Green Cross v. Mangisi ( 2024 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GREEN CROSS MEDICAL, INC., an Arizona non-profit corporation,
Plaintiff/Appellee,
v.
CARYN MANGISI, Trustee of the John V. Gally Family Protective Trust,
dated January 11, 1993, Defendant/Appellant.
No. 1 CA-CV 23-0692
FILED 10-08-2024
Appeal from the Superior Court in Navajo County
No. S0900CV201200208
The Honorable Joseph Samuel Clark, Judge
AFFIRMED
COUNSEL
Aspey Watkins & Diesel, PLLC, Flagstaff
By Whitney Cunningham, Caitlin Rynn
Counsel for Plaintiff/Appellee
Hunter, Humphrey & Yavitz, PLC, Phoenix
By Randall S. Yavitz, Isabel M. Humphrey
Counsel for Defendant/Appellant
GREEN CROSS v. MANGISI
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.
B A I L E Y, Judge:
¶1 Caryn Mangisi, Trustee of the John V. Gally Family Protective
Trust, dated January 11, 1993 (“the Trust”), appeals the superior court’s
judgment awarding $3,565,000 in damages, along with attorneys’ and
expert witness fees and accruing interest, to Green Cross Medical, Inc.
(“Green Cross”). We affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In April 2012, John Gally, in his capacity at the time as Trustee
of the Trust, entered a lease agreement to allow Green Cross to cultivate
and dispense medical marijuana on commercial property held by the Trust
in Winslow, Arizona (“the Property”). The lease allowed Green Cross to
lease the Property until it obtained a dispensary operating license from the
Arizona Department of Health Services (“ADHS”). After issuance of the
license, the lease provided for a three-year term and an additional three-
year tenant’s renewal option.
¶3 The Property was one of only two parcels within the Winslow
Community Health Analysis Area (“CHAA”) appropriately zoned for a
medical marijuana dispensary. Another entity seeking an operating license
from ADHS, The Medicine Room (“TMR”), obtained permission from the
owner of the other property. A few weeks after entering the lease
agreement, Green Cross received a letter from Gally, through Gally’s
attorney, Kathryne Ward, stating that Gally and the Trust were unilaterally
revoking the lease. The Property’s locks were changed, and from then on,
Green Cross could not access the Property.
1 We take portions of the facts and procedural history from this court’s prior
memorandum decision and opinion involving the parties. See Green Cross
Med., Inc. v. Gally (“Green Cross I”), 1 CA–CV 12–0610, 2013 WL 5435817(Ariz. App. Sept. 26, 2013) (mem. decision); Green Cross Med., Inc. v. Gally
(“Green Cross II”), 242 Ariz. 293 (App. 2017) (review denied Sept. 12, 2017).
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¶4 Green Cross filed a complaint against Gally, as Trustee of the
Trust, for breach of contract and motions for a temporary restraining order
(“TRO”) and preliminary injunction. Gally argued he was required to
revoke the lease because a prior month-to-month lessee—a sister company
to Compassionate Care Dispensary (“CCD”), which also wanted to operate
a medical marijuana dispensary on the Property—allegedly had a superior
interest in the form of an option to purchase the Property.2 The superior
court issued the TRO and later the preliminary injunction, barring Gally
and the Trust from revoking the lease and taking possession of the Property
pending final determination of the action. Gally did not restore Green
Cross’s possession of the Property, however, and in July 2012, he appealed
the preliminary injunction.
¶5 Green Cross had applied with ADHS to be awarded the single
Winslow dispensary license, but given its limited funds and the uncertainty
over the lease’s status, Green Cross instructed ADHS to assign its sole
$150,000 “proof of deposit” to the Kingman dispensary lottery—a lottery
with more contestants and a significantly smaller chance of winning—
instead of the Winslow lottery.
¶6 In August 2012, the ADHS dispensary bingo-ball lottery
drawings took place. TMR won the Winslow dispensary lottery over CCD.
Green Cross did not win the Kingman dispensary lottery.
¶7 In September 2013, this court affirmed the preliminary
injunction in favor of Green Cross. See Green Cross I, 1 CA–CV 12–0610, at
*3, ¶¶ 13, 15.
