SUPREME COURT OF ARIZONA
En Banc
HAL OWENS, a married man dealing ) Arizona Supreme Court
with his sole and separate ) No. CV-07-0349-PR
property, )
)
Plaintiff/Counterdefendant/ ) Court of Appeals
Appellee, ) Division One
) No. 1 CA-CV 06-0162
v. )
) Maricopa County
M.E. SCHEPP LIMITED PARTNERSHIP, ) Superior Court
an Arizona limited partnership, ) No. CV2005-008357
)
Defendant/Counterclaimant/ )
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Kenneth L. Fields, Judge
The Honorable Colleen L. French, Judge Pro Tempore
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
216 Ariz. 273, 165 P.3d 674 (2007)
VACATED
________________________________________________________________
PERKINS COIE BROWN & BAIN, P.A. Phoenix
By Jordan Green
Steven J. Monde
Attorneys for Hal Owens
McCABE O’DONNELL, P.A. Phoenix
By Joseph I. McCabe
Clifford J. Roth
Attorneys for M.E. Schepp Limited Partnership
________________________________________________________________
H U R W I T Z, Justice
¶1 This case involves a dispute about the partition of
land held by family members as tenants in common. The issue for
decision is whether an alleged oral partition agreement was
removed from the statute of frauds by part performance.
I.
¶2 Hal Owens and the M.E. Schepp Limited Partnership
(“the Partnership”) own land at Missouri Avenue and 22nd Street
in Phoenix (“the Parcel”) as tenants in common. The Parcel
consists of Lots 17 and 18, which are vacant, and Lot 20, which
is improved. Owens owns an undivided two-thirds interest; the
Partnership has the remaining third. Thomas Schepp, Owens’s
cousin, has lived in a house on Lot 20 since 1990; a guest house
on that lot is rented to third parties. Thomas and his brother
Rex Schepp manage the Partnership.
¶3 Owens filed this suit in May 2005, seeking to
partition the Parcel pursuant to Arizona Revised Statutes
(“A.R.S.”) §§ 12-1211 to -1225 (2003). The Partnership
counterclaimed, contending that statutory partition was
inappropriate because the parties had entered into an oral
voluntary partition agreement; the counterclaim sought specific
performance of that agreement.
2
¶4 Owens moved for partial summary judgment, asserting
that the alleged voluntary partition agreement did not exist,
but that even if it did, it was unenforceable under the statute
of frauds, A.R.S. § 44-101(6) (2003). The superior court
granted the motion, ruling that there was no partition
agreement. The court ordered the appointment of three
commissioners to partition the Parcel. See A.R.S. § 12-1215(B).
¶5 A divided court of appeals reversed. Owens v. M.E.
Schepp Ltd. P’ship, 216 Ariz. 273, 165 P.3d 674 (App. 2007).
The court of appeals first found a genuine issue of material
fact as to whether the parties had entered into an oral
voluntary partition agreement. Id. at 279 ¶ 27, 165 P.3d at
680. Turning to Owens’s statute of frauds arguments, the court
held that a voluntary partition agreement falls within the
statute of frauds. Id. at 280-81 ¶¶ 29-33, 165 P.3d at 681-82.
The court then concluded that no writing satisfied the statute.
Id. at 281 ¶¶ 34-36, 165 P.3d at 682. It held, however, that
the summary judgment was erroneous because the Partnership had
produced sufficient evidence of part performance to take the
contract out of the statute of frauds and that this issue should
have been submitted to a jury. Id. at 281-84 ¶¶ 37-42, 165 P.3d
at 682-85. The dissenting judge found the alleged acts of part
performance insufficient as a matter of law to avoid the statute
3
of frauds. Id. at 284-86 ¶¶ 44-50, 165 P.3d at 685-87 (Timmer,
J., dissenting).
