Eli v. Procaccianti

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ZADOK ELI, et al., Plaintiffs/Appellants,

v.

PROCACCIANTI AZ II L.P., et al., Defendants/Appellees.

No. 1 CA-CV 23-0423
FILED 07-09-2024

Appeal from the Superior Court in Maricopa County
No. CV2012-000363
CV2012-051066
The Honorable Melissa Iyer Julian, Judge

AFFIRMED

COUNSEL

Zadok Eli, Hana Eli, Scottsdale
Plaintiffs/Appellants

Spencer Fane, LLP, Phoenix
By Andrew M. Federhar, Jessica A. Gale
Counsel for Defendant/Appellee Procaccianti

Hill, Hall & Deciancio, Phoenix
By R. Corey Hill, Christopher Robbins, Ginette M. Hill
Counsel for Defendant/Appellee Hilton Casitas
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Anni Hill Foster and Judge Brian Y. Furuya joined.

H O W E, Judge:

¶1 Zadok and Hana Eli appeal from the denial of their Arizona
Rule of Civil Procedure (“Rule”) 60(b)(5) motion to vacate the judgment in
CV2012-051066. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Elis are one of several homeowners who lease land from
Procaccianti AZ II, L.P. (“Procaccianti”). The Elis are also members of the
Hilton Casitas Council of Homeowners (the “HOA”).

¶3 In 2012, neighboring homeowner and HOA member Diana
Shaffer and related legal entities (collectively, “Shaffer”) sued Procaccianti
in CV2012-051066 for Procaccianti’s alleged breach of a 1999 amendment to
their ground lease. The Elis also brought a separate suit in CV2012-000363
against Procaccianti and the HOA for breach of contract. The superior court
consolidated both cases.

¶4 In CV2012-051066, the court granted summary judgment in
part to Procaccianti as to the Shaffer plaintiffs. In CV2012-000363, the case
proceeded to trial, a jury found for Procaccianti on all claims, and the court
awarded it $459,000 in attorneys’ fees. The court then entered a final,
unified, and signed judgment as to both CV2012-000363 and
CV2012-051066.

¶5 The court divided the judgment into sections. The court
decreed the 1999 amendment was enforceable against all the plaintiffs. The
court entered judgment for the HOA on all the Elis’ claims and awarded
the HOA $216,580 in attorneys’ fees and $5,725.64 in taxable costs. The court
also entered judgment for Procaccianti on all counts of Shaffer’s complaint
and on all counts of the Elis’ complaint. Finally, against both Shaffer and
the Elis, the court entered declaratory judgment determining their ground
rent and awarded Procaccianti attorneys’ fees of $459,000 and taxable costs
of $5,108.56, jointly and severally against Shaffer and the Elis.

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¶6 As relevant here, the Elis and Shaffer moved under Rule 60 to
set aside the judgment, which the superior court denied. The Elis, but not
Shaffer, appealed the denial of their Rule 60 motion and listed both the
CV2012-000363 and CV2012-051066 case numbers in their notice of appeal.
Procaccianti then moved to dismiss the appeal of CV2012-015066, arguing
that the aggrieved party in that case—Shaffer—never filed a notice of
appeal. The Elis opposed the motion, arguing that the CV2012-051066
judgment was against them as well because the cases were consolidated.

¶7 This court affirmed the superior court’s denial of the Elis’
Rule 60 motion in CV2012-000363 in Eli v. Procaccianti AZ II LP, 1 CA-CV
19-0855, 2021 WL 3088737, at *2 ¶ 9 (Ariz. App. July 22, 2021) (mem.
decision) (as amended) (“Eli II”). This court also dismissed the Elis’ appeal
of CV2012-015066, explaining that

consolidation of cases does not merge them into a single case,
Brummond v. Lucio, 243 Ariz. 360, 365, ¶ 20 (App. 2017), and
the [Elis] were not the parties aggrieved by the judgment
against Shaffer in CV2012-051066. See ARCAP 1(d) (noting that
the “aggrieved” party may appeal the judgment); In re Estate
of Friedman, 217 Ariz. 548, 551, ¶ 9 (App. 2008) (“An appeal
may only be taken by a party aggrieved by the judgment.”)