¶8 On remand, the superior court granted Ward’s motion to
withdraw as counsel for Gally and the Trust, and the parties cross-moved
for summary judgment. Green Cross sought partial summary judgment on
liability for possible damages for the lease revocation; Gally and the Trust
argued the lease was illegal and therefore unenforceable under the Arizona
Medical Marijuana Act (“AMMA”), see Ariz. Rev. Stat. (“A.R.S.”) §§ 36–
2801 to –2822, and the federal Controlled Substances Act, see 21 U.S.C. §§
801 to 904. The superior court denied Green Cross’s motion and granted
Gally and the Trust’s motion, holding the lease violated both state and
federal law and was therefore void for illegality.
2 Ward, the attorney for Gally and the Trust, was stepmother of a
principal/owner of CCD.
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¶9 Green Cross appealed, and this court held the lease was not
void, either for being contrary to the AMMA or for being contrary to the
Controlled Substances Act, and “was enforceable at least for purposes of a
damages action for its breach.” Green Cross II, 242 Ariz. at 298, 300-01, ¶¶
15, 25, 29. We reversed and remanded for consideration of Green Cross’s
damages claim. Id. at 300-01, ¶¶ 25, 30
¶10 In May 2018, Gally and the Trust filed their answer, denying
Ward ever acted as their agent and positing she had “used” them “as an
unwitting tool” to further her family’s interests. They later moved for
summary judgment, arguing Green Cross could not show damages from
breach of the lease because Green Cross’s lottery ball would likely have
replaced CCD’s losing lottery ball in the Winslow drawing. Green Cross
responded that even had its application “replaced” CCD’s, the lottery ball
assignment was not guaranteed to be identical because ADHS randomized
their assignment to qualified dispensary applicants via a computer
program before the lottery. Thus, it was not a foregone conclusion Green
Cross would have been assigned the same lottery ball as CCD. Green Cross
also noted the Trust’s argument assumed CCD would not have been
included in the Winslow lottery absent the breach, despite what it termed a
“likelihood” it would have been. Finally, Green Cross argued the Trust’s
argument ignored the opinions of the parties’ experts, both of whom had
employed—at least in part—an ex-ante framework in calculating or
critiquing lost profit damages. This approach considered only information
known or knowable on the date of the breach and excluded subsequent
events, such as the lottery drawing, from the calculation. After oral
argument, at which the Trust’s attorney “agreed that either Ball ‘A’ or Ball
‘B’ could have been assigned to [Green Cross],” the court denied the
motion.
¶11 The superior court also denied the Trust’s subsequent motion
to exclude Green Cross’s claimed lost profits damages as speculative. In
2021, Gally passed away, and his daughter, Mangisi, replaced him as
Trustee.
¶12 In February 2022, the superior court conducted a two-day
bench trial on the damages issue. The court heard testimony from William
Brothers, Green Cross’s founder and principal owner; Mangisi; Dwight
Duncan, CFA, Green Cross’s expert witness on damages; and Timothy
Tribe, CPA/CFF, CFE, CICA, the Trust’s expert witness on damages.
¶13 In July 2022, the superior court issued a ruling supported by
findings of fact and conclusions of law—as requested by the Trust—
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Decision of the Court
awarding damages in favor of Green Cross and against the Trust for
$3,565,000. The court later entered judgment under Rule 54(c), Ariz. R. Civ.
P., in favor of Green Cross and against the Trust, awarding the above
damages, $95,024.87 in attorneys’ fees, and $49,866.25 in expert witness
fees, along with accruing interest. The court denied the Trust’s motion for
a partial new trial,3 and we have jurisdiction over the Trust’s timely appeal
under A.R.S. § 12-2101(A)(1).
DISCUSSION
I. The Trust’s Opening Brief
¶14 Green Cross argues that portions of the Trust’s opening brief
do not comply with Rule 13, ARCAP, because the Trust makes numerous
“uncited, and incorrect factual assertions” and engages in “editorializing
amounting to argument” in its introduction and statement of the case. See
ARCAP 13(a)(3)-(4). We agree with Green Cross’s characterization of the
Trust’s brief but decline to reject the Trust’s appeal on this basis, see Clemens
v. Clark, 101 Ariz. 413, 414 (1966); Lederman v. Phelps Dodge Corp., 19 Ariz.
