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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIK COMPANY LLC, Plaintiff/Appellee,

v.

RGO LLC, Defendant/Appellant.

No. 1 CA-CV 20-0280

No. 1 CA-CV 20-0284

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CV2013-010442

No. CV2018-014076

Honorable Christopher Coury, Judge

Honorable Daniel G. Martin, Judge

Honorable Patricia A. Starr, Judge

APPEAL DISMISSED IN PART, VACATED IN PART, AFFIRMED IN 

PART, REMANDED

COUNSEL

Burch & Cracchiolo PA, Phoenix

By Jake D. Curtis, Daryl Manhart 

Counsel for Plaintiff/Appellee

Rutila Seibt & Nash PLLC, Scottsdale

By Gregory W. Seibt, Alexandra Mijares Nash

Counsel for Defendant/Appellant

FILED 3-4-2021
ARIK v. RGO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which 

Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.

M c M U R D I E, Judge:

¶1 Appellant RGO LLC (“RGO”) challenges the superior court’s

grant of partial summary judgment on a rent disgorgement claim brought 

by Appellee Arik Company LLC (“Arik”) based on a clarified ruling from 

an earlier case between the same parties. For the reasons discussed below, 

we dismiss the appeal from the judgment in Maricopa County cause 

number CV2013-010442. In Maricopa County cause number 

CV2018-014076, we vacate the judgment and remand for further 

proceedings because the clarified order is not entitled to preclusive effect.

FACTS AND PROCEDURAL BACKGROUND

¶2 Arik and RGO entered a commercial lease in August 2007 to 

operate a bar and restaurant (the “Lease”). Arik paid $1890 in monthly rent 

from September 2007 through March 2012 and began paying $2000 in 

monthly rent on April 1, 2012.

¶3 In October 2010, a significant hailstorm damaged the 

premises’ roof, causing water leaks within Arik’s restaurant. The storm also 

destroyed an illuminated sign on the premises that advertised Arik’s

restaurant.

¶4 Arik sued RGO in 2013 (“2013 Case”), alleging RGO had 

failed to make the necessary repairs to the premises and failed to replace or 

repair the sign. The Lease provided Arik with the following remedies in the 

event of partial damage to the premises:

(a) In the event of damage described in paragraphs 9.2 or 9.3, 

and Lessor or Lessee repairs or restores the Premises pursuant 

to the provisions of this Paragraph 9, the rent payable 

hereunder for the period during which such damage, repair 

or restoration continues shall be abated in proportion to the 

degree to which Lessee’s use of the Premises is impaired. 

Except for abatement of rent, if any, Lessee shall have no 
ARIK v. RGO

Decision of the Court

3

claim against Lessor for any damage suffered by reason of any 

such damage, destruction, repair or restoration.

(b) If Lessor shall be obligated to repair or restore the 

Premises under the provision of this Paragraph 9 and shall 

not commence such repair or restoration within 90 days after 

such obligations shall accrue, Lessee may at Lessee’s option 

cancel and terminate this Lease by giving Lessor written 

notice of Lessee’s election to do so at any time prior to the 

commencement of such repair or restoration. In such event 

this Lease shall terminate as of the date of such notice.

RGO counterclaimed for forcible entry and detainer, trespass, and breach 

of the Lease.

¶5 In the 2013 Case, the superior court, Judge Patricia A. Starr 

presiding, granted partial summary judgment to Arik, finding RGO

materially breached the Lease “by refusing to repair the hail-damaged sign”

and rejecting RGO’s contention that Arik did not properly exercise its 

option to renew the Lease in 2012. The case proceeded to a bench trial at 

which Arik claimed, among other damages, $62,181 in “Abatement of Rent”

based on an alleged “70% loss of use due to failure to make required 

repairs.” However, Judge Starr ruled that Arik “failed to prove that it 

suffered any damages as a result” of RGO’s breach and, thus, that it was 

not entitled to recover damages. She also ruled that RGO failed to prove 

damages stemming from its counterclaims. Deeming Arik to be the 

successful party, the court awarded it attorney’s fees according to

Paragraph 31 of the Lease and costs under A.R.S. § 12-341.

