concurring and dissenting:
I agree with the majority opinion except for § II.B. In that section, the majority concludes that there is no “minimal, arguable basis” for claiming that Chevron’s underlying action against Sehirmer could have affected *1481the real property on which it filed a notice of lis pendens. See Maj. Op. at 1479-1480. Accordingly, it holds that Chevron’s notice of lis pendens was “groundless” under Ariz.Rev. Stat. § 33^420. See Maj. Op. at 1479-1480. I respectfully disagree. In light of the record before us, I believe that there is some minimal, arguable basis that Chevron’s underlying action could have affected the real property on which it filed a notice of lis pendens. Accordingly, I would find Chevron’s notice of lis pendens not to be groundless, and I would affirm the district court on that issue.
In my opinion, the majority’s otherwise fine analysis goes astray when it concludes that “[ujnder Arizona’s Statute of Frauds, there is no plausible argument that Sehirmer and Chevron entered into a new, oral option agreement.” Id. (emphasis added). The record clearly shows that a plausible argument exists that Schirmer and Chevron entered into an enforceable oral agreement to extend the expiration date of the original option contract, notwithstanding the Arizona Statute of Frauds, Ariz.Rev.Stat. § 44-101(6).
Under Arizona law, an oral agreement can fall outside the scope of the statute of frauds under a theory of estoppel. “Where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the statute of frauds.” Waugh v. Lennard, 69 Ariz. 214, 222, 211 P.2d 806, 814 (1949). In my opinion, Chevron has adduced sufficient evidence to give rise to a plausible argument regarding a theory of estoppel.
There is evidence that Chevron “acted to [its] detriment solely in reliance on an oral agreement” and that Schirmer was therefore estopped from raising the statute of frauds. Chevron continued to make efforts to obtain a conditional use permit, health permits, and various other operating permits well after the original exercise date had expired and well after the time when Chevron contends it had entered into an alleged oral agreement to extend the option contract. See Chevron’s Opening Brief, at 12-17.1 After the time of the alleged oral agreement, Chevron incurred expenses in its efforts to obtain those permits and to close the deal. It incurred building, fire, health, grading, and other permit expenses exceeding $44,000.00. See id. at 17. It tied up over $726,000.00 in escrow. See id. at 21. Chevron might not have acted in this manner unless it believed that the option contract had been extended. Accordingly, Chevron can argue that it acted to its detriment solely in reliance on Schirmer’s representations that the option agreement had been extended. See id.2
In sum, there is a “plausible” argument that Schirmer and Chevron entered into an enforceable oral agreement to extend the original option contract, notwithstanding the Arizona Statute of Frauds. Put differently, there is some “minimal, arguable basis” for claiming that Chevron’s underlying action against Schirmer could have affected the real property on which it filed a notice of lis pendens. Accordingly, I believe that the majority errs in concluding that Chevron’s notice of lis pendens was “groundless” under Ariz.Rev.Stat. § 33-420.
In all other respects, I generally agree with the majority opinion and the decisions it reaches. I should note, however, that, in view of my conclusion that Schirmer prevailed on the contract claim only, I would reach the same result the majority reaches as to attorney’s fees by a somewhat different route.
. The original exercise date expired on November 13, 1987. According to Chevron, the parties agreed to extend the option contract prior to November 13, 1987. See id. at 10-11. Chevron alleged that it relied on the extension agreement until at least March 11, 1988, when it delivered to an escrow agent sufficient funds to complete the transaction. See generally Chevron's Amended Complaint at 1-8.
. The fact that under the original agreement Chevron could have exercised its option and then rescinded this action if it did not receive the permits does not affect my conclusion. The oral agreement allowed Chevron to seek the permits without committing itself to any firm contractual obligation. Moreover, even if the distinction is more legal than practical in this particular case, it is still sufficient to justify a finding of the requisite "minimal arguable basis.”