App. 107, 108 (1973), and we rely on our record review for the necessary
facts, see Sholes v. Fernando, 228 Ariz. 455, 457, ¶ 2 n.2 (App. 2011); State Farm
Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1 (App. 1998).
II. Causation
¶15 The Trust argues Green Cross’s exclusion from the Winslow
lottery and its subsequent lost expectancy damages were not caused by its
breach of the lease but by subsequent independent acts of others—
including Ward and her family’s business interests, including CCD, and
Green Cross itself. In its opening brief, however, the Trust abandons any
argument concerning anyone except Ward, who the Trust characterizes as
having a “blatant conflict of interest.” The Trust concedes, as it must, that
an agency relationship existed between it and Ward but argues the court
erred in failing to recognize she was not only the attorney for Gally and the
Trust, but also the attorney for her family’s entities, including CCD.
3 The motion alleged Green Cross had improperly withheld disclosure
regarding Mr. Duncan. In its reply, the Trust abandoned that argument
and argued Green Cross’s expert witness testimony on damages was
inadmissible. After finding the Trust had filed “no motions, either before
or during trial, arguing [Green Cross’s] expert’s opinion on calculation of
damages should be excluded—except an argument it was speculative,” the
court denied the motion.
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Decision of the Court
¶16 We review findings of fact for clear error and conclusions of
law de novo. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). A superior
court’s findings of fact are binding on this court if supported by credible
evidence, and our inquiry is whether the court had before it evidence
reasonably supporting its action viewed in the light most favorable to
sustaining the findings; we will not reweigh conflicting evidence on appeal.
Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 72 (App. 1986).
¶17 The Trust acknowledges that “[g]enerally, whether agency
exists is a question of fact” but argues that “when the material facts are not
in dispute, the existence of such a relationship is a question of law for the
court to decide.” Escareno v. Kindred Nursing Ctrs. W., L.L.C., 239 Ariz. 126,
129, ¶ 6 (App. 2016) (citations omitted). Here, however, the argument is
unavailing, as the Trust seeks to characterize factual disputes as legal ones,
to introduce numerous contested “additional facts developed at trial,” and
to make other factual assertions that in some cases are simply arguments
couched as “facts” not accepted by the superior court.
¶18 The record contradicts the Trust’s attempt to paint itself as an
innocent victim. Gally was an experienced landlord and his previously
sworn testimony before the superior court was “intentionally very evasive
on cross-examination” due to his economic interests. See Green Cross I, 1
CA–CV 12–0610, at *2, ¶ 11. The record is clear that, after entering the lease
with Green Cross, Gally revoked it without cause and did so through his
attorney, Ward, who was acting in her capacity representing Gally and the
Trust. Then, one day before the TRO hearing, the Trust, through Gally,
signed an affidavit—later submitted to ADHS—declaring the Trust was
selling the Property to Ward’s company, Western Surety, and that the only
entity with rights to the Property was CCD, the company owned by Ward’s
stepson. The affidavit noted that permission for any other applicant—
Green Cross—“has been withdrawn.”
¶19 On June 28, 2012, the sale of the Property to Western Surety
closed. Purportedly, the sale was for $225,000, of which $220,000 was
carried as a loan from the Trust to Western Surety. Despite the sale being
subject to the rights of Green Cross under the lease, Western Surety notified
ADHS on July 18 that Green Cross lacked “landlord permission” to operate
a dispensary on the Property. That same day, ADHS notified Green Cross
its Winslow application was incomplete, partly because it did not have a
Documentation of Property Ownership form signed by Western Surety.
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¶20 Although the Trust suggests its liability ended with the sale
to Western Surety,4 Gally knew Green Cross and CCD intended to operate
medical marijuana dispensaries on the Property and knew of Ward’s
connections to CCD. It was foreseeable and predictable that Ward would
seek to oust Green Cross from the Property and use it for CCD, and Gally
helped achieve this result by selling the Property to a sister company of
CCD and signing documentation declaring that only CCD had the right to
use the Property as a dispensary. At no time before the lottery drawing did
Gally or the Trust disavow Ward as their agent, advise Green Cross they
had told her to “stand down,” or claim her interests were in any way at
odds with theirs. Further, Ward continued to represent them until April
2014, about twenty months after the lottery drawing and seven months after
this court affirmed the superior court’s preliminary injunction. A
reasonable trier of fact could infer Gally and the Trust were not taken
advantage of by Ward or CCD, as they claim, but were cooperating with
them. And the superior court found, “In the end, it was the specific actions
of the Trust and of it[s] attorney while acting for the Trust . . . that resulted
in ADHS’s rejection of [Green Cross’s] application in Winslow.” Gally and
the Trust’s acts prevented Green Cross from participating in the August
2012 Winslow dispensary lottery and directly caused Green Cross’s lost
expectancy damages.
