IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

FOCUS POINT PROPERTIES, LLC; JEFF KANTOR, Plaintiffs/Appellees,

v.

CLEO JOHNSON; OAK ACRES TRUST, Defendants/Appellants.

No. 1 CA-CV 12-0766

Appeal from the Superior Court in Maricopa County

No. CV2010-015770

The Honorable Dean M. Fink, Judge

AFFIRMED IN PART, REVERSED IN PART

COUNSEL

Dickinson Wright/Mariscal Weeks, PLLC, Phoenix

By Timothy J. Thomason

Counsel for Plaintiffs/Appellee

Ridenour Hienton & Lewis, PLLC, Phoenix

By Patricia A. Premeau

Counsel for Defendants/Appellants
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

2

OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in 

which Judge Margaret H. Downie and Judge Michael J. Brown joined.

C A T T A N I, Judge:

¶1 This case involves litigation commenced under Arizona 

Revised Statutes (“A.R.S.”) § 32-3152(A),1 which authorizes a “qualified” 

licensed real estate salesperson to file a lawsuit to collect an unpaid real 

estate commission for services rendered. We are asked to address 

whether “qualified” in this context means something other than being 

licensed at the time services are provided, or alternatively, whether a 

court assessing whether someone is qualified under the statute should 

consider conduct unrelated to the services rendered but that calls into 

question whether the salesperson’s license should have been suspended or 

revoked. For reasons that follow, we affirm the trial court’s ruling that 

under § 32-3152(A), the only relevant inquiry is whether the person 

seeking to collect a commission was licensed at the time services were 

provided.

¶2 We are also asked to address whether an individual who 

signs a real estate contract on behalf of a trust, without specifying her 

representative capacity, may be held personally liable for breaching a 

provision in the contract that requires payment of a real estate 

commission. We reverse the trial court’s ruling on this issue and find that, 

under the circumstances presented here, a trustee who contracts on behalf 

of a trust cannot be held personally liable for breaching the contract.

FACTS AND PROCEDURAL BACKGROUND2

¶3 In May 2009, Cleo Johnson, who was the trustee of the Oak 

Acres Trust, hired Jeff Kantor of Focus Point Properties, LLC to sell 

 1 Absent material revisions after the relevant date, we cite a statute’s

current version.

2 We view the evidence in the light most favorable to upholding the 

jury’s verdict. Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 

69, ¶ 4, 3 P.3d 988, 989 (App. 1999).
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

3

commercial real estate in Apache Junction owned by the Trust. In June 

2009, Johnson signed a letter authorizing Kantor to speak about the 

property directly with the City of Apache Junction for planning purposes, 

and Kantor thereafter worked to assist Johnson with rehabilitating and 

selling the property.

¶4 Kantor prepared and signed a six-month listing agreement, 

dated October 15, 2009, to sell the property. Kantor reviewed the terms of 

the agreement with Johnson and gave it to her to sign.3

¶5 After discussing the agreement with Johnson, Kantor 

discovered it would take months to rehabilitate the property because of its 

blighted condition, including substantial issues with vagrancy, criminal 

activity, and debris. In several conversations with Johnson, Kantor 

explained that, given the increased time required to adequately 

rehabilitate the property, he would need a one-year listing agreement.

During those discussions, Johnson requested that Kantor expand the 

scope of the listing agreement to include leasing the commercial units on 

the property to generate money to pay property taxes. After multiple 

conversations with Johnson, Kantor prepared a revised one-year listing 

agreement to sell or lease the property. Johnson signed the new 

agreement on October 29, 2009.

¶6 Johnson did not read the new agreement before signing it. 

Although Kantor offered to explain the details of the agreement, Johnson 

indicated that, based on their previous discussions, she understood the 

new terms. Kantor gave Johnson a copy of the October 29 agreement at 

their next meeting, approximately one week after Johnson signed it.

¶7 Over the last three months of 2009, Kantor spent at least 25 

to 30 hours each week coordinating the rehabilitation of the property. 

During the listing period, Kantor procured a tenant, and in January 2010, 

he arranged for the tenant to meet with him and Johnson to discuss lease 

terms. Johnson failed to attend the meeting, but she nevertheless 

subsequently signed a lease with the tenant without letting Kantor know 

she was doing so.