¶6 We granted review to consider the question that
divided the court of appeals: Do the alleged acts of part
performance remove the oral partition agreement from the statute
of frauds? We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
¶7 Our consideration of the issue before us centers on
the alleged acts of part performance. We review the facts in
the light most favorable to the Partnership, the party against
whom summary judgment was entered. See Myers v. City of Tempe,
212 Ariz. 128, 130 ¶ 7, 128 P.3d 751, 753 (2006).
A.
¶8 On June 18, 2004, the City of Phoenix issued a
citation requiring cleanup of vegetation on the Parcel. The
Schepp brothers and Owens met in early July to discuss the
citation. At that meeting, Owens proposed removing trees along
Missouri Avenue, the northern boundary of Lots 17 and 18; the
Schepps objected, fearing complaints from neighbors. The
parties eventually agreed to partition the Parcel, with the
Partnership taking Lot 20 and Owens taking Lots 17 and 18.
Because of its improvements, Lot 20 is arguably the most
4
valuable of the three, so Owens claimed that the suggested
partition should involve an equalization payment to him from the
Partnership. No agreement was reached concerning a payment, but
the Schepps understood that Owens might reiterate such a demand
in the future.
¶9 Later in July, a contractor hired by Owens began the
tree removal. Thomas Schepp confronted Owens and objected.
Owens responded that Lots 17 and 18 belonged to him and that the
decision to remove the trees was therefore his alone. After
Owens reaffirmed that a partition agreement had been reached at
the earlier meeting, Thomas withdrew his objection.
¶10 The Partnership later paid $16,600, one-third of the
cost of the tree removal, directly to the landscaping
contractor. The Partnership claims the payment was an
installment on any equalization due Owens under the oral
partition agreement.1
B.
¶11 The Partnership contended below that the oral
partition agreement was removed from the statute of frauds
because of two acts of part performance: (1) Thomas Schepp’s
1
After the tree removal, the parties unsuccessfully
attempted to agree upon an equalization payment. Owens sought
$233,333 and an access easement to Lots 17 and 18. The
Partnership proposed a division with no payment or easement.
5
withdrawal of his objections to the tree removal, and (2) the
payment to the contractor. The court of appeals panel
unanimously agreed that alleged acts of part performance must be
“unequivocally referable” to an alleged contract in order to
remove the agreement from the statute of frauds. Owens, 216
Ariz. at 282 ¶ 38, 165 P.3d at 683 (majority opinion); id. at
284 ¶ 44, 165 P.3d at 685 (dissenting opinion).
¶12 The judges of the court of appeals parted company,
however, on whether the two acts described above met this test.
The majority believed that the Partnership’s explanation that
the two acts were undertaken in reliance on the partition
agreement created an issue of fact as to part performance. Id.
at 282-83 ¶ 39, 165 P.3d at 683-84. The dissenting opinion, on
the other hand, maintained that a court can look only to the
conduct itself when determining whether an act is unequivocally
referable to an oral contract, not to a party’s explanations of
the acts. Id. at 284 ¶ 45, 165 P.3d at 685.
C.
¶13 The Arizona statute of frauds states, in relevant
part:
No action shall be brought in any court in the
following cases unless the promise or agreement upon
which the action is brought, or some memorandum
thereof, is in writing and signed by the party to be
6
charged, or by some person by him thereunto lawfully
authorized:
. . . .
Upon an agreement . . . for the sale of real property
or an interest therein.
A.R.S. § 44-101(6). The court of appeals held, and the parties
do not dispute, that an oral partition agreement among tenants
in common is “for the sale of real property” and thus within the
scope of § 44-101(6). See Owens, 216 Ariz. at 281 ¶ 33, 165
P.3d at 682; see also Restatement (Second) of Contracts § 128(2)
(1981) (“A contract by joint tenants or tenants in common to
partition land into separate tracts for each tenant is within
the Statute of Frauds.”). Nor does Owens contest the holding
below that the superior court erred by granting summary judgment
as to the existence of an oral partition contract. We therefore
assume that such an agreement exists.