¶6 RGO appealed to this court. We stayed the appeal to allow the 

superior court to certify the judgment as final under Arizona Rule of Civil 

Procedure (“Rule”) 54(c). Following entry of an amended final judgment, 

we concluded that Paragraph 9.2 of the Lease obligated RGO to make 

repairs for insured losses, including the hail-damaged sign:

[I]f at any time during the term of this Lease there is damage 

which is an Insured Loss . . . , then Lessor shall, at Lessor’s

sole cost, repair such damage, but not Lessee’s fixtures, 

equipment or tenant improvements, as soon as reasonably 

possible and this Lease shall continue in full force and effect.

Arik Co., L.L.C. v. RGO, LLC (“Arik I”), 1 CA-CV 15-0653, 2017 WL 822122,

at *7, ¶¶ 28-29 (Ariz. App. March 2, 2017) (mem. decision). We also affirmed 

the court’s conclusion that “RGO materially breached the lease by failing to 
ARIK v. RGO

Decision of the Court

4

repair the hail-damaged sign” and affirmed the attorney’s fees and costs

award to Arik. Id. at *7–10, ¶¶ 29, 39–41.

¶7 Arik moved for entry of the judgment after we issued our 

mandate in Arik I, and the superior court did so in December 2017. In June 

2018, RGO moved to determine whether the judgments against it had been 

satisfied. Specifically, it sought “a credit towards the Judgments” because

Arik had stopped paying monthly rent in June 2017 and “ha[d] not paid its 

share of the water bill since December 2017.” Arik opposed the motion. 

Stating that the sign “was not rebuilt and is not rebuilt as of the filing of this 

motion,” Arik argued RGO was not entitled to any offsets because its 

“material breach of the lease excuses Arik’s performance . . . , including 

paying rent, until the material breach is cured.” The superior court, Judge 

Daniel Martin presiding, denied RGO’s motion in September 2018, finding 

that “the material breach previously found by the Court”—the failure to 

repair the sign—“remains uncured” and that Arik “is excused from 

performance pending that cure.”

¶8 Arik filed a notice of satisfaction of the judgment on October 

26, 2018, and Judge Martin entered a dismissal with prejudice on November 

15, 2018. Two days before the court dismissed the 2013 Case, Arik filed a 

new complaint against RGO (“2018 Case”). Alleging that RGO still had not 

repaired the roof or the sign, Arik sought disgorgement of all rent it had 

paid between November 1, 2010, and June 1, 2017. RGO counterclaimed, 

asserting that it had repaired the sign on or about January 11, 2019, and that 

once the repairs were made, all of Arik’s unpaid rent was past due.

¶9 The parties filed cross-motions for summary judgment, and 

the superior court, Judge Christopher Coury presiding, ruled as follows:

1. Arik’s claims that predated January 13, 2012 were 

time-barred;

2. Arik’s claims between January 13, 2012 and July 29, 2013

were barred by both issue and claim preclusion because 

“Judge Starr has ruled that there are no damages for that 

period of time”;

3. “The language in Judge Martin’s Ruling of September 27, 

2018 . . . is the law of the case between these parties”;

4. “[RGO’s] equitable counterclaims are not properly 

postured procedurally . . . and . . . cannot be considered”;
ARIK v. RGO

Decision of the Court

5

5. Genuine issues of material fact remained as to whether the 

roof and sign had been repaired; and

6. A genuine issue of material fact remained “as to the 

meaning of Judge Martin’s Ruling dated September 27, 2018.”

As to the last item, Judge Coury offered two possible constructions of Judge 

Martin’s ruling:

a. Whether Judge Martin ruled that there [was] rent of $0 per 

month owed by Plaintiff so long as the breach is continuing; 

or

b. Whether Judge Martin ruled that Plaintiff had no 

obligation to actually tender payment of rent while the 

breach was continuing.

Judge Coury asked if either party objected to him speaking with Judge 

Martin to determine which construction he had intended. RGO objected, 

and Judge Coury granted the parties leave to seek clarification from Judge 

Martin.

¶10 Both parties did so. Judge Martin issued an order stating that 

he “intended . . . to hold that Plaintiff would never owe any rent at all for 

months when [RGO]’s breach was existing” and returned the matter to 

Judge Coury. On that basis, Judge Coury entered summary judgment for 

Arik for $92,000, representing the $2000 in monthly rent it paid between 

August 1, 2013, and May 31, 2017. Judge Coury also awarded Arik 

attorney’s fees and costs and certified the judgment under Rule 54(b).