¶8 On February 1, 2010, Focus Point sent Johnson/Oak Acres 

an invoice for a lease commission of $2,720. Johnson canceled the listing 

 3 Although Johnson promised to sign and return the agreement, she 

did not deliver a signed copy until after this litigation began.
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

4

agreement three days later. Focus Point then sent Johnson/Oak Acres a 

letter demanding $140,000, based on a liquidated damages provision in 

the agreement.4

¶9 When Johnson/Oak Acres refused to pay, Focus 

Point/Kantor filed a complaint in Maricopa County Superior Court 

alleging breach of contract, fraud, promissory estoppel, and unjust 

enrichment. Johnson/Oak Acres counterclaimed for fraudulent 

misrepresentation and inducement into contract, negligent 

misrepresentation, breach of fiduciary duty, and damages under 

Arizona’s vulnerable adult statute, A.R.S. § 46-456.

¶10 Both sides filed motions for summary judgment. After 

briefing and oral argument, the trial court denied Focus Point/Kantor’s 

motion for summary judgment and granted Johnson/Oak Acres’ motion 

for summary judgment on Focus Point/Kantor’s claims for promissory 

estoppel and unjust enrichment. The ruling left for trial Focus 

Point/Kantor’s claims for breach of contract and fraud, along with 

Johnson/Oak Acres’ counterclaims for fraudulent misrepresentation and 

inducement into contract, negligent misrepresentation, breach of fiduciary 

duty, and violations of the vulnerable adult statute.

¶11 Two days before trial was scheduled to begin, Johnson/Oak 

Acres filed an emergency motion to dismiss the complaint and vacate the 

trial based on information regarding Kantor’s real estate license history. 

Johnson/Oak Acres’ motion stated that in September 2006, Kantor had 

entered into a consent order with the Arizona Department of Real Estate 

(“ADRE”) for failing to timely disclose two DUI convictions. Pursuant to 

the consent order, ADRE placed Kantor under a two-year provisional 

license from September 2006 until September 2008 and required that he 

abstain from alcohol and illegal drugs, and that he submit to random 

testing. In May 2008, Kantor was convicted of another DUI offense, but he 

did not report the conviction to ADRE until September 28, 2011. In March 

 4 Paragraph 6(b) of the October 29 listing agreement provided that 

“[t]he same amount of sale or rental commission shall be due and payable 

to Broker if, without the consent of Broker, the Premises is withdrawn 

from this Listing, otherwise withdrawn from sale or rental or rented, 

transferred, or conveyed by Owner.” Paragraph 6(g) provided that “[i]f 

completion of a sale or rental is prevented by default of Owner, or with 

the consent of Owner, the entire sale or rental commission, as appropriate, 

shall be paid to Broker by Owner.”
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

5

2012, while ADRE’s investigation into that report remained pending, 

Kantor voluntarily surrendered his real estate license.

¶12 Johnson/Oak Acres’ motion to dismiss asserted that if 

Kantor had properly disclosed his DUI conviction, he would not have 

held a real estate license when he provided services to Johnson/Oak 

Acres, and, therefore, he was not entitled to a commission. The trial court 

denied the motion, reasoning that because Kantor was licensed at the time 

he provided the services at issue, the fact that he had committed an act 

that might have, or even should have, resulted in the loss of his license 

was not relevant.

¶13 The case proceeded to trial, and the jury found in favor of 

Focus Point/Kantor on their breach of contract and punitive damages 

claims, but against them on their fraud claim. The jury ruled against 

Johnson/Oak Acres on all of their counterclaims.

¶14 In June 2012, Johnson/Oak Acres filed a motion for 

judgment as a matter of law and a motion for new trial. Among other 

arguments, Johnson/Oak Acres asserted that Kantor should not have been 

permitted to maintain his lawsuit for a real estate commission because of 

his failure to disclose his violation of the ADRE consent order; the jury’s 

verdict awarding punitive damages arising from a breach of contract 

claim was not permitted by law; and the jury’s verdict awarding damages 

against Johnson in her individual capacity was not factually or legally 

supported. The trial court vacated the award of punitive damages but 

affirmed the remaining verdicts. The court entered judgment against 

Johnson/Oak Acres for compensatory damages in the aggregate sum of 

$140,000 plus interest, and awarded Focus Point/Kantor their attorney’s 

fees in the amount of $39,000 plus interest, and costs in the amount of 

$2,511.26 plus interest.5

¶15 Johnson/Oak Acres timely appealed. We have jurisdiction 

under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-

120.21(A)(1) and -2101(A)(1).

