attorneys’ fees and costs incurred on appeal is granted, 

 

4 Although the memorandum decision on appeal awarded the Zinkes’ 

attorneys’ fees they incurred on appeal involving Commerce, no such 

application was made and no fees were awarded in that appeal.
COMMERCE et al. v. ZINKE et al.

Decision of the Court

10

contingent upon its compliance with Arizona Rule of Civil Appellate 

Procedure 21.

CONCLUSION

¶29 That portion of the judgment for CRA awarding compound

interest is vacated; the remainder of the judgment is affirmed and this 

matter is remanded for the entry of an amended judgment awarding simple 

interest consistent with this decision.