Sebastian v. Brackeen

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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RHONDA S. SEBASTIAN, an unmarried woman, ) ) ) Plaintiff/Appellee, ) ) v. ) ) CLAUDE STUART BRACKEEN, an ) unmarried man, ) ) Defendant/Appellant. ) ) __________________________________) DIVISION ONE FILED: 01/20/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CV 09-0693 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. CV2006-1652 The Honorable Lee F. Jantzen, Judge AFFIRMED ________________________________________________________________ Law Office of Thomas E. Price, P.C. by Thomas E. Price Attorneys for Plaintiff/Appellee Kingman Claude Stuart Brackeen Hinkley, CA Defendant/Appellant in propria persona ________________________________________________________________ I R V I N E, Judge ¶1 Claude Stuart Brackeen ( Brackeen ) appeals from the trial court s judgment awarding attorneys fees to Rhonda S. Sebastian ( Sebastian ) in her action for partition of real property. Brackeen contends that this Court s ruling in a prior decision denying Sebastian attorneys fees constitutes res judicata and precludes the award of fees in the trial court. For the following reasons, we disagree and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 Sebastian filed a petition for partition of real property against Brackeen, seeking the sale of real property she owned with him. Brackeen answered the complaint, asserting that the parties had an existing written contract that addressed the dispute. On March 4, 2008, the trial court entered an order finding that the document was not an enforceable contract and ordered the property sold and the proceeds split equally between the parties. 1 The order also directed that Sebastian be reimbursed for costs in the amount of $470 and attorneys fees in the amount of $10,000 from Brackeen s share of the proceeds from the sale. The order further stated that the court held in abeyance any ruling on future attorneys fees that may be incurred in this matter, until this case is closed. ¶3 Brackeen appealed the trial court s finding that his agreement with Sebastian was not an enforceable contract. In a prior decision, we affirmed the trial court s ruling. Sebastian 1 In the alternative, the trial court ordered that the parties could agree on an amount Brackeen would pay Sebastian for her share of the property. 2 v. Brackeen, 1 CA-CV 08-0244 (Ariz. App. Mar. 5, 2009) (mem. decision). In our discretion, we denied Sebastian s request for an award of attorneys fees on appeal pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-341.01(A) (2003), while noting that she could recover her costs associated with the appeal. ¶4 Sebastian subsequently filed a petition in the trial court to appoint an appraiser and a realtor, asserting that Brackeen was not cooperating in selling the property as ordered by the court. Sebastian asked the court to order that the property be listed for sale and that Brackeen be ordered to pay all of her attorneys fees incurred since the March 4 order. ¶5 After oral argument, the court ordered the property listed for sale and set sale parameters, restated its earlier rulings awarding costs of $470 and attorneys fees of $10,000 to Sebastian awarded from Brackeen s Sebastian an share additional of the $1000 sale in proceeds, attorneys and fees incurred since its earlier order. Brackeen timely appealed. DISCUSSION ¶6 Brackeen argues that our decision in the prior appeal denying Sebastian s request for attorneys fees is res judicata and therefore precluded the trial court from awarding attorneys fees to Sebastian on remand. 3 ¶7 Res judicata precludes parties from relitigating an issue that has been previously adjudicated. Armstrong v. Aramco Servs. Co., 155 Ariz. 345, 347, 746 P.2d 917, 919 (App. 1987). Res judicata applies only when the issue decided in the prior action is identical to the instant issue, the prior ruling is a final judgment on the merits, and the party against whom res judicata is asserted was a party or in privity with a party in the prior adjudication. Id. Res judicata does not apply because the issue in our prior decision is not the same issue before us now on appeal. ¶8 Brackeen s argument may be more appropriately characterized as based on the law of the case doctrine. Under this doctrine, a decision by an appellate court on an issue presented to it is the law of the case for subsequent proceedings in that case, where the facts and issues are the same as those on which the appellate court s decision was made. Ctr. Bay Gardens, L.L.C. v. City of Tempe City Council, 214 Ariz. 353, 356, ¶ 17, 153 P.3d 374, 377 (App. 2007). The doctrine applies only to those issues actually decided by the appellate court. Id. at 357, ¶ 17, 153 P.3d at 378. ¶9 Our prior decision clearly indicated that the sole issue we considered on appeal from the trial court was whether the trial court erred by finding that a document signed by both parties does not constitute a partition agreement. Sebastian, 1 4 CA-CV 08-0244 at *1, ¶ 1. Brackeen, the appellant in that appeal, did not appeal any issue regarding the attorneys fee decision in the trial court. Id. This Court, therefore, decided no issue with respect to the trial court s decision regarding attorneys fees. Our decision denying Sebastian s request for attorneys fees pertained only to her request for an award of fees with respect to the appeal. Id. at *3, ¶ 11. The decision did not have any effect on the trial court s authority to award attorneys fees in any subsequent proceeding. ¶10 appeal, Sebastian has requested an award of attorneys fees on citing A.R.S. § 12-341.01(A). In our discretion, we grant Sebastian s request upon her compliance with Rule 21(a) Arizona Rules of Civil Appellate Procedure. CONCLUSION ¶11 The trial court s judgment is affirmed. /s/ PATRICK IRVINE, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ MAURICE PORTLEY, Judge 5

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