 5 The compensatory damages amount was based upon the loss of a 

four percent commission on the list price of $3.5 million. Johnson/Oak 

Acres have not challenged on appeal the amount of the award.
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

6

DISCUSSION

¶16 Johnson/Oak Acres raises three arguments on appeal, 

asserting that (1) Kantor did not have standing under § 32-2152(A) to 

maintain a lawsuit for a real estate commission, (2) the trial court

improperly denied Johnson/Oak Acres’ motion for summary judgment 

on their breach of fiduciary duty claim, and (3) Johnson should not have 

been found to be personally liable for the real estate commission. We 

address each argument in turn.

I. Kantor’s Right to Sue for a Real Estate Commission.

¶17 Johnson/Oak Acres contend the trial court erred under 

A.R.S. § 32-2152(A) by ruling that Kantor could initiate and maintain a 

lawsuit for a real estate commission notwithstanding evidence that he 

violated Arizona law by not timely disclosing to ADRE that he had 

violated a prior consent order. Johnson/Oak Acres’ argument fails, 

however, because Kantor held an active Arizona real estate license at the 

time he earned the commission, and questions regarding whether 

Kantor’s license should have been revoked were collateral to the dispute

in this case.

¶18 We review de novo issues of statutory interpretation. Keenen 

v. Biles, 199 Ariz. 266, 267, ¶ 4, 17 P.3d 111, 112 (App. 2001). Here, we 

address the interplay between § 32-2152(A), which imposes qualifications 

for filing an action to collect a disputed real estate commission, and A.R.S. 

§ 32-2153(B), which details the Arizona Real Estate Commissioner’s duties 

regarding disciplining real estate licensees. Section 32-2152(A) provides:

An action for the collection of compensation earned may be 

maintained in the courts of the state by any broker or 

salesperson. To commence the action the complaint shall 

allege that the plaintiff was a qualified licensed broker or 

salesperson at the time the claim arose. Prior to hearing the 

action the court shall require the plaintiff to prove the 

alleged qualifications.

(Emphasis added.) Section 32-2153(B) provides in relevant part:

The commissioner may suspend or revoke a license, deny 

the issuance of a license, issue a letter of concern to a 

licensee, issue a provisional license or deny the renewal or 

the right of renewal of a license issued under this chapter 

when it appears that the holder or applicant has:
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

7

. . . .

2. Been convicted in a court of competent jurisdiction in this 

or any other state of a felony or of any crime of forgery, 

theft, extortion, conspiracy to defraud, a crime of moral 

turpitude or any other like offense.

¶19 Johnson/Oak Acres argue that although Kantor’s license 

had not been revoked at the time he performed services on Oak Acres’ 

behalf, he was not a “qualified” licensed salesperson under § 32-2152(A) 

because of his acknowledged violation of the consent order relating to his

prior DUI violations. Johnson/Oak Acres assert that the trial court’s 

ruling that Kantor had standing to initiate litigation renders insignificant 

the term “qualified” in § 32-2152(A). They argue that under that statute,

the trial court should have determined not only whether Kantor was 

licensed, but also whether he was a “qualified” licensee.

¶20 Viewing the statutory scheme as a whole, we conclude that 

the Legislature intended that a determination regarding whether a 

salesperson is qualified to obtain or maintain a license is to be made by the 

Real Estate Commissioner under § 32-2153(B). Although § 32-2152(A) 

requires a determination of whether the salesperson was a “qualified”

licensed salesperson at the time the claim for compensation arose, the 

more specific provision (§ 32-2153) detailing when and by whom a license 

should be suspended or revoked is controlling as to that issue. See Lange 

v. Lotzer, 151 Ariz. 260, 261, 727 P.2d 38, 39 (App. 1986) (“The law is well 

settled that a specific statute governs over a general statute on the same 

subject and will control.”).

¶21 Moreover, to allow a court to assess (under § 32-2152(A)) 

whether a salesperson’s license should have been suspended or revoked 

could potentially result in the court and the Real Estate Commissioner 

addressing identical facts and making conflicting factual findings. 