III. Effect of the Actual Lottery Result
¶21 At trial, Green Cross argued that breach of the lease caused
both the improper inclusion of CCD in the Winslow lottery and its
exclusion from the Winslow lottery. Couching its argument as a legal
argument, the Trust argues that, as a matter of law, Green Cross cannot
recover “uncertain result” damages for a hypothetical two-ball drawing
involving Green Cross and TMR, because a two-ball drawing involving
CCD and TMR occurred, and the result is known—TMR won. The Trust
maintains the only effect of the breach is “that CCD’s application number,
rather than Green Cross’s application number, was associated on a
spreadsheet with the ultimately losing ping-pong ball.”5
4 The Trust later retrieved the Property through foreclosure after Western
Surety failed to pay the mortgage.
5 We disagree with Green Cross that the issue was not preserved for appeal.
The issue was raised before trial in the Trust’s motion for summary
judgment, in the Joint Pretrial Statement, and in the Trust’s post-trial
Proposed Findings of Fact and Conclusions of Law.
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¶22 Whether the superior court applied the correct measure of
damages is a mixed question of fact and law, which we review de novo. SDR
Assocs. v. ARG Enters., 170 Ariz. 1, 2 (App. 1991). Although a damages
expert may explain the factors they relied on and the methodology they
used as an adjunct to the factfinder, the superior court should not determine
an applicable legal standard through expert testimony. See generally Ryan
v. Napier, 245 Ariz. 54, 66, ¶¶ 51-52 (2018). The Trust, however, fails to
support its legal argument by citing any Arizona authority precluding the
methodology used by Green Cross’s damages expert, Mr. Duncan, and
adopted by the superior court, and we are aware of none.
¶23 “[D]amages are measured as of the date of the breach.” SDR,
170 Ariz. at 3 (citation omitted). “If a breach is of a promise conditioned on
a fortuitous event and it is uncertain whether the event would have
occurred had there been no breach, the injured party may recover damages
based on the value of the conditional right at the time of breach.”
Restatement (Second) of Contracts § 348(3) (1981).
¶24 Here, ADHS randomized not only the ultimate selection of
lottery winners but also the assignment of the lottery balls to qualified
dispensary applicants in each CHAA via a computer program before the
lottery. Thus, the lottery was not guaranteed to be identical, and it was not
a foregone conclusion that Green Cross would have been assigned the same
lottery ball as CCD. Accordingly, the superior court correctly found Green
Cross could have been assigned the winning ball had it participated in the
Winslow lottery.
¶25 Furthermore, the Trust’s “losing lottery ball” argument
ignores the opinion reports and testimony of both parties’ experts, who
agreed on the appropriate damages methodology to be applied in a case
such as this, which involves a lost opportunity. Mr. Duncan presented an
ex ante damages analysis as of the date of the breach based on what was
known or knowable at the time. Under an ex ante analysis, as Mr. Duncan
testified, the relevant information is “only what was known or knowable as
of the date of the bad act.” Thus, even a stolen losing lottery ticket is still
worth its expectation value—the probability of winning at the time of the
theft times the jackpot amount. The Trust’s expert, Mr. Tribe, agreed with
Mr. Duncan that an ex ante approach is a “commonly accepted”
methodology for determining damages that is “widely accepted in various
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courts”6 and that a probability adjustment is an appropriate way to
calculate damages in this case.
¶26 The Trust’s “losing lottery ball” argument is not supported by
applicable law, is inconsistent with how the dispensary certificate lottery
was conducted, is not supported by trial testimony, and contradicts its own
expert’s admissions.
