concurring in part and dissenting in part.
39 I agree that the district court erred when it concluded the claims stated in the January 2009 complaint are precluded, and, on that basis, granted summary judgment. I also agree that "the alleged breaches based on the Reimbursement Agreement give rise to separate claims from those based on the lease." However, I reach this conclusion based solely on the application of the four-part test of claim preclusion and the determination that there is not an identity of claims for relief in the two lawsuits. In addition, I disagree with the scope of the remand.
40 Unlike the majority, I conclude that the February 2007 claim regarding the lease and the January 2009 claim regarding the road construction reimbursement allege different events, different transactions, and different injuries. They also seek markedly different relief. Thus, based on a pragmatic determination of what constitutes a factual grouping, as discussed in Salazar v. State Farm Mutual Automobile Insurance Co., 148 P.3d 278, 281 (Colo.App.2006), I conclude there is no identity of claims for relief.
41 I disagree with the majority's apparent conclusion that because these two claims assert breaches of the same contract, there is an identity of the claims for relief, and that the January 2009 claim is precluded unless it is "after-arising." The majority's conclusion is based, in part, on the Tenth Circuit's decision in Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329 (10th Cir.1988), which, in my view, is distinguishable. To the extent that it is also based Argus Real Estate, Inc. v. E-470 Public Highway Authority, 109 P.3d 604 (Colo.2005), and Salazar, I conclude that those cases do not support the majority's conclusion that there is an identity of claims when the breaches and claims for relief are as disparate as they are here.
€ 42 In my view, the majority's extensive discussion of C.R.C.P. 15(d) and "after-arising claims" is not only unnecessary, but implies that even when there is no identity of claims, a claim asserting a disparate breach of a contract is precluded unless it is "after-arising." This may lead to litigation about the meaning of "after-arising claims," and, rather than create a "bright-line rule," weaken the longstanding four-part test.
43 Accordingly, although I concur in reversing the judgment, I would remand with directions to deny the seller's motion for summary judgment-elaim preclusion, to address any pending motions, and to proceed with litigation of the buyer's January 2009 claim.
I. The Seller's Representations and Warranties
44 On March 31, 2006, the seller agreed to sell an RV park to the buyer. Among other things, the seller represented and warranted that it would transfer the property "free and clear of all liens and encumbrances other than those agreed to in the agreement."
T45 In May 2006, the seller executed a warranty deed in which it conveyed the prop*17erty to the buyer. The deed stated, among other things, that the property was "free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, enecum-brances and restrictions of whatever kind or nature whatsoever, except -all taxes and assessments for the current year, a lien but not yet due or payable," and specific exceptions described in Schedule B, Section 2, which was attached to the deed. Schedule B, Seetion 2, does not include an exception regarding the encumbrances the buyer now alleges.
IL - The Complaints
A. The First Lawsuit
146 The buyer first sued the seller on February 14, 2007, asserting claims for breach of contract, fraud and deceit, and indemnification. The buyer alleged that the seller transferred title that was encumbered by a lease agreement that permitted a tenant to operate a tavern on the property, and, in so doing, breached the representations and warranties in the March 2006 real estate purchase agreement. The case was tried to the district court from January 20 to 28, 2009. On April 2, 2009, the trial court found that the seller breached its representations and warranties that the property was free of encumbrances, but did not award damages. A division of this court affirmed the judgment as to breaches of the real estate purchase agreement and the warranty deed, but remanded to the district court for further findings regarding whether the buyer had proved that the lease diminished the value of the property. Loveland Essential Grp., LLC v. Grommon Farms, Inc., 251 P.3d 1109 (Colo. App.2010).
B. The Second Lawsuit
T47 On January 13, 2009, just a week before the first case went to trial, the buyer filed a second complaint alleging that the seller breached the purchase agreement by not disclosing "the potential for a claim of a right of reimbursement." It also alleges that the seller breached the terms of the warranty deed by not conveying the parcels free and clear from, as relevant here, all former and other liens, taxes, assessments, eneum-brances, and restrictions, other than the specific exceptions in the relevant attachment.
