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Marco Crane & Rigging Co. v. Masaryk

Court of Appeals of Arizona, First Division

December 30, 2014

MARCO CRANE & RIGGING CO., an Arizona corporation, Plaintiff/Appellee,
v.
LINDA S. MASARYK and JOHN DOE MASARYK, wife and husband; LSM L.L.C., an Arizona limited liability company; NGM INSURANCE CO., a Florida insurance company, Defendants/Appellants

As Amended September 30, 2015.

Appeal from the Superior Court in Maricopa County. No. CV2009-020422. The Honorable J. Richard Gama, Judge.

The Law Offices of Dominica J. Minore, P.C., Scottsdale By Dominica J. Minore Counsel for Plaintiff/Appellee.

Bluff & Associates, Phoenix By Guy W. Bluff, Bruce A. Smidt Counsel for Defendants/Appellants.

Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.

OPINION

Page 491

[236 Ariz. 449] Randall M. Howe, Judge:

[¶1] Linda S. Masaryk, LSM, Inc., and NGM Insurance Co., appeal the superior court's grant of summary judgment in favor of Marco Crane & Rigging, Co. The superior court found that Marco was entitled to foreclose on its mechanics' lien against Masaryk's house. Because Masaryk satisfied the statutory requirements to be an " owner-occupant" at the time Marco recorded the lien, we hold that the lien violated A.R.S. § 33-1002(B) and therefore reverse and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

[¶2] In 2003, Masaryk obtained title to a parcel of land in Paradise Valley, which she recorded with the Maricopa County Recorder. In 2006, Masaryk hired Mendelsohn Construction to build a house on the parcel. Mendelsohn entered into a subcontract agreement with Marco to erect structural steel for the house. Within 20 days of commencing work, Marco served Masaryk and Mendelsohn with a preliminary twenty-day notice of lien.

[¶3] In October 2008, Masaryk's architect told Mendelsohn to cease construction. Because Marco was not paid, it recorded a mechanics' lien against the house for the amount of its unpaid invoices in December 2008. Marco then sued Masaryk and Mendelsohn to foreclose the lien. In November 2009, Masaryk recorded a lien transfer bond issued by surety NGM to discharge the lien from encumbering the house.

[¶4] In February 2010, Masaryk transferred title to the house to her limited liability company, LSM, which she solely owned to hold personal investments. The home was built and ready for occupancy on March 16, 2010. On April 15, 2010, Masaryk moved into the house, and lived there until October 2011. In May 2010, Marco amended its complaint to add NGM and LSM as defendants. The amended complaint revised its claim for relief, requesting a judgment of payment of the lien from the bond.

[¶5] Masaryk moved for summary judgment, arguing that the lien was invalid because she was an owner-occupant pursuant to Arizona Revised Statute (" A.R.S." ) § 33-1002(A)(2). Marco cross-moved for summary judgment, arguing that Masaryk was not entitled to owner-occupant status because she had transferred title to the house to LSM and did not intend to reside there. After oral argument, the superior court granted Marco's cross-motion for summary judgment, finding that the transfer of the house to LSM divested Masaryk of " owner-occupant" status.

[¶6] The parties then filed multiple motions concerning the validity of Marco's lien foreclosure and bond discharge claims. The superior court granted Marco's motion on both claims and ...


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