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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STANLEY EICK, a single person, 

Plaintiff/Counterdefendant/Appellant/Cross-Appellee,

v.

DELTA MECHANICAL, INC., an Arizona Corporation

Defendant/Counterclaimant/Appellee/Cross-Appellant, 

CHROME, INC.; KITCHUKOV TRUST DATED JULY 16, 2009 and 

TODOR KITCHUKOV and MARIANA KITCHUKOV, 

Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 14-0565

Appeal from the Superior Court in Maricopa County

No. CV 2011-019532

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

The Brebner Law Firm, PC, Phoenix

By Bartlet A. Brebner

Counsel for Plaintiff/Counter-Defendant/Appellant/Cross-Appellee
2

Cheifetz Iannitelli Marcolini, PC, Phoenix

By Claudio E. Iannitelli, Jacob A. Kubert

Counsel for Defendants/Counter-Claimant/Appellees/Cross-Appellants

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

D O W N I E, Judge:

¶1 Stanley Eick appeals from: (1) an award of punitive damages 

to Delta Mechanical, Inc. (“Delta”); (2) a determination that he was not the 

successful party for purposes of taxable costs and jury fees; (3) the denial 

of his request for attorneys’ fees; and (4) the denial of prejudgment 

interest on certain sums. Delta, Todor Kitchukov, Mariana Kitchukov, 

Chrome, Inc., and the Kitchukov Trust Dated July 16, 2009 (“the Trust”) 

cross-appeal from the trial court’s award of prejudgment interest. For the 

following reasons, we affirm.

FACTS AND PROCEDRUAL HISTORY

¶2 Delta is owned by Todor Kitchukov, who is married to 

Mariana Kitchukov. Chrome, Inc. is a company wholly owned by 

Kitchukov. Kitchukov is a trustee and beneficiary of the Trust.1 

¶3 In 2008, Delta retained Eick to perform project management 

services. Delta gave Eick access to certain business credit cards. In 

August 2011, Delta became suspicious about purchases Eick made with a 

Home Depot gift card that was to be used for business-related purposes. 

Delta initiated an investigation and did not pay Eick for services

performed after August 8, 2011. On October 28, 2011, Eick obtained a cash 

advance in the sum of $5000 from Delta’s Wells Fargo credit card. 

 

1 References to “Kitchukov” in the singular are to Todor Kitchukov. 

We refer to the Kitchukovs, Chrome, and the Trust collectively as “the 

Property Owners.”
EICK v. DELTA, et al. 

Decision of the Court

3

¶4 Eick sued Delta for breach of contract, unpaid wages,

2 and 

unjust enrichment. Although he initially asserted several counts against 

the Property Owners, Eick ultimately proceeded against them only on his 

quantum meruit claims. Delta counterclaimed against Eick for 

conversion, civil racketeering, and fraud. 

¶5 A jury trial ensued. Before the case was submitted to the 

jury, the trial court granted judgment as a matter of law to Eick on Delta’s 

racketeering and fraud counterclaims. Delta’s conversion counterclaim 

was submitted to the jury. The jury rendered the following verdicts and 

special interrogatory answers:

Eick was an independent contractor, not a Delta employee. 

Delta owes Eick compensation in the sum of $7250. 

After offsetting the $5000 Eick obtained from Delta’s credit card, 

Delta owes Eick $2250 in compensation. 

Eick is awarded $750 on his quantum meruit claim against the 

Trust. 

Eick is awarded $1000 on his quantum meruit claim against 

Chrome. 

Eick is awarded $500 on his quantum meruit claim against the 

Kitchukovs. 

Delta is awarded $5000 in damages on its counterclaim against 

Eick. 

Delta is awarded $2251 in punitive damages against Eick. 

The compensation Delta owes Eick ($7250) includes amounts for 

work included in the quantum meruit awards — specifically, 

$1000 as to Chrome, $500 as to the Kitchukovs, and $750 as to 

the Trust. 

The net effect of the jury’s awards was a $1 verdict in favor of Delta. 

 

2 Eick alleged entitlement to treble damages on his wage claim 

pursuant to A.R.S. § 23-355(A). 
EICK v. DELTA, et al. 

Decision of the Court

4

¶6 Delta filed a post-trial application for attorneys’ fees and 

costs, contending it was the “net prevailing party” for purposes of

Arizona Revised Statutes (“A.R.S.”) sections 12-341 and 12-341.01. Eick 

filed a motion for remittitur regarding the compensatory and punitive 

damage awards to Delta and, in the alternative, requested a new trial.

Eick also sought an award of attorneys’ fees and costs, claiming he was 

the successful party. 

¶7 The trial court denied Eick’s motion. It deemed Delta the 

successful party, “though barely.” The court ordered Eick to pay jury fees 

and awarded Delta taxable costs under A.R.S. § 12-341.