[ 48 The record includes evidence that, in September 2004, the seller conveyed land adjacent to the RV park to Centerra Metropolitan District No. 1, which was developing land surrounding the property. According to the record, Centerra dedicated that land to the City in December 2004. The record also indicates that Centerra constructed roads adjacent to and abutting the RV park, and that the roads were completed and accepted by the City's engineering department in April 2006. These events predate the seller's delivery of the warranty deed to the buyer.
T 49 On July 8, 2008, the City of Loveland and Centerra executed a property reimbursement agreement in which they agreed that Centerra would have an opportunity to be reimbursed for the cost of the road construction by future developers or redevelop-ers of property adjacent to and abutting the improvements Centerra had installed. The reimbursement agreement was recorded on August 1, 2008.
{50 The buyer asserts that, on August 7, 2008, the City sent a certified mail notice that it had filed the reimbursement agreement against the property. There is evidence that the City advised the buyer that if it chose to redevelop the property, it would be required to pay Centerra more than $750,000 to reimburse it for roads it constructed adjacent to the property. The ree-ord does not indicate whether the buyer has applied to redevelop the parcels, nor does it indicate whether Centerra or the City has asserted a claim for reimbursement of the road construction costs.
III. Claim Preclusion
151 Claim preclusion bars the repeated litigation of claims that have already been resolved by a court. It serves "the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hostery Co. v. Shore, 489 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).
*18{52 Thus, a claim that has been resolved in one judicial proceeding may not be litigated again in a second judicial proceeding when (1) the first judgment is final, (2) there is identity of subject matter, (3) there is identity of claims for relief, and (4) there are identical parties or there is privity between parties to the two actions. Burlington Ditch Reservoir & Land Colo. v. Metro Wastewater Reclamation Dist., 256 P.8d 645, 668 (Colo. 2011); Argus Real Estate, 109 P.38d at 608.
53 The determination of whether there is identity of claims "is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claims relies." Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 199 (Colo.1999). The supreme court has said that "claim preclusion bars relitigation not only of all claims actually decided, but of all claims that might have been decided if the claims are tied by the same injury." Argus Real Estate, 109 P.8d at 609. Quoting Restatement (Second) of Judgments § 24 (1982), the court further explained that claim preclusion
bars a litigant from splitting claims into separate actions because once judgment is entered in an action it "extinguishes the plaintiff's claim ... includ[ing] all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose."
Argus Real Estate, 109 P.8d at 609.
154 In Argus Real Estate, a corporate landowner agreed to grant title of property to a public highway authority. Under the agreement, the highway authority agreed to return title to the landowner if it did not use the property. The landowner's general partner later executed a gift deed to the highway authority that did not include the reversion agreement. | The landowner next assigned its interest in the agreement to a real estate company. The highway authority sued the landowner for a declaratory judgment and to quiet title The landowner counterclaimed, alleging breach of contract and seeking specific performance, declaratory judgment, and to quiet title. The district court granted the highway authority's motion for summary judgment. The real estate company, as as-signee of the original agreement, later sued the highway authority seeking reformation of the agreement. The supreme court ultimately affirmed the district court's grant of summary judgment based on claim preclusion. The court said "it was incumbent upon each party to raise any claims, issues and defenses it may have had that would affect the adjudication of rights in the parcel." Id. The court ruled that the claim was precluded because the landowner could have raised a statutory reformation claim and should have done so "because the claim directly involved the adjudication of its rights in the parcel as part of the quiet title claim." Id. Thus, although the landowner and the real estate company sought different relief, the real estate company's claims were precluded because they alleged the same promise, the same breach, and the same injury to ownership of the property.