Id. at *3 ¶ 11 (emphasis added).

¶8 The Elis then moved under Rule 60(b)(5) to vacate the
judgments and obtain relief from enforcement in both CV2012-000363 and
CV2012-015066. The Elis argued that because this court determined that the
Elis were not aggrieved by the judgment in CV2012-015066, Procaccianti
was estopped from claiming the judgment is enforceable against them. The
Elis referred only to the subsections of the judgment that set the ground
rent and awarded Procaccianti $459,000 in attorneys’ fees jointly and
severally against the Elis and Shaffer.

¶9 The superior court denied the Elis’ Rule 60(b)(5) motion. The
court explained that as to the CV2012-051066 case,

the Court of Appeals dismissal of that appeal only was based
only upon the fact that the Shaffer Plaintiff did not appeal the
judgments and after the original judgments had already been
affirmed by the 2018 decision. The [c]ourt of appeals
otherwise noted that the original judgment had been affirmed
in 2018 and affirmed the additional sanctions awards as to the

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companion cases in which Eli, London, and Whitmer are
parties.

¶10 The Elis then moved for a new trial under Rule 59, which the
court also denied. The Elis appealed both orders denying their Rule 60(b)(5)
and 59 motions. See ARCAP 9(e)(1)(D)–(E) (determining that once a party
files a Rule 59 or 60 motion, the time to file a notice of appeal begins to run
from the entry of a signed order disposing of the last such remaining
motion). This court has jurisdiction under A.R.S. § 12-2101(A)(2), (5)(a).

DISCUSSION

¶11 The Elis challenge only the superior court’s denial of their
Rule 60(b)(5) motion. They argue the judgment is a single judgment,
including the $459,000 attorneys’ fees award, that applied only to
CV2012-015066. Because the Elis claim the judgment in CV2012-015066 was
the only judgment entered against them, the Elis argue this court’s
dismissal in Eli II of their appeal as to CV2012-015066 thereby released them
from the attorneys’ fees award. The Elis further argue that Procaccianti is
estopped from claiming otherwise. This court reviews a denial of a Rule
60(b) motion for an abuse of discretion. Rogone v. Correia, 236 Ariz. 43, 48 ¶
12 (App. 2014). As an initial matter, however, we must address the Elis’
estoppel and Procaccianti’s preclusion arguments.

I. Estoppel

¶12 The Elis argue that Procaccianti is estopped from arguing the
judgment in CV2012-051066 is enforceable against them because in Eli II,
Procaccianti “claim[ed] that the judgment in CV2012-051066 was not
enforceable against [Procaccianti].” Judicial estoppel has three
requirements: (1) the parties must be the same, (2) the question involved
must be the same, and (3) the party asserting the inconsistent position must
have been successful in the prior judicial proceeding. State v. Towery, 186
Ariz. 168, 182 (1996). “The doctrine focuses on factual assertions, not
opinions or legal positions.” State Farm Mut. Auto. Ins. Co. v. Frank, 1 CA-
CV 23-0282, __ Ariz. __, __ ¶ 49, 547 P.3d 374, 385 (App. 2024).

¶13 The Elis misrepresent Procaccianti’s argument in Eli II and
misunderstand the nature of judicial estoppel. Procaccianti argued a legal
position in Eli II that is consistent with its current position. In Eli II,
Procaccianti moved to dismiss the appeal as to CV2012-051066 because
Shaffer was not a party to the appeal. This is a legal position, not a factual
assertion. See id. at 385–86 ¶¶ 50–52 (finding argument that “claim did not
fall within the scope of any arbitration provision” was not a factual

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assertion). And this position is wholly consistent with Procaccianti’s
position that the judgment issued in CV2012-000363 is enforceable against
the Elis. In Eli II, Procaccianti did not seek dismissal as to CV2012-000363.
Rather, Procaccianti in that case successfully sought that this court affirm
the dismissal of the Elis’ third Rule 60 motion for relief from the judgment
in CV2012-000363. As this court explained, “consolidation of cases does not
merge them into a single case.” Eli II, 2021 WL 3088737, at *3 ¶ 11. The Elis’
argument that these positions are inconsistent lacks any merit.

