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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   JACE FRANK EDEN, Plaintiff/Appellant,

                                         v.

GERALDINE A. DEUBLEIN, Trustee of the Geraldine A. Deublein Living
   Trust dated August 10, 2005; CATTLEMEN’S, LLC; and TIM and
             TIFFANY CYWINSKI, Defendants/Appellees.

                              No. 1 CA-CV 15-0854
                                FILED 3-9-2017


             Appeal from the Superior Court in Navajo County
                         No. S0900CV201400435
                  The Honorable Dale P. Nielson, Judge

                                   AFFIRMED


                                    COUNSEL

Jace Frank Eden, Show Low
Plaintiff/Appellant In Propria Persona

Moore Law Firm PLLC, Show Low
By Nicholas D. Patton
Counsel for Defendants/Appellees
                       EDEN v. DEUBLEIN et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1          Jace Frank Eden appeals from an order dismissing his civil
complaint on the basis of res judicata. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Geraldine Deublein, as Trustee of the Geraldine Ann
Deublein Living Trust (“Deublein”), sued Branding Iron Plaza, LLC, and
Stan and Debi Jackson — lessees of a restaurant located on the LLC’s
property.1 Deublein owned property adjacent to the LLC’s, where she too
operated a restaurant. Deublein alleged the LLC was interfering with her
use of an easement.

¶3            The superior court held an evidentiary hearing to consider
Deublein’s request for a preliminary injunction. On November 12, 2013,
the court issued a written ruling, stating, in pertinent part:

            In July 1955, “three separate easements were conveyed and
             recorded by and between the predecessors in interest to the
             properties at issue. The three owners of the properties, by
             three separate conveyances, granted each other easements
             for ‘drive-way purposes’ and they specifically retained for
             themselves the right to use the land conveyed for ‘drive-way
             purposes and for access to their own property for repairs or
             additions to utilities.’ The easements all specifically state
             that they run with the land.”

            Deublein historically used the easement “for drive-way
             purposes to access the back of [her] restaurant for delivery
             vehicles and garbage trucks.”

1      We refer to Branding Iron Plaza, LLC and the Jacksons collectively
as “the LLC.”



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                        EDEN v. DEUBLEIN et al.
                          Decision of the Court

             Deublein sold her property to the LLC in 2006. The LLC
              ceased using the easement for deliveries and built an outside
              dining area that “completely blocks off the easement access
              to the back of [Deublein’s] restaurant for receiving
              deliveries.”

             After the LLC defaulted on its purchase loan, foreclosure
              proceedings ensued, and Deublein resumed operation of her
              restaurant.

¶4            The court issued a preliminary injunction, ordering the LLC
to “remove the structures and outside dining area blocking the easement
within 30 days of the date of this signed order.” Failure to comply, the
court ruled, “could result in contempt of court, additional sanctions . . .
and/or an order authorizing the Plaintiff to employ the appropriate
services to remove the structures with the [LLC] being responsible for the
costs of removal and storage or disposition of the material.”

¶5           After the injunction issued, Deublein filed a “Motion for
Judgment on the Record.” The LLC failed to respond, and the court
granted the motion, stating:

      Rule 7.1(b) states that if the opposing party does not file an
      answering memorandum or response, the Court may deem
      the failure to respond as a consent to granting the motion. In
      this case, the motion for judgment on the record should be
      granted not only because [the LLC] did not respond, but also
      because it absolutely has merit and is supported by the
      evidence and the law.

The superior court subsequently issued an order: (1) “[a]djudging the
Easements as recorded . . . to be valid and of full force and effect;” (2)
“[q]uieting title to the Easements” in Deublein; and (3) “issuing a
permanent injunction restricting [the LLC] from taking any steps to
obstruct or otherwise interfere with [Deublein’s] use and maintenance of
the easement.” Eden filed a notice of appeal on behalf of the LLC. This
Court directed the LLC to appear through counsel, and when it failed to
do so, the appeal Eden filed was dismissed.

¶6           On August 6, 2014, Eden filed a “Complaint of Forcible
Entry and Detainer and Declaratory Judgment and Permanent Injunction
and Quiet Title” against Deublein and related defendants (collectively,
“Appellees”). Appellees moved to dismiss, arguing Eden’s action was



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                         EDEN v. DEUBLEIN et al.
                           Decision of the Court

barred by the doctrine of res judicata. Eden opposed the motion, asserting
he was not a party to the earlier litigation, that action was not resolved on
the merits, and his claims were “of [a] different nature” from those
decided in the earlier proceedings. The superior court granted Appellees’
motion to dismiss, stating, in pertinent part:

       [T]he Court ruled against [Eden] in a matter that concerns
       the easement in the present case. The complaint, though
       difficult to read, clearly seeks relief from the judgment
       already entered . . . . The Court cannot find that any
       allegations in the complaint are different from the issues
       already decided in the previous case.