¶14 The statute of frauds is by its terms absolute,
providing that “[n]o action” can be brought on oral contracts
for the conveyance of land. Arizona courts, however, have long
recognized limited exceptions to the statute. See, e.g.,
Latimer v. Hamill, 5 Ariz. 274, 277-78, 52 P. 364, 366 (1898)
(characterizing the part performance exception as “too well
settled to require citations of authority”). The cases reason
that because the statute is intended to prevent fraud, specific
7
performance of an oral contract is sometimes required to prevent
the statute from becoming “an instrument by which fraud is
perpetrated.” Trollope v. Koerner, 106 Ariz. 10, 16, 470 P.2d
91, 97 (1970).
¶15 The “part performance” exception to the statute of
frauds is grounded in the equitable principle of estoppel. Gene
Hancock Constr. Co. v. Kempton & Snedigar Dairy, 20 Ariz. App.
122, 125, 510 P.2d 752, 755 (1973), disavowed on other grounds
by Gibson v. Parker Trust, 22 Ariz. App. 342, 345, 527 P.2d 301,
304 (1974); 4 Caroline N. Brown, Corbin on Contracts § 18.1, at
501 & nn. 11-12 (rev. ed. 1997); Restatement (Second) of
Contracts § 129 reporter’s note. The label “part performance”
is in some ways a misnomer: the relevant acts need not be
required by the oral agreement, but rather must be undertaken in
reliance on the agreement. Restatement (Second) of Contracts
§ 129 cmt. a; 4 Corbin on Contracts § 18.7, at 513-14;
Restatement (First) of Contracts § 197 cmt. b (1932).
¶16 In addition to providing an equitable basis for
ordering specific performance, acts of part performance serve an
important evidentiary function - they excuse the writing
required by the statute because they provide convincing proof
that the contract exists. See Restatement (Second) of Contracts
§ 129 cmt. b; 4 Corbin on Contracts § 18.11, at 521. So that
8
this exception does not swallow the rule, the acts of part
performance take an alleged contract outside the statute only if
they cannot be explained in the absence of the contract. See
Gene Hancock, 20 Ariz. App. at 125, 510 P.2d at 755; In re
Marriage of Benson, 116 P.3d 1152, 1160 (Cal. 2005); Glazer v.
Dress Barn, Inc., 873 A.2d 929, 951 (Conn. 2005); Martin v.
Scholl, 678 P.2d 274, 276-78 (Utah 1983). Judge Cardozo
eloquently described the part performance exception more than
eighty years ago:
There must be performance “unequivocally referable” to
the agreement, performance which alone and without the
aid of words of promise is unintelligible or at least
extraordinary unless as an incident of ownership,
assured, if not existing.
. . . .
What is done must itself supply the key to what
is promised. It is not enough that what is promised
may give significance to what is done.
Burns v. McCormick, 135 N.E. 273, 273 (N.Y. 1922). Cardozo
illustrated the point with two scenarios:
The housekeeper who abandons other prospects of
establishment in life and renders service without pay
upon the oral promise of her employer to give her a
life estate in land must find her remedy in an action
to recover the value of the service. Her conduct,
separated from the promise, is not significant of
ownership, either present or prospective. On the
other hand, the buyer who not only pays the price, but
possesses and improves his acre, may have relief in
equity without producing a conveyance. His conduct is
9
itself the symptom of a promise that a conveyance will
be made.
Id. at 273-74 (citations omitted).
¶17 The Burns reasoning is reflected in the First
Restatement of Contracts, which recognized the part performance
exception only when the purchaser “makes valuable improvements
on the land” or “takes possession . . . and also pays a portion
or all of the purchase price.” Restatement (First) of Contracts
§ 197. See Condon v. Ariz. Hous. Corp., 63 Ariz. 125, 133, 160
P.2d 342, 346 (1945) (applying First Restatement).