IV. “Speculative” Lost Profits
¶27 The Trust argues Green Cross did not demonstrate its claimed
lost profits with “reasonable certainty.” We disagree.
¶28 We will not set aside findings of fact unless they are clearly
erroneous, and we give due regard to the superior court’s opportunity to
judge the credibility of witnesses. Ariz. R. Civ. P. 52(a)(6). When it aids in
understanding evidence or determining a fact in issue, a party may
generally present testimony by a qualified expert witness. See Ariz. R. Evid.
702. If substantial evidence supports a finding of fact, that finding is not
clearly erroneous, even if conflicting evidence exists. Castro v. Ballesteros-
Suarez, 222 Ariz. 48, 51-52, ¶ 11 (App. 2009). We do not reweigh the
evidence or substitute our evaluation of the facts, but review de novo the
superior court’s legal conclusions. See id. at 52, ¶¶ 11-12; Grubb & Ellis
Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12 (App. 2006).
The legal sufficiency of evidence is a question of law we review de novo. See
McBride v. Kieckhefer Assocs., 228 Ariz. 262, 265, ¶ 10 (App. 2011).
¶29 To recover damages for lost profits, Green Cross had to prove
(1) “[t]hat it is reasonably probable that the profits would have been earned
except for the breach,” (2) “[t]hat the loss of profits is the direct and natural
consequence of the breach,” and (3) that “[t]he amount of lost profits can be
shown with reasonable certainty.” RAJI (Civil) 7th Contract 19. “If future
lost profits are reasonably certain, any reasonable basis for determining the
amount of the probable profits lost is acceptable. However, the amount of
lost profits cannot be based on conjecture or speculation.” Id. “[D]oubts as
to the extent of the injury should be resolved in favor of the innocent
plaintiff and against the wrongdoer.” Gilmore v. Cohen, 95 Ariz. 34, 36
(1963). Moreover, “[o]nce the fact of lost profits is established . . . our courts
have not been as strict about the amount.” Felder v. Physiotherapy Assocs.,
215 Ariz. 154, 164, ¶ 47 (App. 2007); see also Earle M. Jorgensen Co. v. Tesmer
6 See SDR, 170 Ariz. at 3; Shah v. Skillz Inc., 320 Cal. Rptr. 3d 175, 196-97 (Cal.
Ct. App. 2024); Duncan v. TheraTx, Inc., 775 A.2d 1019, 1022 (Del. 2001).
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Mfg. Co., 10 Ariz. App. 445, 450 (1969) (citing cases). Thus, disputes over
“the evidence used to establish the amount of damages will go to the
‘weight of the evidence.’” Felder, 215 Ariz. at 164, ¶ 47 (citations omitted).
¶30 A new business is not precluded from recovering an award
for lost future profits. Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz.
174, 183-84 (App. 1984). “The evidence required to prove loss of future
profits depends on the individual circumstances of each case . . . .” Id. at
184. But the proponent must establish a “reasonable basis in the evidence
for the trier of fact.” Id.
¶31 Our review confirms that substantial evidence supports the
superior court’s lost profits damages award. The Trust’s assertions that
Green Cross lacked plans, experience, and financing are contradicted by the
record. The court’s findings of fact and conclusions of law discuss Green
Cross’s business plans, the experience of its principals, and its access to
cash, citing the record.
¶32 As to the expert testimony, the superior court found that “Mr.
Duncan reviewed pleadings, interviewed [Green Cross’s] principal, Bill
Brothers (placing his notes into his file), industry texts, scholarly articles,
qualified patient information within CHAA designations, trends from
mature markets in California and Colorado, medical marijuana published
data including studies of marijuana crop yields, and NAICS codes for
industry risk, among other data sources.” The court also found, “Relying
on his experience and research, Mr. Duncan evaluated service areas,
observed distances customers drive in other markets, calculated qualified
patients as percentage of population, deduced average spend by patients
and product pricing, summarized operating expense ratios, and performed
risk adjustments, including company specific risk adjustments.” The
record supports the court’s findings.
¶33 Additionally, Mr. Tribe endorsed Mr. Duncan’s principles
and methods and testified about the information and data that would
produce reliable expert testimony in determining Green Cross’s damages.