¶8 After analyzing the factors enunciated in Associated 

Indemnity Corp. v. Warner, 143 Ariz. 567, 570 (1985), the court determined 

Eick was not entitled to a fee award under A.R.S. § 12-341.01(A). It also 

declined to award him fees under A.R.S. § 12-349, notwithstanding its 

dismissal of Delta’s fraud and racketeering counterclaims. The court did, 

however, award Eick $3060 in fees related to his defense of the 

racketeering counterclaim under A.R.S. § 13-2314.04(A), noting that the 

racketeering claim, “though not frivolous, was very thin.” The trial court 

awarded Delta prejudgment interest on the $5000 in conversion damages

and awarded Eick prejudgment interest on the $5000 wage claim. The 

court did not award Eick prejudgment interest on his other awards. 

¶9 Eick filed a motion for reconsideration, arguing he was the 

net judgment winner by roughly $65 once prejudgment interest was taken 

into account and was thus the successful party. Delta also sought 

reconsideration, arguing the court should deny all prejudgment interest as 

waived by both parties. The court denied both motions. Eick timely 

appealed, and Appellees timely cross-appealed. We have jurisdiction 

pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Punitive Damages

¶10 Eick contends Delta was not entitled to punitive damages 

because it failed to prove actual damages. Alternatively, he argues the

punitive damage award was constitutionally excessive. We review these 

issues de novo. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 

424, 436 (2001); Hall v. Lalli, 194 Ariz. 54, 57, ¶ 5 (1999).

¶11 “[T]he right to an award of punitive damages must be 

grounded upon a cause of action for actual damages.” Quiroga v. Allstate 
EICK v. DELTA, et al. 

Decision of the Court

5

Ins. Co., 151 Ariz. 127, 129 (App. 1986); see also Saucedo ex rel. Sinaloa v. 

Salvation Army, 200 Ariz. 179, 185–86, ¶ 21 (App. 2001) (“[C]ommon law 

mandates that a plaintiff suffer actual damages as a result of the 

underlying tort before a claim of punitive damages can be entertained.”). 

Failure to prove actual damages precludes an award of punitive damages. 

Fousel v. Ted Walker Mobile Homes, Inc., 124 Ariz. 126, 129 (App. 1979).

¶12 The jury was instructed as follows regarding Delta’s 

punitive damage claim:

If you find Mr. Eick liable to Delta Mechanical for 

conversion, you may consider assessing additional damages 

to punish Stanley Eick or to deter him and others from 

similar misconduct in the future. 

¶13 Contrary to Eick’s suggestion, the requirement for actual 

damages does not require that the party claiming punitive damages be the 

net winner after setoffs. It simply means that the “requisite intent and 

outrageous and egregious conduct must occur in tandem with the conduct 

giving rise to the injury in order to recover punitive damages.” Saucedo, 

200 Ariz. at 182, ¶ 13. As the trial court ruled, even if Appellees owed 

Eick more than $5000, “the jury properly found that it was conversion for 

[Eick] to pay himself $5,000 using gift or credit cards. [Eick] could not 

take that money to satisfy the debt any more than he could steal a truck 

from [Delta] to satisfy the debt.” 

¶14 As noted supra, the jury was instructed that if it found Eick 

liable for conversion, it could consider assessing punitive damages. The 

jury found Eick liable for conversion and awarded Delta $5000 in actual 

damages on that claim, thereby establishing the necessary predicate for an 

award of punitive damages. The subsequent setoffs do not negate the 

propriety of the punitive damage award.

¶15 Turning to Eick’s constitutional claim, we agree that due 

process principles limit the size of punitive damage awards. Nardelli v. 

Metro. Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 609, ¶ 83 (App. 2012). 

The United States Supreme Court has instructed courts to 

consider three guideposts when reviewing punitive 

damages awards: “(1) the degree of reprehensibility of the 

defendant's misconduct; (2) the disparity between the actual 

or potential harm suffered by the plaintiff and the punitive 

damages award; and (3) the difference between the punitive 
EICK v. DELTA, et al. 

Decision of the Court

6

damages awarded by the jury and the civil penalties 

authorized or imposed in comparable cases.” 

Security Title Agency, Inc. v. Pope, 219 Ariz. 480, 501, ¶ 94 (App. 2008)

(quoting State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 418 (2003)). 

¶16 However, Eick has not provided a trial transcript, which 

prevents any assessment of the reprehensibility of his conduct. When 

matters are not included in the record on appeal, we presume that the 

missing portions of the record would support the trial court’s judgment. 