T55 In Salazar, a division of this court further explained that, when determining whether a factual grouping constitutes a transaction, we do so "pragmatically, giving weight to such factors as 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations."" 148 P.3d at 281 (quoting Porn v. Nat'l Grange Mut. Ins. Co., 98 F.3d 31, 85 (Ist Cir.1996)); accord Restatement § 24. Other courts, adopting but embellishing the Restatement § 24 test, measure the claim by reference to "all grounds for relief arising out of the conduct complained of," Kilgoar v. Colbert County Bd. of Educ., 578 F.2d 1083, 1085 (5th Cir.1978); "operative facts," Landscape Properties, Inc. v. Whisenhunt, 127 F.8d 678, 683 (8th Cir.1997); a "factual clone," Sims v. Mack Trucks, Inc., 468 F.Supp. 1068, 1070 (E.D.Pa.1979); or "a common nucleus of operative facts," Haag v. United States, 589 F.3d 43, 45-46 (Ist Cir.2009); In re Ark-LaTex Timber Co., 482 F.8d 319, 330 (5th Cir. 2007). See also 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4407, at 178-77 (2d ed. 2002).
156 Most modern courts have defined a cause of action in terms of a functionally *19related group of facts, and have defined a transaction functionally rather than analytically, and flexibly rather than rigidly. Robert C. Casad & Kevin M. Clermont, Res Judicata, A Handbook on its Theory, Doctrine, and Practice 65-66 (2001). The general rule is that a court will look to the injury underlying each of the proceedings. 1B Colo. Prac., Methods of Practice § 25:2 (5th ed.) (emphasis added); Farmers High Ling, 975 P.2d at 199. The relevant inquiry is whether the claims arise out of the same transaction, seek redress for essentially the same basic wrong, and rest on the same or a substantially similar factual basis. Porn, 98 F.3d at 34.
57 It is on this issue that I depart from the majority's analysis and reliance on Petro-management. - Petromanagement was a federal diversity case, and the primary issue was whether the court should apply the federal or state law of claim preclusion. The court concluded that the federal law controlled. - Petromanagement, 835 F.2d at 1331. There, an oil and gas exploration company entered into an option agreement to buy oil and gas leases from an oil and gas development company. The company later bought five leases pertaining to five wells, each by way of a separate, but identical, purchase agreement. Id. In its first suit, the exploration company sought rescission of the option agreement, alleging that the development company had not met its contractual obligations, including keeping one particular well free of all liens. Id. In its second suit, the exploration company referenced the five separate lease purchase agreements. This time, the company not only sought rescission and restitution, but also sought actual and punitive damages, alleging the development company had fraudulently induced it to enter into the contracts, falsely represented the production capabilities of the wells, and falsely advised it regarding those capabilities. The court of appeals said it was not required to find that the five lease purchase contracts constituted a single transaction. Instead, it concluded that the two lawsuits presented the same cause of action because the five contracts were identical and constituted a sufficiently related series of connected transactions. Thus, the court did not take a categorical approach based on a conclusion that the claims arose from a single contract, but, rather, took a pragmatic approach based on considerations of time, space, origin, and motivation, whether the claims formed a convenient trial unit, and whether treatment of the claims as a unit conformed to the parties' expectations. Thus, I do not perceive the ruling in Petromanagement as rigid or controlling on the facts before us.
IV. Seller's Motion for Summary Judgment
1 58 The seller sought summary judgment, asserting that a final judgment in February 2007 lawsuit precludes litigation of the buyer's claims in the January 2009 suit.
159 The trial court said, "(Claim preclusion] not only bars issues actually decided, but also any issues that should have been raised in the first proceeding, but were not." (Emphasis added.) On this premise, it ruled that the buyer's second claim was precluded because both the first and second lawsuits against the seller "allege breaches of the same Contract and Deed, and arise out of the same operative facts surrounding the sale," and the buyer could have easily raised issues concerning the Reimbursement Agreement in the first action.
T60 This case turns on the question of whether there is identity of claims.