Additionally, under § 32-2153(B), the Commissioner is not required to 

suspend or revoke a real estate license based on specified facts; instead the 

Commissioner “may” suspend or revoke a license, or alternatively may 

determine to issue a letter of concern or impose other types of discipline 

upon finding that a real estate salesperson engaged in misconduct. Thus, 

permitting a court to determine whether a license should have been or 

should be revoked could similarly result in different factfinders reaching 

conflicting conclusions, even assuming agreement that the actions 

constituted misconduct.
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

8

¶22 Furthermore, permitting the type of inquiry Johnson/Oak 

Acres seek would result in potentially extensive collateral litigation of 

matters unrelated to the specific transaction at issue. Here, Johnson/Oak 

Acres do not assert that Kantor’s DUI conviction had any bearing on any 

of his dealings with Oak Acres or Johnson. Nor do they dispute that 

Kantor held an active real estate license when he performed work on 

behalf of the Trust. Thus, the trial court correctly excluded evidence of the 

DUI conviction as irrelevant, and properly left to the Real Estate 

Commissioner (in a different proceeding) the task of determining whether 

to revoke Kantor’s license or otherwise sanction him.6

¶23 Johnson/Oak Acres cite several cases in which courts 

declined to award commissions to real estate agents. But those cases 

involved real estate commissions sought by individuals who were not 

licensed at the time services were rendered. See, e.g., Mousa v. Saba, 222 

Ariz. 581, 586, ¶ 20, 218 P.3d 1038, 1043 (App. 2009) (stating that an 

unlicensed individual could not maintain an action for compensation for 

services that required a real estate license); Realty Execs., Inc. v. Northrup, 

King & Co., 24 Ariz. App. 400, 402–03, 539 P.2d 514, 516–17 (1975) (finding 

that a brokerage firm was barred from recovering a commission because 

the salesperson arranged for and signed a listing agreement on behalf of a 

brokerage firm during a period of time in which the salesperson was 

unlicensed). Because Kantor was undisputedly licensed at the time he 

provided the services at issue, those cases are not dispositive.

¶24 In sum, we agree with the trial court that a determination 

whether to suspend or revoke a real estate license is to be left to the Real 

Estate Commissioner, and that the court’s responsibility under § 32-

2152(A) is to determine whether the salesperson had a current license at 

the time services were performed.

II. Breach of Fiduciary Duty.

¶25 Johnson/Oak Acres argue that the trial court erred by 

denying their cross-motion for summary judgment regarding Kantor’s 

alleged breach of fiduciary duty and by imposing an additional element of 

 

6 Kantor surrendered his license in 2012, and the Commissioner 

apparently chose not to further pursue the matter, even though under § 

32-2153(E) the Commissioner could have proceeded with disciplinary 

proceedings notwithstanding Kantor’s surrender of his license.
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

9

intent into their breach of fiduciary duty claim. But the denial of 

summary judgment is generally not reviewable on appeal from a final 

judgment entered after trial. John C. Lincoln Hosp. & Health Corp. v. 

Maricopa County, 208 Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). 

Thus, Johnson/Oak Acres is not entitled to relief on this aspect of their 

claim.

¶26 Moreover, Kantor presented more than adequate evidence 

from which the jury could reject Johnson/Oak Acres’ allegations that 

Kantor failed to explain the changed terms in the second agreement before 

Johnson signed it, and that Kantor improperly placed his own financial 

interests above those of Johnson/Oak Acres. Kantor testified that he (1) 

discussed the terms of the October 15 listing agreement with Johnson, (2)

had multiple conversations with Johnson about the revised terms in the 

October 29 listing agreement and the reasons for the revisions, (3) asked 

Johnson if she wanted to discuss the terms of the October 29 agreement 

when he presented it to her for signature, and (4) provided Johnson a copy 

of the October 29 agreement, albeit a week later. Notwithstanding 

contrary testimony from Johnson, there was sufficient evidentiary support 

for the jury’s verdict in favor of Focus Point/Kantor on Johnson/Oak 

Acres’ breach of fiduciary duty claim.

¶27 Johnson/Oak Acres further argue that during oral argument 

on the motions for summary judgment approximately five months before 

trial, the court improperly commented that a person claiming a breach of 

fiduciary duty must prove intent. The court did not, however, instruct the 

jury on “intent” as an additional element of breach of fiduciary duty. The 

jury instructions relating to breach of fiduciary duty correctly stated that a 

real estate agent is required “to protect and promote the interests of the 

client, and to deal fairly with all parties to the transaction,” and further 

provided that an agent “who breaches the fiduciary duty owed to the 

client is not entitled to a commission.” Accordingly, because the jury 

instructions properly set forth the law regarding fiduciary duty, anything 

the court said during the summary judgment argument is irrelevant.