¶7           Eden’s timely appeal followed.      We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
and -2101(A)(1).

                               DISCUSSION

¶8            We review the superior court’s dismissal order de novo.
Peterson v. Newton, 232 Ariz. 593, 595, ¶ 4 (App. 2013). Res judicata — also
known as claim preclusion, Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422,
425 (App. 1993), precludes “a claim when a former judgment on the merits
was rendered by a court of competent jurisdiction and the matter now in
issue between the same parties or their privities was, or might have been,
determined in the former action.” Hall v. Lalli, 194 Ariz. 54, 57, ¶ 7 (1999).
Claim preclusion requires proof of: “(1) an identity of claims in the suit in
which a judgment was entered and the current litigation, (2) a final
judgment on the merits in the previous litigation, and (3) identity or
privity between parties in the two suits.” Peterson, 232 Ariz. at 595, ¶ 5.

¶9            As Eden’s complaint makes clear, the requisite identity of
claims exists between his action and the prior litigation. The complaint
alleges that Eden’s title policy shows no conveyances to Appellees or their
property and that Appellees have “no written document that grants any
conveyance” to his land. Eden further asserts that “verbal permission” for
Appellees to use the easement “stopped on 5-1-2006 when the plaintiff
purchased the defendants land” and that Appellees abandoned the
easement. The complaint further alleges the easements “have been
extinguished” and that Eden has obtained a “prescriptive easement” to
the parking lot through adverse possession. Eden alleges Deublein
“committed fraud upon the court” and the LLC in the first action in order
to obtain the preliminary injunction.



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                         EDEN v. DEUBLEIN et al.
                           Decision of the Court

¶10            Eden is clearly seeking to overturn the judgment in the first
action and is also asserting issues that could have been litigated in that
proceeding.2 Claim preclusion applies both to previously litigated issues
and to issues that could have been litigated in the earlier action. Special
Events Serv., Inc. v. Indus. Comm’n, 228 Ariz. 332, 335, ¶ 11 (App. 2011); see
also Howell v. Hodap, 221 Ariz. 543, 547, ¶¶ 19–20 (App. 2009) (the relevant
inquiry is whether the claims “arise out of the same nucleus of facts.”).

¶11           Nor does the record support Eden’s assertion that the first
action was not decided on the merits. In entering judgment against the
LLC in that proceeding, the court ruled that Deublein’s motion
“absolutely has merit and is supported by the evidence and the law.” The
court had before it the record from the preliminary injunction
proceedings, including the deeds granting the easements and a stipulated
survey of the properties. See Ariz. R. Civ. P. 65(a)(2)(C) (evidence received
during preliminary injunction proceedings and that would be admissible
at trial “becomes part of the trial record.”).

¶12            Finally, Eden argues he was not a party to the prior
litigation. Privity exists, though, if there is “substantial identity of
interests” and a “working or functional relationship” by which the
interests of the party and the putative privy “are presented and protected
by the party in the litigation.” Hall, 194 Ariz. at 57, ¶ 8. In the first
proceeding, Eden sought to intervene, asserting he was the “real party in
interest” after the LLC was dissolved and its property transferred to him.
The record demonstrates that Eden was in privity with the LLC for
purposes of claim preclusion.




2       To the extent Eden intended to assert claims based on conduct
unrelated to Appellees’ use of the easement, his complaint fails to set forth
“a short and plain statement of the claim showing that the pleader is
entitled to relief.” Ariz. R. Civ. P. 8. As the superior court observed, the
complaint is “difficult to read,” and courts do not “accept as true
allegations consisting of conclusions of law, inferences or deductions that
are not necessarily implied by well-pleaded facts, unreasonable inferences
or unsupported conclusions from such facts, or legal conclusions alleged
as facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005).




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                       EDEN v. DEUBLEIN et al.
                         Decision of the Court

                             CONCLUSION

¶13           We affirm the judgment of the superior court. Appellees
request an award of attorneys’ fees and costs pursuant to A.R.S.
§ 12-341.01. See Squaw Peak Cmty. Covenant Church of Phx. v. Anozira Dev.,
Inc., 149 Ariz. 409, 414 (App. 1986) (awarding appellate fees under
§ 12-341.01 based on deed including an easement). In the exercise of our
discretion, we grant Appellees’ request and will award a reasonable sum
of fees, as well as taxable costs, upon compliance with Arizona Rules of
Civil Appellate Procedure 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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