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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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

TIFF AN Y CYWINSKI
, Defendant s /Appellee s.

No. 1 CA

- CV 15

- 0854

Appeal from the Superior Court in Navajo County

No. S0900CV201400 435 The Honorable Dale P. Nielson
, Judge

AFFIRMED

COUNSEL

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

Moore Law Firm P L LC
, Show Low By Nicholas D. Patton C ounsel for Defendant s

/Appellee sEDEN v. DEUBLEIN et al

. Decision of the Court

2 MEMORANDUM DECISION
Judge Margaret H. D ownie 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 follow ing reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Geraldine Deubl e in , 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 t he LLC was interfering with her use of an easement.

¶3 The superior court held an evidentiary hearing to consider D eublein’s request for a prelimina ry 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 owner s 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 repa irs 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.”EDEN v. DEUBLEIN et al

. Decision of the Court

3  Deubl ein 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 t he 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 [L LC] being responsible for the
costs of removal and storage or disposition of the material. ”

¶5 After the injunction issued
, Deubl e in f iled a “ M otion for J udgment on the R ecord.” The LLC failed to respond, and the court granted the motion , stating:

R ule 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 b ecause [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 notic e o f 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 Judgmen t and Permanent Injunction and Quiet Title ” against Deublein and related defendants (collectively, “Appellees”). Appellees moved to dismiss
, arguing Eden’s action wasEDEN v. DEUBLEIN et al

. Decision of the Court

4 barred by the doctrine of res judicata

. Eden opposed the motion, asserting h e 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. T he 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 compl aint 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 cou rt’s dismissal order de novo

. Peterson v. Newton , 232 Ariz. 593, 595, ¶ 4 (App. 2013). Res judicata

— also known as c laim preclusion
, Circle K Corp. v. Indus. Comm’n , 179 Ariz. 422, 425 (App. 1993)
, pr ecludes “a claim when a former judgment on the merit s 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). C laim 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 m akes clear, the requisite identi t y 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 App ellees abandoned the
easement

. The complaint further alleges t he 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 act ion in order to obtain the preliminary injunction.EDEN v. DEUBLEIN et al

. Decision of the Court

5 ¶10 Eden is clearly seeking to overturn the judgment in the first action and is also asserting issues that could have been litigated in th at proceeding. 2 Claim preclusion applies both to previously liti gated 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 assert ion that the first action was not decided on the merits

. In entering ju dgment against the LLC in th at 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 stipul ated 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 the re is “substantial identity of interests” and a “working or functional relationship” by which the interest s 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 proceed ing, 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 o f 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. 2 005).EDEN v. DEUBLEIN et al

. Decision of the Court

6 CONCLUSION

¶13 W e aff irm the judgment of the superior court

. Appellees request an award of attorneys’ fees and costs pursuant to A.R.S. § 12

- 341.01. S ee S quaw Peak Cmty. Co venant Church of Ph x

. v. Anozira Dev., Inc. , 149 Ariz. 409, 414 (App. 1986) ( awarding appellate fees under § 12

- 341.01 based on deed including a n 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 A rizona Rules of C ivil Appellate Procedure 21.