V. - Analysis
{61 The February 2007 claim regarding the lease and the January 2009 claim regarding the road construction reimbursement allege different events relating to different transactions and injuries. They also seek markedly different relief Thus, the seller did not meet its burden to show, based on undisputed facts, that the buyer's January 2009 claim is precluded.
A. Identity of Claims
162 The buyer's 2007 claim and its 2009 claim pertain to different
® alleged encumbrances (lease vs. reimbursement liability);
*20e documentary sources (lease between the seller and the tenant vs. reimbursement agreement between Centerra and the City);
® parties whom the alleged encumbrances benefit (tenant vs. Centerra);
® locations (tavern vs. adjacent road);
estatus of the alleged encumbrances at the time of closing (operative vs. potential);
® dates on which the alleged encumbrances attached to the property (before closing vs. yet to be determined);
e alleged dates of the discovery (before February 2007 vs. after that date);
® injuries ($1.17 MM diminished property value resulting from the lease vs. encumbrance of $794,871.69 liability for road construction in the event of redevelop ment); and remedies (declaration that lease is unenforceable and damages based on lease vs. damages based on the reimbursement for road construction).
In addition, the two claims are so disparate that it is debatable whether they form a convenient trial unit. The record is silent about whether the parties would have expected claims regarding such diverse injuries and claims to have been tried as a single unit.
T 63 Considering the foi'egoing factors, the claims do not seek redress for the same injury and they do not rest on the same or substantially similar evidentiary or factual bases. Therefore, considering the claims functionally rather than analytically, and flexibly rather than rigidly, I conclude that the lease encumbrance was the transaction addressed in the February 2007 lawsuit and the alleged reimbursement encumbrance is the transaction addressed in the January 2009 lawsuit. In this regard, I conclude that although the real estate agreement and the transfer of title were each single events, the covenants the seller made in them are susceptible of separate breaches based on claims by distinct parties arising at different times.
B. Seller's Arguments
{64 To large measure, the seller argues that the buyer knew about the road construction and anticipated that it might be required to reimburse Centerra. These arguments, however, pertain to the merits of the buyer's claims; that is, whether the seller failed to disclose the reimbursement matter and whether that matter constituted a breach of the covenant of title. Therefore, I have considered them only to the extent that they suggest that there is identity of claims and that the claims constitute a single transaction for claim preclusion purposes.
1 65 I reject as overbroad the seller's contention that "claims preclusion bars re-litigation of claims that have already been decided as well as those which could have been decided." (Emphasis added.)
T 66 The four-part test for claim preclusion is whether there is a final judgment, identity of subject matter, identity of claims for relief, and identity of parties When determining whether there is identity of claims, it is nee-essary to consider the factors set out in Salazar. The statement that claim preclusion bars the relitigation of claims that could have been decided does not supplant the four-part test. Instead, it merely observes that when the four-part test is satisfied, it not only bars the theories of relief that were actually litigated, but also bars theories of relief that could have been presented. In this regard, it is a corollary to the statement that the determination of whether there is identity of claims "is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claims relies." Farmers High Line Canal, 975 P.2d at 199.
67 The cases on which the seller relies do not hold to the contrary.
168 With regard to In re Estate of Youngquest, 102 Colo. 105, 111, 76 P.2d 1117, 1119 (1938), the seller says "the appellate court was clear that claim preclusion bars not only those matters actually decided but also those which might have been litigated." 10 There, however, the supreme court made it *21clear that there must be an identity of claims: "[Claim preclusion] is controlling where the second action is based upon the same claim as was asserted in the first, but where the second proceeding is based upon a different claim, only matters actually litigated in the first action are [precluded]." Id. at 110-11, 76 P.2d at 1119 (emphasis in the original). Indeed, the court described the difference between the effect of a judgment on a second action for the same claim or demand, and its effect on a second action between the same parties on a different claim or cause of action:
In the former, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It concludes the parties as to every matter which was offered and received to sustain or defeat the claim or demand, and as to every other substantial matter which might have been offered for that purpose; but, where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters actually litigated and determined, and not what might have been.