These included publications of technical, financial and industry data;
interviews with management; the expert’s own experience specific to the
business and the industry; and examination of mature markets like
California and Colorado, including consumption or usage data and pricing
data—the very things Mr. Duncan relied on in forming his opinions.
¶34 Also, in performing his work, Mr. Duncan determined a
discount rate he applied to his damages calculation—a rate meant to factor
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in various risks, including industry risks and company-specific risks. Mr.
Tribe made no changes to Mr. Duncan’s proposed discount rate, while
indicating he thought it was unnecessary. Within the damages framework
accepted by both parties, Green Cross presented substantial evidence,
mostly without any rebuttal from Mr. Tribe or the Trust. On this record,
Green Cross presented substantial evidence to prove its claimed lost profits
with “reasonable certainty.”7
V. Failure to Subtract Management Fees From “Profits”
¶35 The Trust argues the superior court erred in awarding lost
profits damages to Green Cross because Mr. Duncan admitted “essentially
all” profits would have been paid as management expenses and thus
“agreed” that such expenses should not be awarded as damages. We
discern no error.
¶36 The AMMA requires registered medical marijuana
dispensaries to be non-profit entities. See AOW Mgmt. LLC v. Scythian Sols.
LLC, 1 CA-CV 20-0699, 2022 WL 2813523, at *3, ¶ 16 (Ariz. App. July 19,
2022) (mem. decision) (citing A.R.S. § 36-2806). ADHS required certificate
applicants to submit proposed bylaws (including, inter alia, provisions for
operating the dispensary on a non-profit basis) and a proposed business
plan reflecting revenues not exceeding expenditures.
¶37 That said, a non-profit medical marijuana dispensary can be
a lucrative enterprise, but as a non-profit, it is distinguished from a for-
profit business corporation “primarily by the absence of stock or other
indicia of ownership that give their owners a simultaneous share in both
profits and control.” Id. at ¶ 14 (citation omitted). Receipts or profits
greater than operating expenses and applicable costs must be reinvested
back into the non-profit or donated to other charitable causes. Id. at ¶ 17.
¶38 The Trust’s argument appears to be based on conjecture about
how Green Cross would use and distribute its excess receipts or “profits.”
The Trust asserts Mr. Duncan “admitted” that profits for a non-profit
7 In denying the Trust’s pretrial motion to exclude Green Cross’s claimed
lost profits damages as speculative, the superior court advised, “If, after
[Green Cross] has been fully heard on the issue of lost profit damages, the
evidence is such that a reasonable jury could not have a legally sufficient
evidentiary basis to find lost profit damages, then [the Trust] can make a
Rule 50 motion for judgment as a matter of law.” The record does not
indicate the Trust made such a motion.
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Arizona medical marijuana dispensary are normally paid out as
management expenses to a management company—and thus cannot be
counted as profit. However, although Mr. Duncan testified that he was
aware of business models in which non-profits paid “essentially all the
profits” to a separate management company, he also made clear he was not
necessarily speaking about Green Cross, and he was aware of other
business models. Mr. Tribe, the Trust’s expert, testified that a profits
calculation for a non-profit would be “functionally” the same as for any
other entity. And Mr. Duncan’s damages calculation factored in expected
revenues and deducted both the cost of goods sold and operating expenses.
The remainder counted as “profit,” which the court awarded in this case.
The Trust’s argument does not challenge Mr. Duncan’s methodology or Mr.
Tribe’s testimony.
¶39 Further, although the Trust concedes non-profit entities can
prove lost profits, its argument suggests any profits should not inure to
Green Cross, a non-profit corporation. But when asked about this at trial,
counsel for the Trust conceded it was not “fair game to breach non-profit
contracts” and disputed any claim that Green Cross should be denied lost
profits damages because it is a non-profit corporation. Although non-
profits are limited as to how they may pay a separate management
company or allocate distributions, they may still create “profits.”
VI. Attorneys’ Fees and Costs on Appeal
¶40 Both sides request costs and attorneys’ fees on appeal under
A.R.S. § 12-341.01. The Trust is not the successful party, and we deny its
request. Green Cross is the successful party, and we grant its request for
taxable costs and attorneys’ fees in an amount to be determined upon
compliance with ARCAP 21.
CONCLUSION
¶41 The superior court’s judgment is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AGFV
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