¶11 RGO filed notices of appeal in both the 2013 Case and the 2018 

Case. The cases were consolidated, and we have jurisdiction under A.R.S. 

§ 12-2101(A)(2).

DISCUSSION

¶12 In reviewing a grant of partial summary judgment, we review

de novo whether any genuine issues of material fact exist and whether the 

superior court correctly applied the law. Sign Here Petitions LLC v. Chavez, 

243 Ariz. 99, 104, ¶ 13 (App. 2017). We view the facts and reasonable 

inferences in the light most favorable to RGO as the non-prevailing party. 

Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017). Summary judgment 

should be granted only “if the facts produced in support of [a] claim . . . 

have so little probative value, given the quantum of evidence required, that 
ARIK v. RGO

Decision of the Court

6

reasonable people could not agree with the conclusion advanced by the 

proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

I. This Court Does Not Have Jurisdiction Regarding the Appeal 

From the 2013 Case.

¶13 This court has an independent obligation to determine

whether it has appellate jurisdiction. Dabrowski v. Bartlett, 246 Ariz. 504, 511,

¶ 13 (App. 2019). If appellate jurisdiction is lacking, an appeal cannot 

proceed, and “any decision in such an appeal would be void.” Jessicah C. v. 

DCS, 248 Ariz. 203, 205, ¶ 8 (App. 2020); see Legacy Found. Action Fund v. 

Citizens Clean Elections Comm’n, 243 Ariz. 404, 406, ¶ 9 (2018).

¶14 In the 2013 Case, Judge Martin dismissed the case with 

prejudice on November 15, 2018, after finding satisfaction of the judgment. 

Neither party filed a timely notice of appeal from this order. See ARCAP

8(a). Likewise, neither party sought to vacate the original judgment. See 

Ariz. R. Civ. P. 60(c)(1). The time to challenge the judgment and orders in 

the 2013 Case has passed, and we dismiss that appeal for lack of 

jurisdiction.1

II. Judge Martin’s Ruling that Arik’s Performance Was Excused 

During RGO’s Breach Was Erroneous and Not Entitled to 

Preclusive Effect.

¶15 RGO contends partial summary judgment was improper 

because Judge Martin’s rulings, on which Judge Coury relied, either 

resulted from an improper horizontal appeal or violated the law of the case 

as established in Judge Starr’s order.

¶16 “The policy against horizontal appeals . . . forms part of the 

general concept of law of the case as applied to decisions of the same court.”

Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278 

(App. 1993). Under the law of the case, legal questions previously decided 

in the same case by the same court or a higher appellate court will not be 

reopened. Sholes v. Fernando, 228 Ariz. 455, 458, ¶ 8 (App. 2011). When 

applied to decisions of the same court, we treat the doctrine as procedural 

rather than a substantive limitation on the court’s power. Powell-Cerkoney, 

176 Ariz. at 278; see also Humphrey v. State, 249 Ariz. 57, 67, ¶ 37 (App. 2020)

(“The doctrine is at its weakest when determining ‘whether a judge is 

1 We note that the dismissal of the appeal in the 2013 Case does not 

alter our analysis in the appeal from the 2018 Case.
ARIK v. RGO

Decision of the Court

7

bound to follow a prior decision made in the same case by another judge in 

the same court.’”) (quoting State v. King, 180 Ariz. 268, 278–79 (1994)).

However, it is well-settled that a “superior court judge cannot review or 

change the judgment of another superior court judge [once] the judgment 

has become ‘final.’” Vera v. Rogers, 246 Ariz. 30, 36, ¶ 22 (App. 2018)

(quoting Davis v. Davis, 195 Ariz. 158, 161, ¶ 11 (App. 1999)). Judge Starr’s

ruling became final in January 2016, well before Judge Martin issued his 

ruling. We, therefore, examine whether Judge Martin’s ruling changed 

Judge Starr’s judgment.

¶17 As discussed above, Arik sought $62,181 in “Abatement of 

Rent” based on an alleged “70% loss of use due to failure to make required 

repairs” in the bench trial before Judge Starr. Judge Starr rejected this claim, 

finding that “[t]he basis . . . is not clear, and no other evidence corroborated 

this claim.” She then concluded that Arik had “failed to prove damages by 

a preponderance of the evidence.”