State v. Zuck, 134 Ariz. 509, 513 (1982); State v. Rivera, 168 Ariz. 102, 103 

(App. 1990). Moreover, there is no acceptable bright-line ratio between 

compensatory and punitive damages because an appropriate punitive 

damage award is a fact-sensitive inquiry. See Nardelli, 230 Ariz. at 611, 

¶ 95. However, “single-digit multipliers are more likely to comport with 

due process, [and] a factor more than four comes ‘close to the line’ of 

constitutional impropriety.” Hudgins v. Sw. Airlines Co., 221 Ariz. 472, 491, 

¶ 57 (App. 2009). The multiplier in this case is just under one-half 

($2251/$5000 = 0.4502), which is well within the constitutionally 

permissible range. The record before us establishes no due process 

violation.

¶17 Finally, to the extent Eick argues on appeal that the jury was 

improperly instructed or that the court’s handling of the verdicts and 

special interrogatories was deficient in some respect, the lack of a trial 

transcript prevents review of whether such issues were properly 

preserved and whether the trial court responded appropriately. See 

Rivera, 168 Ariz. at 103 (“In the absence of a record to the contrary, we 

must presume that the trial court acted properly.”).

II. Taxable Costs

¶18 Eick next contends the trial court should have deemed him 

the successful party and awarded him taxable costs under A.R.S. § 12-341. 

Eick maintains he was the net judgment winner against Delta after 

prejudgment interest is considered and was wholly successful against the 

Property Owners.

¶19 The language of A.R.S. § 12-341 is mandatory, and the trial 

court has no discretion to deny costs to the successful party. Roddy v. Cty.

of Maricopa, 184 Ariz. 625, 627 (App. 1996). The court does, however, have 

discretion in determining the successful party. Democratic Party of Pima 
EICK v. DELTA, et al. 

Decision of the Court

7

Cty. v. Ford, 228 Ariz. 545, 549, ¶ 15 (App. 2012). We review a 

determination of the successful party for an abuse of discretion. Id. 

¶20 After acknowledging its discretion in determining the 

identity of the successful party, the trial court stated:

The monetary difference between what each party obtained 

is small: one dollar before calculation of prejudgment 

interest and $65.25 including it. But the jury clearly intended 

that Defendants would be considered prevailing. Although 

the court is not bound by that determination, it is persuaded 

by it. It is also persuaded by the fact that Plaintiff obtained 

substantially less in monetary damages than he sought. 

¶21 Looking at net judgment amounts 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). But the “net judgment rule” is not the only 

acceptable way of determining the successful party. See, e.g., McEvoy v. 

Aerotek, Inc., 201 Ariz. 300, 303, ¶¶ 12–13 (App. 2001) (successful party 

determination may be based on “success upon the merits, not upon 

damages”); Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 467 

(App. 1986) (“percentage of success” evaluation proper); Nataros v. Fine 

Arts Gallery of Scottsdale, Inc., 126 Ariz. 44, 49 (App. 1980) (approving 

“totality of the litigation presented to the trial court” assessment of 

successful party). Indeed, a contrary holding would gut the trial court’s 

well-established discretion, reducing the successful party determination to 

a mechanical, mathematical exercise. 

¶22 The trial court found that the jury “clearly intended” that

Appellees “be considered prevailing.” It characterized this factor as 

persuasive, and, coupled with the fact that Eick “obtained substantially 

less in monetary damages than he sought,” determined Delta was the 

successful party, even if just barely. We find no abuse of discretion. The 

trial judge who made that determination had presided over the case for 

over two years and was far better equipped than this Court to make the 

discretionary decision regarding the successful party. 

¶23 As to the Property Owners, Eick argues they “cannot be 

successful parties for purposes of A.R.S. § 12-341 because Eick obtained 

100% of the relief he sought against them, and they obtained no relief 
EICK v. DELTA, et al. 

Decision of the Court

8

against Eick.” Although a “party does not enjoy derivative success simply 

because he is lined up on the same side as a prevailing party,” Bishop v. 

Pecanic, 193 Ariz. 524, 531, ¶ 27 (App. 1998), we are not dealing here with 

simple positional alignment. The jury included the quantum meruit 

damage amounts in its award against Delta. The final judgment makes

Delta jointly and severally liable for the awards against the Property 

Owners. And the trial court factored in those awards in evaluating the net

effect of the monetary awards. Cf. Welch v. McClure, 123 Ariz. 161, 165 

(1979) (“The general rule is that total costs are taxed against defendants 

who are jointly and severally liable on the judgment.”). Given the unique

circumstances of this case, and based on the record before us, we discern 

no error in treating Delta and the Property Owners as a collective unit in 

assessing taxable costs and fees. 

¶24 Finally, jury fees are included in costs, and the unsuccessful 

party at trial is liable for them. See A.R.S. § 12-332(B); Roddy, 184 Ariz. at

627. Because Eick was not the successful party, the court did not err by 

ordering him to pay the jury fees.

