Opinion
No. 1 CA-CV 16-0373
03-23-2017
JACE FRANK EDEN, Plaintiff/Appellant, v. CITY OF SHOW LOW, Defendant/Appellee.
COUNSEL Jace Frank Eden, Show Low Plaintiff/Appellant Show Low City Attorney's Office, Show Low By Franklin M. Brown Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Navajo County
No. S0900CV201500417
The Honorable Dale P. Nielson, Judge
AFFIRMED
COUNSEL Jace Frank Eden, Show Low
Plaintiff/Appellant Show Low City Attorney's Office, Show Low
By Franklin M. Brown
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined. McMURDIE, Judge:
¶1 Jace F. Eden ("Plaintiff") appeals the superior court's order: (1) dismissing his claim for failure to comply with the notice of claim statute and res judicata; (2) denying a requested filing fees waiver; and (3) declaring him a vexatious litigant. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Plaintiff acquired real property through a deed of trust in 2006, on behalf of B.I.S.H., LLC. Plaintiff individually acquired adjoining parcels via quitclaim deed in 2015. In January 2013, the City of Show Low ("Defendant") informed B.I.S.H., LLC that a structure on the property interfered with the city's use of an ingress/egress easement and a utility easement that both ran in the city's favor. The city requested removal of the impediment.
¶3 In September 2013, Plaintiff filed a cause of action against Defendant alleging that placing an easement on the real property constituted an illegal taking and seeking damages in excess of $10 million. The matter was dismissed on procedural grounds for failure to comply with Arizona Revised Statutes ("A.R.S.") section 12-821.01(A). Plaintiff then filed a petition for special action in this court and we refused to accept jurisdiction. Soon thereafter, Plaintiff filed a petition for review of the denial of his special action to our Supreme Court, which was denied October 1, 2014. Plaintiff then brought a direct appeal in this court. We held Plaintiff did not have standing to bring the claim, as he did not own the property at the time of the alleged injury.
The cause of action was filed in Navajo County Superior Court cause number S0900CV201300378.
We cite to the current version of applicable statutes or rules when no revision material to this case has occurred.
Eden v. Ruechel, 1 CA-SA 14-0072, filed April 22, 2014, review declined April 30, 2014.
Eden v. City of Show Low, 1 CA-CV 14-0318, 2015 WL 2412176, at *1, ¶¶ 5-6 (Ariz. App. April 23, 2015) (mem. decision).
¶4 During the pendency of Plaintiff's appeal, Plaintiff filed a complaint against Defendant alleging forcible entry and detainer, seeking a declaratory judgment, and nearly $20 million in damages. The second complaint also related to the city's easement. In the complaint, Plaintiff claimed "Defendant has without permission installed underground main se[w]er lines and manholes . . . in doing so the Plaintiff no longer can build any structures that may be used to gain profits and just enrichment and enjoyment of said property." The superior court dismissed the complaint as res judicata for failure to comply with A.R.S. § 12-821.01(A). Plaintiff filed a second special action in this court, which was denied. Plaintiff subsequently appealed. This court affirmed the superior court's dismissal holding Plaintiff did not have standing to bring the claim, as he did not own the property at the time of the alleged injury.
The cause of action was filed in Navajo County Superior Court cause number S0900CV201400433.
Eden v. Higgins, 1 CA-SA 15-0116, filed April 28, 2015, review declined May 7, 2015.
Eden v. City of Show Low, 1 CA-CV 15-0268, 2016 WL 3600245, at *2, ¶¶ 7-8 (Ariz. App. June 30, 2016) (mem. decision).
¶5 While the second appeal was pending, Plaintiff brought the instant matter alleging, inter alia, diminution in value and just compensation. He contended A.R.S. § 12-821.01(H) controls, not § 12-821.01(A), and sought over $29 million in damages claiming a taking occurred under A.R.S. § 12-1134(A) because sewer lines and manholes were installed. Defendant filed a motion to dismiss for failure to state a claim, and asked the court to declare Plaintiff a vexatious litigant pursuant to A.R.S. § 12-3201. Defendant also argued Plaintiff had failed to follow the requirements under A.R.S. § 12-821.01(A) and that the matter was barred by res judicata. Defendant further argued Plaintiff was not indigent, and was not entitled to a waiver or deferral of costs.
The cause of action was filed in Navajo County Superior Court cause number S0900CV201500417.
¶6 The superior court found, upon consideration of the parties' pleadings, evidence, and arguments, that the complaint was barred by res judicata, and furthermore, that the complaint failed to comply with A.R.S. § 12-821.01(A). The superior court also found Plaintiff was not entitled to a waiver of fees, and that he was a vexatious litigant. Plaintiff timely appealed and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶7 We review the superior court's grant of a motion to dismiss for failure to state a claim de novo. Pivotal Colo. II, L.L.C. v. Ariz. Pub. Safety Pers. Ret. Sys., 234 Ariz. 369, 370, ¶ 4 (App. 2014). We may affirm the dismissal if correct for any reason. Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, 391, ¶ 10 (App. 2014).
