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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                ESTHER ODIGWE, et al., Plaintiffs/Appellants,

                                         v.

      STONE OAKS APARTMENTS LLC, et al., Defendants/Appellees.

                              No. 1 CA-CV 17-0595
                                FILED 5-17-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2017-092530
               The Honorable David M. Talamante, Judge

                                    AFFIRMED


                                    COUNSEL

Wyer Law PLLC, Gilbert
By Ian Wyer
Counsel for Plaintiffs/Appellants

Law Offices of Scott M. Clark, P.C., Phoenix
By Paul A. Henderson
Counsel for Defendants/Appellees
                   ODIGWE, et al. v. STONE OAKS, et al.
                        Decision of the Court


                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.


M c M U R D I E, Judge:

¶1             Esther Odigwe, Ijeoma Odigwe, and Uzoma Odigwe
(collectively, the “Odigwes”) appeal the judgment dismissing their case
with prejudice and awarding attorney’s fees in favor of Stone Oaks
Apartments, LLC, Mark-Taylor Residential, Inc., and Gina Camacho
(collectively, “Stone Oaks”). Because the doctrine of claim preclusion bars
the Odigwes’ claims, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In August 2015, Chuks Odigwe (“Chuks”) filed a complaint
in superior court against Stone Oaks, alleging (i) violations of Title VIII of
the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988
and (ii) a claim for emotional distress. Odigwe v. Stone Oaks Apartments, LLC,
Maricopa County Super. Ct., CV 2015-094208 (Odigwe I). 1 In November
2015, the superior court, sua sponte, dismissed the complaint without
prejudice, concluding that issues based on a federal statute were more
properly resolved in the federal district court. Later that month, Chuks filed
the same complaint in the district court seeking actual, punitive, statutory,
general, consequential, and incidental damages. Odigwe v. Stone Oaks
Apartments, LLC, CV-15-02284-PHX-SPL (Odigwe II). On cross-motions for
summary judgment, the district court dismissed the complaint in March
2017, explaining:

              Plaintiff alleges that he is a member of a ”protected
       class” because of his ”race, national origin and disability.” . . .
       Plaintiff’s current allegations are that Defendants charged
       him fees in addition to his rent. When he refused to pay


1      We take judicial notice of the record in Odigwe I. See In re Sabino R.,
198 Ariz. 424, 425, ¶ 4 (App. 2000) (the superior court may take judicial
notice of another action tried in the same court, and an appellate court may
take judicial notice of anything of which the superior court could take
notice).



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                  ODIGWE, et al. v. STONE OAKS, et al.
                       Decision of the Court

       certain fees, Defendants moved to evict him. The eviction was
       dismissed, the disputed fees were refunded prior to initiation
       of this action, Plaintiff signed a new lease in January 2016, and
       he still lives at the complex today. Plaintiff claims Defendants’
       behavior was intimidating, coercive, harassing, retaliatory,
       interfering, threatening, and humiliating. He claims
       Defendants are punishing him ”for asking ’why’ they are
       being charged for what they do not owe.” . . . Because Plaintiff
       has failed to make any showing of his protected status, an
       element that he bears the burden of proof at trial, the Court
       will grant summary judgment in favor of Defendants.

(citations omitted).

¶3             In May 2017, Chuks and the Odigwes brought this action
against Stone Oaks, alleging abuse of process, breaches of contract and the
covenant of good faith and fair dealing, and emotional distress arising from
the utilities-billing dispute and subsequent eviction action. They sought
actual, punitive, statutory, general, consequential, and incidental damages.
Stone Oaks moved to dismiss, arguing that (i) Chuks’s claims were barred
by claim preclusion and (ii) the Odigwes’ claims were barred by issue
preclusion. See Ariz. R. Civ. P. 12(b)(6). In the reply, Stone Oaks posited
more broadly that claim preclusion barred all four plaintiffs’ claims. The
superior court granted the motion “for the reasons set forth in the
memoranda of Defendants,” entered final judgment dismissing the
complaint with prejudice, and awarded Stone Oaks $1650 in attorney’s fees.
The Odigwes timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

       A.     We Review the Dismissal of a Complaint De Novo.

¶4            Generally, we review the superior court’s dismissal of a
complaint de novo, Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012),
assuming the truth of, and indulging all reasonable inferences from, the
well-pled factual allegations, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417,
419, ¶ 7 (2008).