Id. at 111, 76 P.2d at 1119 (quoting Grand Valley Irrigation Co. v. Fruita Improvement Co., 37 Colo. 483, 500, 86 P. 324, 330 (1906)) (emphasis added).
169 With regard to Natural Energy Resources Co. v. Upper Gunnison River Water Conservancy District, 142 P.3d 1265, 1280, n. 22 (Colo.2006), the seller presents the following quotation from Argus Real Estate: "Claim preclusion works to preclude relitigation of matters that have already been decided as well as matters that could have been raised in a prior proceeding but were not." 109 P.3d at 608. However, the Argus court did not rely on the quoted language in reaching its decision. Moreover, the court again made it clear that claim preclusion only bars relitigation of claims "that might have been decided if the claims are tied by the some injury." Id. at 609 (emphasis added). With regard the statement about "matters that could have been raised in a prior proceeding but were not," the court cited Lobato v. Taylor, 70 P.3d 1152, 1165 (Colo.2003), as the source.
70 Although Lobato does, indeed, make that statement, the court there did not rely on that language to reach its decision. The court cited 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4403, at 20 (2d ed. 2002), as the source of the statement. The language in Federal Practice and Procedure that most closely resembles the language in Lobato begins the editors' summary of policies and sources of res judicata. It does not state the rule itself. Instead, it states that there are many closely related policies that underlie res judicata rules. It then says that this is so whether the purpose and effect of the rule is to preclude relitigation of matters that have been litigated previously or to preclude any litigation of matters that should have been litigated previously. This is not a statement of the rule of claim preclusion; it is a statement of the purpose and effect of the rule. And, indeed, depending on the cireumstances of a case, application of the four-part rule may bar relitigation of matters previously litigated or bar litigation of matters related to the same injury that could or should have been litigated in the context of the earlier proceedings. Regardless of the treatise's introductory description of the purpose and effect of the rule of claim preclusion, it does not establish binding Colorado precedent.
{71 The seller's reliance on Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.8d 795, 798 (Colo.App.2006), is also unavailing. First, the division ruled that the second action was based on the same injury. Under existing law, a second claim for the same injury constitutes the same claim and is precluded because it has been previously litigated, not because it could have been litigated. Thus, onee again, the four-part rule controls, and in Holnam, the division concluded there was an identity of claims in the two suits.
172 Thus, the essential question here is not whether the buyer could have included the road construction reimbursement agreement in the February 2007 lawsuit, but whether the seller has demonstrated based on undisputed facts that there is an identity of claims. And here, the two claims do not *22pertain to the same injury; are not related in time, space, or origin; do not rely on the same operative facts; and do not form a convenient trial unit. Therefore, I conclude that the seller did not meet its burden of showing otherwise based on undisputed facts. Accordingly, I also conclude that the court erred when it ruled that the buyer's January 2009 claims were precluded and granted summary judgment on that basis.
C. C.R.GC.P. 15(d)
173 I am not persuaded by the seller's argument that controlling Colorado precedent requires the buyer to join these disparate claims in a single lawsuit, and to have the resolution of the lease dispute preclude resolution of the reimbursement agreement dispute. Such a rule would ignore, and possibly supplant, the claim preclusion test that there must be an identity of subject matter, claims, and parties Moreover, absent a more explicit statement regarding claim preclusion in C.R.C.P. 15(d), this permissive procedural rule does not operate to modify the common law test of claim preclusion.
T 74 Accordingly, I concur that the judgment must be reversed. However, I would remand with instructions to deny the seller's motion for summary judgment-claim preclusion, to address any pending motions, and to proceed with litigation of the buyer's January 2009 claim.
. Although seller's brief cites page 118 of that decision, I can find no such language on that page. Instead, I address similar language that appears on page 1119.