¶18 The Second Restatement, adopted in 1981, relies
expressly on principles of estoppel, and thus provides a broader
formulation of the part performance rule:
A contract for the transfer of an interest in land may
be specifically enforced notwithstanding failure to
comply with the Statute of Frauds if it is established
that the party seeking enforcement, in reasonable
reliance on the contract and on the continuing assent
of the party against whom enforcement is sought, has
so changed his position that injustice can be avoided
only by specific enforcement.
Restatement (Second) of Contracts § 129. Under § 129, acts
other than undertaking improvements, paying the purchase price,
and taking possession can be considered as part performance.
Id. § 129 cmt. d. But the Second Restatement does not abandon
the traditional requirement that the acts of part performance be
“unequivocally referable” to the alleged agreement. Id. The
10
modern case law thus requires that any alleged act of part
performance be consistent only with the existence of a contract
and inconsistent with other explanations such as ongoing
negotiations, Glazer, 873 A.2d at 950-51, or an existing
relationship between the parties, Nelson v. Miller, 479 So. 2d
1225, 1226 (Ala. 1985) (tenants in common and brother-sister);
Sword v. Sweet, 92 P.3d 492, 500 (Idaho 2004) (husband-wife);
Player v. Chandler, 382 S.E.2d 891, 894 (S.C. 1989) (landlord-
tenant); Martin, 678 P.2d at 279 (employer-employee). If the
alleged acts do not conclusively establish that a contract
exists, reliance upon them would circumvent the evidentiary
function of the statute.2
D.
¶19 The court of appeals held that the Partnership’s
withdrawal of its objection to the tree removal and its payment
of one-third of the landscaping contractor’s bill raised a
triable issue of fact about part performance. We disagree.
Neither act is “unequivocally referable” to the alleged
contract, or put differently, neither act is “of such character
2
The Second Restatement also stresses a principle noted in
our cases: The part performance exception, grounded in
principles of equity, should not be invoked unless necessary to
avoid injustice. See Remele v. Hamilton, 78 Ariz. 45, 49, 275
P.2d 403, 406 (1954); Haynie v. Taylor, 69 Ariz. 339, 346, 213
P.2d 684, 689 (1950).
11
as not to be reasonably explicable on other grounds.” 4 Corbin
on Contracts § 18.23, at 564; see also Verzier v. Convard, 52 A.
255, 257 (Conn. 1902) (stating that part performance must
consist of acts that “cannot, in the ordinary course of human
conduct, be accounted for in any other manner than as having
been done in pursuance of a contract” (citing John N. Pomeroy,
Specific Performance of Contracts § 108, at 154 (2d ed. 1897))).
¶20 The payment to the contractor is not convincing
evidence of an agreement to partition, let alone “unequivocally
referable” to such a contract. Given that the Partnership had a
one-third interest in the Parcel, its payment of one-third of
the contractor’s bill is more consistent with the continued
existence of the co-tenancy than with an agreement to partition.
See 20 Am. Jur. 2d, Cotenancy & Joint Ownership § 64, at 157-58
(2d ed. 1995) (noting general rule that tenants in common share
financial responsibility for maintenance of property in
proportion to their interests). Indeed, had the parties
actually agreed to partition the Parcel, the Partnership would
have had no financial responsibility for tree removal on Lots 17
and 18.
¶21 Similarly, the withdrawal of objections to the tree
removal, while perhaps more probative of an agreement to
partition, is also consistent with a number of other scenarios,
12
including continued co-tenancy, cf. Jackson v. Low Cost Auto
Parts, Inc., 25 Ariz. App. 515, 516, 544 P.2d 1116, 1117 (1976)
(noting right of tenant in common to use and enjoy the entire
property “as if he were the sole owner, provided his actions do
not prejudice the use and enjoyment of the property by the other
co-owner”), or ongoing negotiations about partition.3 Once
again, if, as the Partnership contends, Lots 17 and 18 had
already been promised to Owens, it is difficult to understand
why Thomas Schepp felt he could object to, let alone prevent,
Owens’s actions.