¶8 Before addressing the merits of Plaintiff's claims, we must address the dispositive issue of standing, a question of law that we review do novo. Robert Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180, ¶ 15 (App. 2004). Generally, only parties with an ownership interest in the property at the time of the alleged injury may bring a cause of action. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 406, ¶ 8 (App. 2008). Standing requires a distinct and palpable injury. Id. The record reflects that the alleged breach or injury, or diminution of value, occurred as early as 2003, when the easements were placed on the real property in dispute. During this time, however, Plaintiff was not the property owner, and thus, could not allege a distinct injury. Plaintiff argues he acquired the real property in January 2015 from Branding Iron, L.L.C., and because of this, has standing to bring the claim. However, the "right of damages is personal to the owner, and does not pass with a deed." Boyd v. Atchison, T. & S. F. Ry. Co., 39 Ariz. 154, 159 (1931).
¶9 Because Plaintiff did not have an interest in the real property at the time of the alleged taking in either 2003 when the initial easements were imposed upon the real property, or 2013 when Plaintiff learned of the easement, he has not established standing to bring this cause of action. We hold the superior court properly dismissed Plaintiff's matter.
Assuming, arguendo, Plaintiff had standing, his claim would nevertheless be dismissed for failure to comply with A.R.S. § 12-821.01(A). A person who has a claim against a public entity must file the claim with the person or persons authorized to accept service for the public entity within 180 days after the cause of action accrues. A.R.S. § 12-821.01(A). A cause of action accrues when the damaged party realizes he has been damaged. A.R.S. § 12-821.01(B); Dube v. Likins, 216 Ariz. 406, 411-12, ¶ 8 (App. 2007).
The record reflects Plaintiff's alleged cause of action began to accrue as early as January 2013, when Plaintiff received and responded to correspondence from Defendant regarding the utility easements burdening the property in dispute. The record does not reflect, however, that Plaintiff filed a sufficient notice of claim within 180 days from the time he learned of the utility easements and any damage arising therefrom. The initial notice of claim, or letter to Defendant, did not include a sum certain. A review of the record reveals a sufficient notice of claim arose from a letter by Plaintiff in 2015 upon acquisition of the real property, but the 180 days had already passed by the date of that letter. Plaintiff did not raise any new injury or basis that could have triggered a different accrual date. Thus, Plaintiff's cause of action was properly dismissed on this basis as well.
¶10 The superior court also correctly dismissed Plaintiff's claim under the doctrine of res judicata. A claim is res judicata if a final judgment on the merits has been reached and bars further claims by parties or their privies, based on the same cause of action. Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 624, ¶ 13 (App. 2006). A cause of action implicates the same set of facts, and a final judgment is conclusive as to every issue decided and raised by the record, and every issue that could have been decided from the same set of operative facts. Malancon v. USAA Cas. Ins. Co., 174 Ariz. 344, 347 (App. 1992); Heinig v. Hudman, 177 Ariz. 66, 71 (App. 1993).
¶11 Plaintiff previously filed a claim in Navajo County Superior Court against Defendant in 2013, asserting an illegal taking took place because of the installation and extension of underground sewer lines and manholes on his properties, and requested just compensation. A final judgment was entered finding Plaintiff did not have standing to bring the cause of action because he was not the owner of the property, and furthermore, he had failed to comply with A.R.S. § 12-821.01(A). The matter was summarily and properly dismissed. This constituted an adjudication on the merits. See Anguiano v. Trans. Bus Sys., Inc., 76 Ariz. 246, 247 (1953) (an involuntary dismissal is an adjudication on the merits under Rule 41(b)). Subsequently, Plaintiff filed a second cause of action in Navajo County Superior Court against Defendant, alleging a forcible entry and detainer and seeking declaratory relief. The matter was also dismissed based on standing and failure to comply with A.R.S. § 12-821.01(A).
¶12 Thereafter, Plaintiff brought the instant matter, claiming a diminution of value due to the installation and extension of sewer lines. Because the instant matter derives from the same set of facts as the two previous matters, namely, the easements and installation of sewer lines, pipes, and manholes, and names Defendant in both causes of action, the instant matter was barred by res judicata based on standing and failure to comply with A.R.S. § 12-821.01(A). Therefore, the superior court properly dismissed the case.
Plaintiff also appeals the superior court's denial of his waiver or deferral of filing fees. Because the superior court correctly and properly dismissed the complaint for lack of standing in the two previous matters, we need not address Plaintiff's other arguments. Sw. Non-Profit Hous. Corp., 234 Ariz. at 391, ¶ 10.
¶13 Lastly, Plaintiff appeals the superior court's finding that he is a vexatious litigant, arguing he has not met the criteria under A.R.S. § 12-3201. We disagree.
