Arik v. Rgo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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)
FILED 3-4-2021

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
 ARIK v. RGO
Decision of the Court

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

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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

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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”;

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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

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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.

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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

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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).

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¶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

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[(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.

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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.

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

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