II. Preclusion

¶14 Procaccianti argues that the Elis are either claim or issue
precluded from arguing our decision in Eli II vacated the judgment in
CV2012-051066 because the Elis raised the same claim in a motion for
reconsideration and a petition for review of Eli II. Claim preclusion has
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. In re Gen. Adjudication of All Rts. to Use Water in Gila River Sys. & Source,
212 Ariz. 64, 69–70 ¶ 14 (2006). And issue preclusion occurs when the issue
to be litigated was actually litigated in a prior proceeding. Circle K Corp. v.
Indus. Comm’n of Ariz., 179 Ariz. 422, 425 (App. 1993).

¶15 Neither the Elis’ petition for review nor their motion for
reconsideration has preclusive effect. The denial of a petition for review is
not an adjudication on the merits and therefore lacks preclusive effect. See
Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon, 252 Ariz. 264, 266 ¶ 10
(2022) (“For issue or claim preclusion to apply, there must be a final
judgment on the merits.”). As to the motion for reconsideration, here the
Elis argue that by dismissing their appeal of CV2012-051066 in Eli II, this
court’s decision in Eli II thereby vacated the judgment against them. But the
Elis did not argue in their motion that this court’s decision in Eli II itself
vacated the judgment in CV2012-051066. Thus, neither claim nor issue
preclusion applies to the Elis’ appeal.

III. Denial of the Elis’ Rule 60(b)(5) Motion

¶16 The Elis argue that the superior court erred in denying their
Rule 60(b)(5) motion for relief from the judgment in CV2012-051066 because
no separate judgment in CV2012-000363 was entered and the only
judgment against the Elis was the judgment in CV2012-051066. Therefore,
they contend that the judgment awarding Procaccianti $459,000 in
attorneys’ fees against them was issued in CV2012-051066 and not in

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CV2012-000363. Under Rule 60(b)(5), the superior court may relieve a party
from a final judgment if the judgment has been satisfied, released, or
discharged.

¶17 The record does not support the Elis’ assertion, however. The
filing at issue plainly on its face renders judgment in both CV2012-051066
and in CV2012-000363. Although issued as a single, unified document, the
filing contains two judgments—one judgment in CV2012-051066 that
applied to Shaffer, and another judgment in CV2012-000363 that applied to
the Elis. In other words, the sections of the judgment that apply to the Elis
comprise the judgment in CV2012-000363, whereas the sections of
judgment that apply to Shaffer comprise the judgment in CV2012-051066.
See Powers Reinforcing Fabricators, L.L.C. v. Contes, 249 Ariz. 585, 589 ¶ 14
(App. 2020) (Consolidation does not “make those who are parties in one
suit parties in another.” (quoting Torosian v. Paulos, 82 Ariz. 304, 316
(1957))). Therefore, this court’s dismissal of the Elis’ appeal as to the
judgment rendered in CV2012-051066, which never applied to the Elis, had
no effect on the judgment in CV2012-000363, which included the $459,000
attorneys’ fees award against the Elis. And indeed, in Eli II this court
affirmed the superior court’s denial of the Elis’ Rule 60 motion for relief
from judgment in CV2012-000363. Eli II, 2021 WL 3088737, at *2 ¶ 9. The
superior court thus did not err denying the Elis’ Rule 60 motion for relief
from judgment.

IV. Attorneys’ Fees

¶18 Procaccianti seeks attorneys’ fees on appeal under A.R.S. §
12-341.01 as well as sanctions under A.R.S. § 12-349 and ARCAP 25, arguing
that this appeal is both groundless and brought solely to delay and harass.
Procaccianti also seeks an award of costs under ARCAP 21.

¶19 Because this appeal is a “contested action arising out of a
contract,” we award Procaccianti its reasonable attorneys’ fees under A.R.S.
§ 12-341.01. We also award Procaccianti, as the successful party, its
reasonable costs upon compliance with ARCAP 21. Because we award
Procaccianti its reasonable attorneys’ fees under A.R.S. § 12-341.01, we do
not address its request under A.R.S. § 12-349.

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CONCLUSION

¶20 We affirm.

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

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