III. Jury Verdict Holding Johnson Personally Liable.

¶28 Johnson contends that the jury improperly found her 

personally liable, along with Oak Acres, for the real estate commission 

owed to Focus Point/Kantor. Johnson argues that the evidence presented 

at trial established that Kantor knew Oak Acres owned the property, and 

that the listing agreement was between the property owner and the 

broker. Thus, it was clear that Kantor was dealing with Johnson in her 
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

10

capacity as trustee. We agree that the contract at issue was between Oak 

Acres and the real estate broker, and that the evidence was thus 

insufficient to establish a basis for finding Johnson personally liable for 

breach of contract.

¶29 Paragraph 30 of the October 29 listing agreement expressly 

provided that the parties to the agreement were the “Owner and Broker,” 

and Focus Point/Kantor have never asserted that anyone other than Oak 

Acres owned the subject property. In the signature block of the 

agreement, “Oak Acres Trust-Cleo Johnson” was typed above the printed 

words “Print Name of Owner.” Johnson signed the document 

immediately below that designation and above the printed designation 

“Owner’s Signature.” Thus, although Johnson’s handwritten signature 

did not delineate the capacity in which she was signing, the signature 

block made clear that the document was to be signed by the property 

owner. Moreover, in an addendum that listed the assessor’s parcel 

numbers for the subject property and that was attached to the agreement, 

the signature block designated the signee as “Oak Acres Trust by Cleo 

Johnson” (emphasis added), and Johnson again signed only her name, 

clearly doing so in her representative capacity.

¶30 While settling jury instructions, Johnson’s counsel argued 

that the jury should not be instructed that Johnson could be held 

personally liable for breach of contract because “there’s only one way that 

she could have been signing [the agreement]. And that would be as 

trustee of the Oak Acres Trust.” The trial court determined that “at this 

point I think this is probably a jury question and not a question for the 

Court to decide through jury instructions.” The court thus allowed the 

jury to determine whether Johnson was acting in her individual or 

representative capacity (or both) when signing the listing agreement. The 

jury subsequently returned a verdict in favor of Focus Point/Kantor on 

their breach of contract claim, finding both Johnson individually and Oak 

Acres liable for breaching the contract.

¶31 After the verdict, Johnson filed a motion for judgment as a 

matter of law and a motion for new trial, asserting, among other 

arguments, that the verdict against her personally was not factually or 

legally supported. The court rejected that argument, finding that “[t]he 

meaning of the signature line ‘Oak Acres Trust – Cleo Johnson’ is also a 

matter for the jury as factfinder. [The jury] found that Ms. Johnson’s 

signature was intended to bind both the trust and her personally. Here 

too the Court must defer.”
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

11

¶32 Focus Point/Kantor argue that the typed line “Oak Acres 

Trust-Cleo Johnson” created an ambiguity regarding whether Johnson 

was signing in her individual or representative capacity (or both), and that 

we should thus uphold the jury’s finding that Johnson is personally liable 

for breach of contract. We recognize that if a contract is ambiguous, 

determining what the parties intended is a question of fact for the jury. 

See Pasco Indus., Inc. v. Talco Recycling, Inc., 195 Ariz. 50, 62, ¶ 52, 985 P.2d 

535, 547 (App. 1998). But here, there was no ambiguity regarding the 

parties to the contract, and Johnson’s signature appeared over a line that 

called for the owner’s signature.

¶33 Because the contract clearly specified that it was an 

agreement between the property owner and the broker, and because the 

signature block on the contract, coupled with the signature block on the 

addendum, made clear that Johnson signed on behalf of the owner, we 

conclude that the jury verdict holding Johnson personally liable for breach 

of contract must be set aside.

¶34 Moreover, holding Johnson personally liable would be 

inconsistent with finding liability against Oak Acres on the breach of 

contract claim because Johnson’s signature on the contract was the basis 

for establishing Oak Acres’ status as a party to the contract. In Valley 

National Bank, Sunnymead v. Cook, 136 Ariz. 232, 235–36, 665 P.2d 576, 579–

80 (App. 1983), this court rejected a claim that a person who signed a 

corporate check without specifying the capacity in which the check was

being signed could be held personally liable, along with the corporation, 

for the amount of the check:

Having secured a judgment on that basis against the 

corporate defendant, we are at a loss to see how he may now 

contend that appellant’s signature was on his individual 

behalf and not in a representative capacity. It must be one or 

the other. It cannot be both.

