Derringer v. Termain

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DAVID DERRINGER, ) ) Plaintiff/Appellant, ) ) v. ) ) JANET TERMAIN; DON TERMAIN; ) DONNA TRAPHAGAN; ROBERT SEWELL, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 03-18-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0306 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, ARCAP) Appeal from the Superior Court in Apache County Cause No. CV2008261 The Honorable Donna J. Grimsley, Judge AFFIRMED David Derringer Plaintiff/Appellant In Propria Persona Albuquerque, NM Davis Miles PLLC by Lori A. Curtis Attorney for Defendants/Appellees Mesa W I N T H R O P, Judge ¶1 David Derringer ( Appellant ) appeals the trial court s dismissal of his complaint and subsequent imposition of attorneys fees. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 This case arises out of a self-storage rental space dispute. Beginning in 2004, Appellant rented storage space from Termain Storage, LLC. units increased, the When the price of Appellant s rental relationship deteriorated, full payment became an issue, and Termain Storage locked Appellant out of his rental units. ¶3 Unable to access his personal items, Appellant filed suit against Termain Storage and its owner and operator, Janet Termain, alleging breach of contract, illegal and unconstitutional acts. 1 conversion, and other Termain counterclaimed for non-payment of rent and damage to a vacant unit, and, in March 2008, the Round Valley Justice Court ruled in Termain s favor on its counterclaim, sanctioning Appellant for abuse of process. The superior court affirmed the justice Appellant appealed to the present court. court s ruling, and We dismissed the case for lack of jurisdiction. ¶4 On November 5, 2008, Appellant filed the complaint at issue in this appeal. the ground judicata. that Termain moved for dismissal, primarily on Appellant s complaint barred by res The trial court agreed and granted dismissal with prejudice on February 4, 2009. 1 was Appellant timely appealed, and The court later dismissed Janet Termain from the action. 2 we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). ANALYSIS I. ¶5 Motion to Dismiss In reviewing a dismissal for failure to state a claim, we assume the truth of the allegations Appellant asserts in his complaint, but review legal issues de novo. See Baker v. Rolnick, 210 Ariz. 321, 324, ¶ 14, 110 P.3d 1284, 1287 (App. 2005). We will sustain a dismissal only if Appellant could not be entitled to relief under any facts susceptible of proof under the claims stated. Ariz. 400, 402-03, Phelps Dodge Corp. v. El Paso Corp., 213 ¶ 8, 142 P.3d 708, 710-11 (App. 2006) (citation omitted). ¶6 Storage In his complaint, committed numerous Appellant torts by alleged that restricting Termain access to Appellant s personal items. He claims Termain Storage and its representatives deprived violated his ( Termain ) right to access his him trade of his property, tools, wrongfully tampered with his possessions, withheld Appellant s partial rent payment checks in a conspiracy to steal Appellant s property, and intimidated him in an attempt to deprive him of his due process rights. Termain argues that the facts and allegations underlying the complaint in this appeal ( second complaint ) are the same as those raised in Appellant s first justice court 3 action ( original complaint ), and are therefore barred. We agree. ¶7 The protects doctrine of litigants res from judicata, the burden or claim of preclusion, relitigating an identical issue and promotes judicial economy by preventing needless litigation. 977 P.2d 776, 779 Hall v. Lalli, 194 Ariz. 54, 57, ¶ 6, (1999). [U]nder the doctrine of res judicata, a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Ariz. 445, omitted). 448, 837 P.2d Aldrich & Steinberger v. Martin, 172 1180, 1183 (App. 1992) (citation The doctrine binds the parties not only upon the facts actually litigated, but also upon those points which might have been (even though not expressly) litigated. Id. (citation omitted). ¶8 Ultimately, Appellant seeks the return of his personal property. The Round adjudicated Appellant s Valley Justice Court, case against Termain however, on the already merits, thereby precluding Appellant from litigating his grievances a second time. The only noticeable differences between the two actions are the addition of new parties2 and a trade tools 2 In this second action, Appellant listed Termain (Janet s son and occasional Termain Donna Traphagan (Termain Storage employee), (Termain s attorney in the original action) as 4 Janet Termain, Don Storage employee), and Robert Sewell defendants. argument, and neither is sufficient to overcome claim preclusion. ¶9 First, res judicata bars a claim by a third party against an employee when the employer has obtained a favorable judgment against the third party, and vice versa. 172 Ariz. at 448, 837 P.2d at 1183. between two parties is analogous to See Aldrich, When the relationship that of principal and agent, the rule is that a judgment in favor of either, in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against the plaintiff s right of action against the other. Id. (citing Indus. Park Corp. v. U.S.I.F. Palo Verde Corp., 26 Ariz. App. 204, 208, 547 P.2d 56, 60 (1976)). Termain Storage and the other defendants have a common interest in this litigation and their relationship is such that, for res judicata purposes, they are privies. ¶10 Second, Appellant argues that his trade tools are exempt from the original judgment. Appellant did not raise this argument in his original complaint, although he could have. argument is therefore barred. App. at 206, 547 P.2d at The See Indus. Park Corp., 26 Ariz. 58 ( an existing final judgment rendered upon the merits . . . is conclusive . . . as to every point raised by the record which could have been decided ). 5 ¶11 Finally, Appellant attempts to assert new claims against Termain based on its representative s actions during the litigation of the first action, but succeeds only in making conclusory allegations that are nearly impossible to ascertain. He has failed to sufficiently state a claim upon which relief may be granted, complaint. and the trial court properly dismissed his See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008) ( [A] complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona s notice pleading standard under [Arizona Rule of Civil Procedure] 8. ). II. ¶12 The Attorneys Fees and Sanctions trial court awarded the defendants $2467.51 in attorneys fees pursuant to A.R.S. § 12-349 (2003) and Arizona Rule of Civil Procedure ( Rule ) 11. Appellant disputes this award, which we review for an abuse of discretion. See State v. Shipman, 208 Ariz. 474, 475, ¶ 3, 94 P.3d 1169, 1170 (App. 2004). We find no error in the court s decision. ¶13 Rule 11 allows a trial court to impose an appropriate sanction, . . . including a reasonable attorney s fee against a party who files motions and pleadings that are not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[,] and are interposed for any improper purpose, 6 such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Ariz. R. Civ. P. 11(a). Section 12-349 allows a court to assess attorneys fees when a party brings a claim without substantial primarily for delay or harassment. justification or The trial court found an attorneys fee award appropriate and, based on our review of the record, we will not disturb that finding. CONCLUSION ¶14 For the foregoing reasons, we affirm the trial court s dismissal of Appellant s complaint. Further, we grant Termain s request for attorneys fees upon compliance with Arizona Rule of Civil Appellate Procedure 21(c). ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ____________/S/__________________ MAURICE PORTLEY, Presiding Judge ___________/S/___________________ MARGARET H. DOWNIE, Judge 7

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