¶22 The Partnership argues, however, that because Thomas
Schepp’s affidavit must be taken as true for purposes of summary
judgment, his explanations for the acts also must be accepted.
It follows, the Partnership argues, that the alleged acts of
part performance were unequivocally referable to the partition
contract because Schepp claims the contract was the only reason
for these acts.
¶23 This argument fails. The issue is not whether a court
must take as true assertions in an affidavit of a party opposing
a summary judgment motion. Rather, we must decide whether
3
Typically, forbearance to act carries less evidentiary
value in showing part performance than an affirmative act
because inaction can easily be ascribed to reasons other than a
contract. See, e.g., Martin, 678 P.2d at 279; Beall v. Beall,
434 A.2d 1015, 1020 (Md. 1981).
13
Schepp’s explanations, even if assumed true, can be used to
satisfy the part performance rule as a matter of evidence. We
hold that these explanations are not relevant. Under Cardozo’s
classic formulation, the alleged part performance must be “alone
and without the aid of words of promise . . . unintelligible or
at least extraordinary unless as an incident of ownership.”
Burns, 135 N.E. at 273. The Partnership’s perceived need to
explain why the acts were undertaken suggests that each act does
not, in Cardozo’s words, “itself supply the key to what is
promised.” Id.
¶24 The statute of frauds enacts a clear legislative
prohibition against enforcement of an oral agreement for the
conveyance of land. The requirement that the alleged acts of
part performance be unequivocally referable to the alleged
contract assures that only in rare circumstances will courts
exempt oral agreements from the plain terms of the statute. See
Coleman v. Coleman, 48 Ariz. 337, 344, 61 P.2d 441, 444 (1936)
(stating the statute of frauds “prevent[s] existing estates in
land from being upset by parol evidence”). The statutory policy
would be severely compromised if the statute of frauds could be
avoided whenever a plaintiff claimed that he undertook any act
in reliance on an alleged agreement. If such were the case, the
part performance exception would virtually swallow the rule.
14
E.
¶25 The Partnership also relies on Restatement (Second) of
Contracts § 128(2), which provides:
A contract by joint tenants or tenants in common to
partition land into separate tracts for each tenant is
within the Statute of Frauds but becomes enforceable
notwithstanding the Statute as to each tract when
possession of it is taken in severalty in accordance
with the agreement.4
The Partnership asserts that § 128(2) is satisfied because the
parties took possession of separate tracts of the Parcel in
severalty. In support of that argument, the Partnership claims
that after the parties agreed to partition, in addition to
removing the trees from Lots 17 and 18, Owens installed fencing
and other improvements on these lots, brought horses onto the
lots, and regularly trimmed weeds and grass on the two lots,
while Thomas Schepp continued to reside on Lot 20.
¶26 In some cases, evidence that tenants in common took
exclusive possession of divided portions of a tract can provide
compelling evidence that an oral partition agreement exists.
But such is not the case here. Thomas Schepp resided on Lot 20
for some fourteen years before the alleged partition agreement;
his continued residence is thus as consistent with continuation
of the status quo as with the alleged agreement. Similarly,
4
A similar rule appears in Restatement (First) of Contracts
§ 196(2).
15
Owens’s alleged acts are consistent with his right to use the
Parcel and improve the property as a tenant in common. Nor does
the record suggest that any co-tenant was excluded from any
portion of the Parcel after the alleged agreement. Therefore,
neither party’s alleged acts of possession are unequivocally
referable to the alleged contract.
III.
