Cuprite Mine Partners LLC v. Anderson

Filing 97

ORDER: IT IS ORDERED that the defendants 54 , and 83 motions to expunge the plaintiffs first amended notice of pendency of action are DENIED. Signed by Magistrate Judge Leslie A Bowman on 12/20/12.(BAC)

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WO

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Cuprite Mine Partners, L.L.C., an Arizona )
limited liability company,
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Plaintiff,
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v.
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John H. Anderson, a married man acting in his )
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sole and separate capacity; et al.,
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Defendants.
______________________________________ )

CIV 12-286 TUC DCB (LAB)

ORDER

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Pending before the court is a motion, filed by the defendant, Margaret Jane Anderson

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Liljenquist, on August 10, 2012, to expunge the plaintiff’s first amended notice of pendency

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of action. (Doc. 54)

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Also pending is a similar motion to expunge filed by the defendant, Peter Haakon
Anderson, on November 26, 2012. (Doc. 83)

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This action concerns sixteen patented lode mining claims located in the Copper Mountain

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Mining District of Greenlee County, AZ. (Doc. 14) The plaintiff owns a 5/6 fractional interest

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in each of the sixteen mining claims. Id. The remaining 1/6 fractional interest is owned by one

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of the five individual defendants. Id. The plaintiff filed this action pursuant to A.R.S. §§ 12-

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1211 and 12-1218 to have the sixteen mining claims partitioned by sale. Id. Apparently, the

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plaintiff would like to sell the mining claims to the owners of the copper mine next door, but

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the defendants refuse to agree.

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The case has been referred to Magistrate Judge Bowman for all pretrial matters pursuant
to the local Rules of Practice. LRCiv 72.2.

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Discussion

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On July 30, 2012, the plaintiff filed an amended notice of lis pendens stating that an

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action has been filed in this court involving sixteen lode mining claims in Greenlee County,

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Arizona. (Doc. 43) The notice gives the name and location of each of the mining claims. Id.

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The defendants argue the lis pendens should be expunged either because the form of the

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document does not comply with the applicable statute (Docs. 54, 83) or because the underlying

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complaint was not properly pled (Doc. 54).

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The latter argument was made when the defendants’ motions to dismiss the complaint

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were still pending. The court has since denied those motions. (Doc. 88) Accordingly, the court

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finds the underlying complaint is not faulty and the lis pendens should not be expunged on that

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ground.

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In the alternative, the defendants argue the lis pendens should be expunged because it
does not comply with A.R.S. 12-1191(A).

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“A lis pendens is a statutory method for a party to litigation to alert future purchasers or

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encumbrancers of the property affected and the claims made in the complaint.” In re

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Farnsworth, 384 B.R. 842, 847 (Bkrtcy.D.Ariz. 2008) (punctuation modified). The statute

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reads in pertinent part as follows:

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In an action affecting title to real property, the plaintiff at the time of filing the
complaint, or thereafter, and the defendant at the time of filing the defendant’s
pleading when affirmative relief is claimed in such pleading, or thereafter, may
file in the office of the recorder of the county in which the property is situated a
notice of the pendency of the action or defense.
A.R.S. § 12-1191(A) (emphasis added).

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The defendants argue the statute’s use of the word “property” in the singular means that

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a proper lis pendens must reference only a single property. Because the plaintiff’s lis pendens

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lists sixteen properties within a single notice, the defendants argue it must be expunged. The

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defendants suggest the plaintiff file sixteen separate lis pendens, one for each mining claim.

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The court does not agree.

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The Arizona Revised Statutes’ rules of statutory construction specifically state that

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“words in the singular number include the plural, and words in the plural number include the

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singular.” A.R.S. § 1-214(B). Therefore, the singular word “property” in A.R.S. § 12-1191

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may be construed as referring to properties, in the plural.

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The court further finds that combining all sixteen properties within a single notice is the

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most efficient and economical method for giving prospective purchasers notice of the pending

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action. Accordingly, extending the singular term to include the plural here is consonant with

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the legislative intent. See Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 529, 57

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P.3d 384, 388 ( 2002) (Our courts have always construed A.R.S. § 1-214 as a permissive statute,

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permitting us to interpret the singular as the plural . . . when such an interpretation will enable

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us to carry out legislative intent.) It was not error to reference all sixteen mining claims in the

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same lis pendens notice. See, e.g., In re Ryan A., 202 Ariz. 19, 25, 39 P.3d 543, 549 (App.

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2002) (The singular word “parent” in restitution statute applies to both parents.); but see Estate

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of McGill ex rel. McGill, 203 Ariz. at 529, 57 P.3d at 388 (The plural phrase “negligent acts or

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omissions” does not include the singular where that interpretation would not be “consistent with

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the legislature’s obvious intent.”).

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IT IS ORDERED that the defendants’ motions to expunge the plaintiff’s first amended
notice of pendency of action are DENIED. (Doc. 54, 83)

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DATED this 20th day of December, 2012.

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