¶5              Because we may affirm the judgment for any reason raised
below and supported by the record, see KB Home Tucson, Inc. v. Charter Oak
Fire Ins. Co., 236 Ariz. 326, 329, ¶ 14 (App. 2014), we first consider de novo
whether the Odigwes’ claims are barred by claim preclusion. Howell v.
Hodap, 221 Ariz. 543, 546, ¶ 17 (App. 2009).


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                   ODIGWE, et al. v. STONE OAKS, et al.
                        Decision of the Court

       B.      Claim Preclusion Applies to the Odigwes’ Claims.

¶6              Federal law determines what preclusive effect a federal
court’s decision has on further state-court litigation. In re Gen. Adjud. of All
Rights to Use Water in the Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 13 (2006)
(citations omitted). Under federal law, “[c]laim preclusion . . . bars a claim
when the earlier suit ‘(1) involved the same claim or cause of action as the
later suit, (2) reached a final judgment on the merits, and (3) involved
identical parties or privies.’” 2 Howell, 221 Ariz. at 546, ¶ 17 (quoting Mpoyo
v. Litton Electro–Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)).

¶7             The first element examines whether the two suits arise out of
“the same transactional nucleus of facts.” Howell, 221 Ariz. at 546−47,
¶¶ 18−20 (analyzing tests articulated by the U.S. Court of Appeals for the
Ninth Circuit). Although the legal theories differ here, Odigwe II and this
action undisputedly arise out of the same transactional nucleus of facts and
the claims asserted here could have been raised in the federal action. 3 See
id. at 547−48, ¶¶ 21−25; see also id. at 548, ¶ 23 (damages allegations were
the same in both suits). Claim preclusion applies and the case was properly
dismissed. See id. at 548, ¶¶ 22−23 & n.8 (plaintiffs’ tort claims and claims
under the Arizona Constitution arose out of the same transactional nucleus
of facts); see also id. at 549, ¶ 26 (plaintiffs’ claims were barred by claim
preclusion because they arose out of the same nucleus of facts and could
have been raised in an earlier federal suit); see generally Tr.s of Constr. Indus.
& Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333
F.3d 923 (9th Cir. 2003) (discussing supplemental jurisdiction under 28
U.S.C. § 1367).


2       Privity between a party and a non-party exists if “there is ‘substantial
identity’ between parties, that is, when there is sufficient commonality of
interest.” Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d
1064, 1081 (9th Cir. 2003) (quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th
Cir. 1983)); see also Hall v. Lalli, 194 Ariz. 54, 57, ¶ 8 (1999) (privity requires
both a “substantial identity of interests” and a “working or functional
relationship,” in which the non-party’s interests “are presented and
protected by the party in the litigation”) (quotation omitted). The Odigwes
do not dispute a final judgment on the merits was properly entered in the
district court or that they are in privity with Chuks.

3    Appellants copied nearly all factual allegations from the Odigwe II
complaint into the complaint here.



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                  ODIGWE, et al. v. STONE OAKS, et al.
                       Decision of the Court

                              CONCLUSION

¶8           We affirm the judgment. Stone Oaks requests attorney’s fees
on appeal pursuant to “the lease contracts” and A.R.S. § 12-341.01.
Regarding the former, Stone Oaks offers no supporting record citation;
therefore, we deny the request. Regarding the latter, in the exercise of our
discretion, we deny the request. We award costs to Stone Oaks upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




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




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