¶27 For the reasons above, the court of appeals erred in
concluding that the alleged acts of part performance took the
oral partition agreement outside the statute of frauds.5 The
Partnership contends, nonetheless, that the partial summary
judgment should be vacated on a ground not addressed by the
court of appeals in light of its decision to remand this case
for trial. The Partnership argues that the trial court abused
its discretion in denying its motion to continue the summary
judgment proceedings until it could depose Owens and examine his
documents. See Ariz. R. Civ. P. 56(f) (providing that the
superior court may refuse an application for summary judgment
when the opposing party cannot for reasons stated by affidavit
present facts essential to the opposition).
5
Given our conclusion that the parties’ acts did not take
the alleged contract outside the statute of frauds, we need not
consider whether, in light of the statutory partition remedy,
“injustice can be avoided only by specific enforcement.”
Restatement of Contracts (Second) § 129. See n.2, supra.
16
¶28 The superior court did not abuse its discretion in
refusing to allow the requested document discovery. Under
§ 129, a party seeking equitable enforcement of an oral contract
to convey land must show he acted to his detriment in reliance
on the alleged agreement. See Rentz v. Grant, 934 So. 2d 368,
372, 374-75 (Ala. 2006). Only the Partnership’s own actions,
not those of Owens, can show the required detrimental reliance.
The Partnership could not have relied on actions or statements
of Owens about which it was unaware. Further document discovery
therefore could not have aided the Partnership in proving part
performance.
¶29 The Partnership’s request to depose Owens presents a
more difficult issue. An admission under oath by the party
opposing enforcement of an oral contract that the contract
exists can take the agreement outside of the statute of frauds.
See 4 Corbin on Contracts § 14.2, at 175-80; see also
Restatement (Second) of Contracts § 129 cmt. d. The judicial
admission exception is a “common-sense recognition that if the
defendant admitted in a pleading that he had made a contract
with the plaintiff, the purpose of the statute of frauds –
protection against fraudulent or otherwise false contractual
17
claims – was fulfilled.” DF Activities Corp. v. Brown, 851 F.2d
920, 923 (7th Cir. 1988) (Posner, J.).6
¶30 Under the facts of this case, the superior court did
not abuse its discretion in refusing to continue the summary
judgment motion to allow Owens’s deposition. Owens’s verified
complaint seeking statutory partition asserted, under penalty of
perjury, that “[t]he parties have been unable to agree on
partition in accordance with their respective interests.” More
importantly, Owens specifically denied the existence of the
alleged contract in his verified reply to the Partnership’s
counterclaim, stating under penalty of perjury that he
“particularly and specifically” denied “the allegations . . .
wherein it is claimed that the parties entered into a ‘Partition
Agreement.’” The reply later states, again under penalty of
perjury, that “[t]he alleged ‘Partition Agreement’ referenced in
the Counterclaim does not exist.” Thus, the gist of the motion
for continuance was the Partnership’s hope that Owens would
disavow these verified statements in his deposition.
¶31 The United States Court of Appeals for the Seventh
Circuit has addressed a virtually identical situation. In DF
6
For obvious reasons, the exception applies only when the
alleged admission occurs during a judicial proceeding. If the
plaintiff’s statement that the defendant had admitted to the
contract outside of court were allowed to circumvent the statute
of frauds, the statute would have no force at all.
18
Activities, the plaintiff sought to enforce an oral contract for
the sale of goods. 851 F.2d at 921. The defendant moved to
dismiss under the statute of frauds and appended to her motion
an affidavit denying the existence of any contract. Id. The
district court granted the motion to dismiss. Id. at 922. On
appeal, the plaintiff cited Uniform Commercial Code § 2-201(3),
which exempts a contract for the sale of goods from the statute
of frauds when “the party against whom enforcement is sought
admits in his pleading, testimony or otherwise in court that a
contract for sale was made,” and argued that the trial court had
erred by refusing to allow the deposition of the defendant. Id.
at 922.
¶32 The Seventh Circuit nonetheless affirmed. Id. at 924.