¶14 Under A.R.S. § 12-3201(A), a party in a non-criminal case may request the presiding judge to designate a pro se litigant as a vexatious litigant if they engage in any of the conduct delineated in § 12-3201(E)(1) and (2). Section 12-3201(E)(2) provides that a party may be deemed vexatious if their conduct is without substantial justification, or groundless and not made in good faith. A.R.S. § 12-349(F). "Arizona courts possess inherent authority to curtail a vexatious litigant's ability to initiate additional lawsuits." Madison v. Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012). Because access to courts is a fundamental right, such findings should be entered sparingly and appropriately. Id.
¶15 Here, Plaintiff argues he did not file multiple causes of action for purposes of harassment, but instead "to leave no stone unturned" because he was uncertain which causes of action would "work." The superior court found Plaintiff's conduct—filing two previous causes of action, two petitions for special action, and two appeals, all involving the same set of facts and all dismissed for lack of standing—to be without substantial justification and for harassment. This finding is supported by the record.
In addition to the actions against Defendant in this case, Plaintiff has filed and defended other actions related to the parcel of land and the easement. In Deublein v. Branding Iron Plaza, LLC, Navajo County cause number S0900CV201300190, Plaintiff defended, on behalf of his limited liability company, a complaint for declaratory judgment. The complaint alleged "Branding Iron Plaza, LLC is the current owner of the property burdened by several easements created on July 20, 1955." Deublein ultimately prevailed, and Branding Iron was ordered to remove structures blocking the easement. Plaintiff attempted to appeal, but failed to do so in a timely manner. Therefore, this court dismissed the appeal. Deublein v. Eden, 1 CA-CV 14-0434, appeal dismissed September 9, 2014. Eden filed another cause of action related to the parcel of land and the easement. In S0900CV201400435, Plaintiff filed a complaint of forcible entry and detainer seeking declaratory relief, a permanent injunction, and quiet title. The matter was dismissed as barred by the doctrine of res judicata. Eden timely appealed, and this court affirmed. Eden v. Deublein, 1 CA-CV 15-0854 2017 WL 929747, at *3, ¶¶ 12-13 (Ariz. App. March 9, 2017) (mem. decision).
In Eden v. Fid. Nat'l Title Ins. Co., Plaintiff filed a cause of action against the title company that was involved in the sale of the real property between Deublein Trust and B.I.S.H., LLC. 1 CACV 150162, 2016 WL 1440185 (Ariz. App. April 12, 2016) (mem. decision). Plaintiff sued the title company, "alleging that they breached the Deublein and B.I.S.H. policies by not recording the driveway and utilities easements," causing injury to Plaintiff's desired use of the property. Id. at *1, ¶ 4. The superior court dismissed the complaint because Plaintiff was not a party to the contract. We affirmed. Id. at *2, ¶ 8.
¶16 The superior court did not base its finding solely on the number of lawsuits or proceedings filed, but addressed the frivolous nature of the instant matter — in that it is res judicata — as well as Plaintiff's "repeated filings of documents or requests for relief that have been the subject of previous rulings." But cf. Madison v. Groseth, 230 Ariz. 8, 14-15, ¶ 21 (App. 2012) (reversed on issue of vexatious litigant finding because the superior court did not address the merits of the matters filed by plaintiff, but found plaintiff to be vexatious because of the number of lawsuits filed). The superior court did not abuse its discretion by finding plaintiff to be a vexatious litigant. We affirm that Plaintiff is further barred from bringing another matter related to the real property and easements addressed by this decision unless a new injury occurs.
¶17 Given the facts, we are referring this case to the court's Chief Judge to determine if an administrative order should be entered barring Plaintiff from filing further motions, special actions, or appeals relating to the real property and easement addressed by this decision without prior leave of the court. A.R.S. § 12-3201(B).
Rule 25 Sanctions
¶18 On our own motion, we are awarding attorney's fees and costs on appeal to Defendant, pursuant to A.R.S. §§ 12-349, -350, and Arizona Rule of Civil Appellate Procedure ("ARCAP") 25. Based on our review of the record, and the briefing on appeal, Plaintiff brought this action and filed this appeal without substantial justification. See A.R.S. § 12-349(A)(1), (F). Twice before, this court told Plaintiff he did not have standing to bring an action for damages based on the defendant's easement. Undeterred, Plaintiff continues to assert that the city's use of its easement causes him injury. A plaintiff who constantly brings litigation over the same issue, when the courts have previously stated Plaintiff has no standing to do so, clearly meets the "without substantial justification" standard that "the claim . . . is groundless and is not made in good faith." A.R.S. § 12-349(F); Ziegelbauer v. Ziegelbauer, 189 Ariz. 313, 318 (App. 1997) (awarding attorney's fees on appeal because appeal was not supported by the law or record and not taken in good faith). Accordingly, we award Defendant reasonable attorney's fees and costs on appeal as a sanction against Plaintiff under A.R.S §§ 12-349, -350, and ARCAP 25, contingent upon Defendant's compliance with ARCAP 21.
CONCLUSION
¶19 Accordingly, we affirm.