¶18 In contrast, Judge Martin concluded that Arik’s duty to pay 

rent was entirely excused for as long as RGO was in breach, citing Zancanaro 

v. Cross, 85 Ariz. 394 (1959). Arik also relies on Zancanaro on appeal. While 

Zancanaro states that ceasing performance is an available remedy for a 

material breach, it also says:

[T]he parties to a contract may specify certain remedies which 

may be used in case of breach. They may in addition make 

such a provision the exclusive remedy or remedies, barring 

all others which would otherwise be available. To obtain this 

result, however, the intent of the parties must be made clear.

Id. at 399; see also Hadley v. Sw. Props., Inc., 116 Ariz. 503, 506 (1977).

¶19 The Lease outlines two specific remedies for the type of 

breach at issue: rent abatement or the Lease’s cancellation. It further 

provides that “[e]xcept for abatement of rent, if any, Lessee shall have no 

claim against Lessor for any damage suffered by reason of any such 

damage, destruction, repair or restoration.” Arik does not contend that it 

ever attempted to cancel the Lease, but it sought rent abatement in the 2013 

Case. See, e.g., Blackmore v. Honnas, 141 Ariz. 354, 356 (App. 1984) (“[I]f the 

agreement is not canceled as required by its terms, it may continue to be 

viable.”).

¶20 Because the Lease states specific remedies for the breach at 

issue—and Arik claimed one of those remedies—Judge Martin erred by

finding Arik’s performance had been excused under Zancanaro. Thus, his
ARIK v. RGO

Decision of the Court

8

ruling is inconsistent with both the Lease and Judge Starr’s order and is not 

entitled to preclusive effect. Vera, 246 Ariz. at 36, ¶ 22; Bogard v. Cannon & 

Wendt Elec. Co., Inc., 221 Ariz. 325, 333, ¶ 26 (App. 2009). We, therefore,

vacate the partial summary judgment in favor of Arik.

III. The Superior Court Erred in Granting Partial Summary Judgment

to Arik in the 2018 Case.

¶21 RGO also contends Judge Coury should have granted its 

cross-motion because claim preclusion and issue preclusion attached to 

Judge Starr’s ruling and barred Arik’s rent disgorgement claim.

2 On the 

other hand, Arik contends that it is not precluded “from seeking damages 

for RGO’s continuing breach after the 2013 Case.”

A. Claim Preclusion Does Not Bar the Claim.

¶22 Claim preclusion forecloses a party from further litigating a 

claim upon entry of a valid, final judgment after either adjudication or 

default. Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon, 249 Ariz. 132, 

136, ¶ 9 (App. 2020) (quoting Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422, 

425 (App. 1993)). It bars litigation not only of those facts that were litigated 

but also those facts which might have been raised in the earlier suit. Stearns 

v. Ariz. Dep’t of Revenue, 231 Ariz. 172, 177, ¶ 25 (App. 2012). The party 

arguing for claim preclusion must establish three elements: 

(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.

Banner, 249 Ariz. at 136, ¶ 9 (quoting In re Gen. Adjudication of All Rights to 

Use Water in Gila River Sys. & Source, 212 Ariz. 64, 69–70, ¶ 14 (2006)). We 

review whether the doctrine applies de novo. Pettit v. Pettit, 218 Ariz. 529, 

531, ¶ 4 (App. 2008).

2 Orders denying summary judgment normally are not appealable, 

but we may review the denial of a cross-motion to avoid piecemeal 

litigation. Bothell v. Two Points Acres, Inc., 192 Ariz. 313, 316, ¶ 7 (App. 1998).
ARIK v. RGO

Decision of the Court

9

¶23 The second and third elements are met, as the 2013 Case was 

litigated to a final judgment, and both the 2013 and 2018 Cases involved 

Arik and RGO. We thus must determine whether there is an identity of 

claims between the two cases.

¶24 Under Arizona law, an identity of claims exists if no 

additional evidence is needed to prevail in the second action than was

required for the first. Lawrence T. v. DCS, 246 Ariz. 260, 265, ¶ 17 (App. 

2019). RGO again cites Arik’s rent abatement claim resolved by Judge Starr 

in the 2013 case. Arik contends, however, that Judge Starr’s rejection of that 

claim “did not entitle RGO to escape liability for continuing damages when 

it continued to remain in material breach.” It further contends claim 

preclusion does not apply because its disgorgement claim in the 2018 Case 

requires “proof of different or additional facts.” It argued that these facts 

were RGO’s continued breach by failing to repair or replace the sign until 

January 2019 and resulting in damages in the form of rent paid while the 

breach was ongoing after the initiation of the 2013 case.