(Emphasis added, citation omitted.) Here, Johnson only provided one 

signature on the document, and Focus Point/Kantor’s breach of contract 

judgment against Oak Acres is based on that signature. Thus, Focus 

Point/Kantor are precluded from obtaining judgments for breach of 

contract against both Oak Acres and Johnson individually based on the 

same signature.

¶35 Focus Point/Kantor cite four cases from other jurisdictions 

for the proposition that Johnson can be held personally liable for the 
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

12

payment of their commission. Even were we to accept the reasoning of 

those cases, they are factually distinguishable. Two of the out-of-state 

cases found personal liability based on a separate personal guaranty. See

Schroeder v. Hunter Douglas, Inc., 324 S.E.2d 746, 747–48 (Ga. Ct. App. 

1984); Hope Petty Motors, Inc. v. Hyatt, 425 S.E.2d 786, 791 (S.C. Ct. App. 

1992). Here, Johnson did not personally guarantee Oak Acres’ obligations, 

and the document at issue did not reference any obligations of a 

guarantor. The third case did not reach the issue of whether a jury could 

properly conclude that a single signature bound the signer in both 

representative and individual capacities, finding instead that the litigant 

had waived its objection by failing to object before the trial court. See 

Griffin v. Associated Payphone, 534 S.E.2d 540, 543–44 (Ga. Ct. App. 2000). 

The fourth case reasoned that because corporate representatives had 

signed some documents that clearly specified the individuals’

representative capacity, their signatures on other documents without such 

a designation suggested they had signed those documents in their 

individual capacity. See First Union Nat’l Bank v. United States, 164 F. 

Supp. 2d 660, 664 (E.D. Pa. 2001). Here, Johnson consistently signed 

documents without designating a representative capacity, even when 

unequivocally acting as trustee of Oak Acres. See supra ¶ 29. Thus, the 

documents she signed do not reflect a conscious choice to sign in an 

individual, rather than representative, capacity.

¶36 Because the contracting party in this case was clearly the 

property owner (Oak Acres), and because Johnson’s sole signature was 

binding as to Oak Acres, we reverse the judgment against Johnson in her 

individual capacity.

IV. Attorney’s Fees and Costs.

¶37 The parties have requested their attorney’s fees and costs on 

appeal pursuant to the terms of the listing agreements and A.R.S. § 12-

341.01(A).

¶38 When a contract contains an attorney’s fees provision, we

will grant fees consistent with that provision. A. Miner Contracting, Inc. v. 

Toho-Tolani County Improvement Dist., 233 Ariz. 249, 261, ¶ 40, 311 P.3d 

1062, 1074 (App. 2013). Here, Paragraph 18 of the October 29 listing 

agreement provides for payment of attorney’s fees and costs:

In any action or proceeding to enforce any provision of this 

Listing, or for damages sustained by reason of its breach, the 

prevailing party shall be entitled to receive from the other 
FOCUS POINT/KANTOR v. JOHNSON/OAK ACRES

Opinion of the Court

13

party reasonable attorney’s fees, as set by the court or 

arbitrator and not by a jury, and all other related expenses, 

such as expert witness fees, fees paid to investigators and 

court costs.

¶39 Focus Point/Kantor have prevailed against Oak Acres on 

their breach of contract claim. Accordingly, pursuant to the terms of the 

contract, we grant Focus Point/Kantor their reasonable fees on appeal 

incurred as to Oak Acres upon their compliance with ARCAP 21. As the 

overall prevailing parties on appeal, Focus Point/Kantor are entitled to 

their costs upon compliance with ARCAP 21.

¶40 Although Johnson has prevailed on her claim that she is not 

personally liable, our holding also dictates that the agreement—including 

its attorney’s fees language—is not applicable to her personally. 

Accordingly, we look to A.R.S. § 12-341.01(A), rather than the contract 

provision, in determining whether to award attorney’s fees. Exercising 

our discretion under that statute, we decline to award Johnson fees.

CONCLUSION

¶41 For the foregoing reasons, we affirm the trial court’s 

judgment against Oak Acres, but reverse the judgment against Johnson.