It noted that further discovery might well be appropriate if
there were “a bare motion to dismiss, or an answer, with no
evidentiary materials,” because under such circumstances “the
possibility remains a live one that, if asked under oath whether
a contract had been made, the defendant would admit it had
been.” Id. at 922. But when the defendant already has sworn
under oath that no contract exists, “a plaintiff in a suit on a
contract within the statute of frauds should not be allowed to
resist a motion to dismiss . . . by arguing that his luck may
improve in discovery.” Id. at 923. To hold otherwise would
19
“invite the unedifying form of discovery in which the examining
lawyer tries to put words in the witness’s mouth and construe
them as admissions.” Id. Indeed, if such discovery were
required, “the statute of frauds becomes a defense of meager
value,” id., and its purpose of avoiding litigation over whether
a contract exists would be undermined.7
¶33 In this case, Owens unequivocally and repeatedly
denied under oath that the contract existed. See Ariz. R. Civ.
P. 80(i) (treating statements made under penalty of perjury as
if made under oath). Under these circumstances, the superior
court did not abuse its discretion by refusing to allow further
discovery on the bare hope that Owens would disavow these
statements if deposed.
IV.
¶34 Finally, the Partnership argues that, even if
statutory partition is warranted, the superior court erred by
not instructing the commissioners that they could issue a report
awarding Lot 20 to the Partnership and Lots 17 and 18 to Owens,
with any disparity in values offset by an equalization payment.
7
The dissenting judge in DF Activities agreed that a trial
judge would not abuse his discretion in denying further
discovery in light of a defendant’s express sworn denial of a
contract. 851 F.2d at 924-25 (Flaum, J., dissenting). He
thought, however, that the defendant’s affidavit in that case
did not contain a “blanket denial” of the contract’s existence.
Id. at 925.
20
The superior court did not include such an instruction in its
order appointing the commissioners, but took no express position
on the authority of the commissioners to so recommend. The
court of appeals did not address this issue in light of its
decision to vacate the order requiring statutory partition.
¶35 The superior court did not err in refusing to give the
requested instruction to the commissioners. “[P]artition is a
statutory procedure and, absent an agreement between the parties
to voluntarily divide the property, any remedy must comply with
the statutory scheme.” Cohen v. Frey, 215 Ariz. 62, 65 ¶ 6, 157
P.3d 482, 485 (App. 2007). Our statutes authorize commissioners
to make a report to the court either dividing the subject
property equitably, A.R.S. § 12-1216, or, if such a division is
not possible, recommending sale of the property, id. § 12-
1218(A). The statutes do not contemplate that in those cases in
which the commissioners conclude that the property cannot be
divided equitably, they instead propose an equalization payment.
See 59A Am. Jur. 2d, Partition § 181, at 107 (2d ed. 1987)
(“[I]n the absence of a statute, it appears that such power does
not reside in the commissioners in a partition proceeding.”).
¶36 Because the Partnership argues only that the superior
court should have instructed the commissioners to arrive at an
equalization payment, we need not decide today whether the court
21
itself has such equitable power. We note, however, that when
commissioners conclude that an equitable division is not
possible, they must report their reasons for so concluding to
the superior court. A.R.S. § 12-1218(A). That report will
necessarily include their evaluation of the Parcel as a whole
and their conclusions as to why the Parcel cannot practically be
divided in a manner giving each co-tenant his respective
interest. Any party may file objections to such a report and is
thereafter entitled to a hearing before the superior court. Id.
§ 12-1219. If the commissioners conclude that an equitable
division of the Parcel is impossible, the Partnership can raise
its arguments concerning the court’s power to order an
equalization payment at that time and any decision will be
subject to appellate review on a full record.
V.
¶37 For the foregoing reasons, we vacate the opinion of
the court of appeals and affirm the judgment of the superior
court. This case is remanded to the superior court for further
proceedings consistent with this opinion.
_______________________________________
Andrew D. Hurwitz, Justice
22
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
23