¶25 Judge Starr did not rule that Arik could never seek rent 

abatement for any month in which RGO was in breach. Instead, she ruled 

that Arik did not prove that it suffered the loss of use of the premises before 

filing the 2013 Case. The record is silent regarding whether Arik sustained

a loss of use between July 2013, when it filed the 2013 case, and January 

2019, when it appears RGO repaired the sign. And whatever evidence Arik 

may have to show any such loss of use necessarily would differ from the 

evidence it presented in the 2013 Case. Claim preclusion, therefore, does 

not apply. See Phoenix Newspapers, Inc. v. Dep’t of Corrs., 188 Ariz. 237, 240 

(App. 1997) (claim preclusion applies only if “no additional evidence is 

needed to prevail in the second action than that needed in the first”).

B. Issue Preclusion Does Not Bar the Claim.

¶26 Issue preclusion precludes a party from relitigating an issue 

identical to one previously litigated to a determination on the merits in 

another action. Johnson v. O’Connor ex rel. County of Maricopa, 235 Ariz. 85, 

90, ¶ 20 (App. 2014) (quoting State ex rel. Winkleman v. Ariz. Navigable Stream 

Adjudication Comm’n, 224 Ariz. 230, 244, ¶ 33 (App. 2010)). It applies if

[(1)] the parties had a full opportunity and motive to litigate 

[the issue], 

[(2)] resolution of the issue was essential to the decision, 

[(3)] a final resolution on the merits resulted, and 
ARIK v. RGO

Decision of the Court

10

[(4)] there is common identity of the parties.

Minjares v. State, 223 Ariz. 54, 58, ¶ 14 (App. 2009). We review whether the 

doctrine applies de novo. Crosby-Garbotz v. Fell, 246 Ariz. 54, 56, ¶ 9 (2019).

¶27 Issue preclusion only applies to issues that have been litigated 

and were essential to a prior judgment. 4501 Northpoint LP v. Maricopa

County, 212 Ariz. 98, 103, ¶ 26 (2006). RGO contends, “[t]he issue of rent 

abatement in the 2018 [Case] is identical to the issue of rent abatement Arik 

argued and lost in the 2013 [Case].” Arik’s rent disgorgement claim, which 

relies on Paragraph 9 of the Lease, is the equivalent of a claim for 100

percent rent abatement. But while the parties litigated whether Arik was 

entitled to rent abatement before it filed the 2013 case—and Arik does not 

challenge Judge Coury’s ruling that those claims have been resolved—they 

have not litigated whether Arik suffered any loss of use of the premises

after it filed the 2013 case. Issue preclusion, therefore, does not apply, and 

we affirm the denial of RGO’s cross-motion.

ATTORNEY’S FEES AND COSTS

¶28 Both parties request attorney’s fees incurred in this appeal 

under A.R.S. § 12-341.01(A). RGO also cites Paragraph 31 of the Lease:

If either party . . . brings an action to enforce the terms hereof 

or declare rights hereunder, the prevailing party in any such 

action, on trial or appeal, shall be entitled to his reasonable 

attorney’s fees to be paid by the losing party as fixed by the 

court.

Generally, we enforce a contractual attorney’s fees provision according to 

its terms. Harle v. Williams, 246 Ariz. 330, 333, ¶ 10 (App. 2019).

¶29 As we vacate the money judgment against RGO, we find that 

RGO is the prevailing party on balance in this appeal. See, e.g., Lee v. ING 

Inv. Mgmt., LLC, 240 Ariz. 158, 161, ¶ 10 (App. 2016) (“Partial success does 

not preclude a party from ‘prevailing’ and receiving a discretionary award 

of attorneys’ fees”) (quotation omitted) (quoting Berry v. 352 E. Va., LLC, 

228 Ariz. 9, 14, ¶¶ 23–24 (App. 2011)). Therefore, we award reasonable 

attorney’s fees and taxable costs to RGO upon compliance with Arizona 

Rule of Civil Appellate Procedure 21.
ARIK v. RGO

Decision of the Court

11

CONCLUSION

¶30 We dismiss the appeal in the 2013 Case. In the 2018 Case, we 

vacate the partial summary judgment ruling in favor of Arik, affirm the 

denial of RGO’s cross-motion, and remand for further proceedings.