III. Attorneys’ Fees

¶25 “In any contested action arising out of a contract, express or 

implied, the court may award the successful party reasonable attorney 

fees.” A.R.S. § 12-341.01(A). There is, however, no presumption that fees 

will be awarded in contract actions. Associated Indem. Corp., 143 Ariz. at

568–69. “An award of attorney’s fees under A.R.S. § 12-341.01 is 

discretionary with the trial court, and if there is any reasonable basis for 

the exercise of such discretion, its judgment will not be disturbed.” 

Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38 (App. 1990). 

¶26 As discussed supra, the trial court did not err in determining 

that Eick was not the successful party. Additionally, the court expressly 

analyzed the relevant factors in concluding that a fee award under A.R.S. 

§ 12-341.01 was inappropriate. We find no abuse of the court’s 

considerable discretion in denying Eick’s fee request. See Associated Indem. 

Corp., 143 Ariz. at 571 (“The question is not whether the judges of this 

court would have made an original like ruling, but whether a judicial 

mind, in view of the law and circumstances, could have made the ruling 

without exceeding the bounds of reason. We cannot substitute our 

discretion for that of the trial judge.”).
EICK v. DELTA, et al. 

Decision of the Court

9

IV. Prejudgment Interest

¶27 Eick’s final contention is that he should have been awarded 

prejudgment interest on the full $7250 for which Delta was held jointly 

and severally liable, not merely the $5000 for which it was solely liable. 

Entitlement to prejudgment interest is a matter of law that we review de 

novo. John C. Lincoln Hosp. & Health Corp. v. Maricopa Cty., 208 Ariz. 532, 

544, ¶ 39 (App. 2004).

¶28 Prejudgment interest on a liquidated claim is a matter of 

right. Fleming v. Pima Cty., 141 Ariz. 149, 155 (1984). “A claim is 

liquidated if the evidence furnishes data which, if believed, makes it 

possible to compute the amount with exactness, without reliance upon 

opinion or discretion.” Ariz. Title Ins. & Trust Co. v. O'Malley Lumber Co., 

14 Ariz. App. 486, 496 (1971); see also Peterson Constr., Inc. v. Ariz. State 

Carpenters Health & Welfare Trust Fund, 179 Ariz. 474, 485 (App. 1994) 

([P]laintiff must “provide a basis for a precise calculation that would make 

the amount of damages readily ascertainable by reference to an agreement 

between the parties or through simple computation.”).

¶29 As Appellees note, our record includes no evidence which, if 

believed by the trier of fact, made it possible to compute with exactness

the amount Eick was owed for work he performed at the properties 

owned by the Kitchukovs, Chrome, and the Trust or the accrual date for 

those claims. The joint pretrial statement concedes Eick performed some 

work at those locations, but we have no evidence establishing when 

compensable work (i.e., work subject to the jury awards) was performed 

or how Eick was to be compensated for those services.

3 See, e.g., John C. 

Lincoln, 208 Ariz. at 544–45, ¶¶ 39, 44 (noting that claims for services “to 

be paid for at an agreed rate” may be liquidated and observing that 

plaintiffs “provided a specific method of calculation and the requisite 

data” to allow ascertainment of exact amount owed); Fairway Builders, Inc. 

v. Malouf Towers Rental Co., 124 Ariz. 242, 264 (App. 1979) (evaluating trial 

testimony to determine propriety of prejudgment interest and concluding 

it provided “a basis for precisely calculating the amounts claimed for extra 

 

3 Contrary to Eick’s suggestion, allegations in pleadings are not 

evidence. See Bank of Yuma v. Arrow Constr. Co., 106 Ariz. 582, 585 (1971). 
EICK v. DELTA, et al. 

Decision of the Court

10

work”). We therefore find no error in the trial court’s prejudgment 

interest awards.

4

CONCLUSION

¶30 We affirm the judgment of the superior court. We deny 

Eick’s request for an award of attorneys’ fees on appeal pursuant to A.R.S. 

§ 12-341.01 because he is not the successful party. We further deny Eick’s 

request for a fee award as a sanction for a frivolous cross-appeal. 

Appellees request a fee award under A.R.S. §§ 12-341.01 and 12-349. 

Although we disagree with the substantive merits of Eick’s appeal, we 

cannot say that it was pursued in violation of A.R.S. § 12-349. In the 

exercise of our discretion, we deny Appellees’ fee request premised on 

A.R.S. § 12-341.01. However, Appellees are entitled to recover their 

taxable costs on appeal upon compliance with ARCAP 21.

 

4 Although the cross-appeal challenges the prejudgment interest 

awards, Delta indicates we need not reach the cross-appeal if we affirm 

the successful party determination — something we have done.