White v. White

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEVEN A. WHITE, Plaintiff/Appellee,

v.

CURTIS LEE WHITE, Defendant/Appellant.

No. 1 CA-CV 25-0367
FILED 12-19-2025

Appeal from the Superior Court in Mohave County
No. S8015CV202301559
The Honorable Eric Gordon, Judge

VACATED AND REMANDED

COUNSEL

The Barlow Law Firm, LLC, Fredonia
By Matthew I. Barlow
Counsel for Plaintiff/Appellee

Knochel Law Offices, Bullhead City
By Keith S. Knochel
Counsel for Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Veronika Fabian joined.

M O R S E, Judge:

¶1 Curtis Lee White appeals a jury verdict awarding Steven A.
White damages for breach of contract, quiet title for real property, and
attorney fees and costs. For the following reasons we vacate and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Steven1 and Curtis are father and son, respectively. In
November 2021, Steven quitclaimed real property to Curtis. The precise
circumstances surrounding the transfer are unclear. A dispute with
neighbors over a shared water well on the property escalated, resulting in
a criminal charge against Steven. Steven claims he reached a deal with the
prosecutor to drop the case in exchange for transferring the property to
someone else and moving away for a year. No documents in the record
support this claim, but the parties did not dispute that the prosecutor
dropped the case soon after Steven transferred the property to Curtis.

¶3 Curtis moved into the property with his wife. A year later,
Steven requested that Curtis quitclaim the property back to him, claiming
they had made an oral agreement to do so at the time of the initial transfer.
Curtis refused, and Steven sued for breach of contract, unjust enrichment,
and to quiet title. At trial, the jury awarded Steven title to the property,
$10,000 in damages, and approximately $39,000 in attorney fees and costs.
Curtis timely appealed, and we have jurisdiction under A.R.S. §§ 12-
2101(A)(1), and -120.21.

DISCUSSION

¶4 Curtis challenges the superior court's jury instructions and
argues the jury reached incorrect conclusions, resulting in legal error. He
claims the superior court improperly instructed the jury to decide: (1)
whether Curtis breached the alleged oral contract with Steven; (2) whether
that oral contract was subject to the statute of frauds; and (3) whether the

1 Because the parties share a last name, we use their given names for clarity.

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part-performance exception to the statute of frauds applied. Curtis claims
these instructions allowed the jury to decide purely legal issues that should
have been decided by the judge. He also claims that his pre-trial objection
to the proposed jury instructions and verdict form preserved the issue for
appeal. Alternatively, he argues that the instructions resulted in
fundamental reversible error under Ariz. R. Civ. P. 51.

I. Instructional Error.

¶5 As a threshold matter, we need to determine whether Curtis
preserved the error for appeal.

¶6 Rule 51 offers two avenues for relief. Curtis could appeal
erroneous jury instructions, if he properly objected at trial. Ariz. R. Civ. P.
51(d)(1)(A). A proper objection is one in which the party asserts an
objection on the record along with the specific grounds for the objection.
Ariz. R. Civ. P. 51(c)(1). A timely objection is made before the instructions
and arguments are delivered to the jury. Ariz. R. Civ. P. 51(b)(3)(C). But
absent proper objection, Curtis could claim fundamental prejudicial error.
Ariz. R. Civ. P. 51(d)(2). Fundamental error goes to the foundation of the
case and deprives the party of a fair trial. Mill Alley Partners v. Wallace, 236
Ariz. 420, 423, ¶ 9 (App. 2014). Curtis must also show that he was
prejudiced by the instruction. Id.

¶7 Generally, failing to properly object before the jury retires
bars challenges to the instructions on appeal. Czarnecki v. Volkswagen of
America, 172 Ariz. 408, 418 (App. 1991). Rule 51 requires parties to object
with specificity so the court may not be led into error. Jaeger v. Petroni, 133
Ariz. 174, 177 (App. 1982). And we have long held that Rule 51 requires
that the objection be made at trial, at the time the instructions are being
settled.2 Musgrave v. Githens, 80 Ariz. 188, 192 (1956). Curtis filed a pre-trial
objection to Steven's first set of proposed preliminary instructions,
challenging the instruction regarding the breach-of-contract claim and
asserting the statute of frauds as a defense. At the beginning of trial, the
court reviewed the pending pre-trial objections to the preliminary
instructions. At the end of trial, the court reviewed the final instructions on
the statute of frauds and the part-performance exception. Each time, the

2 Ariz. R. Civ. P. 51(c)(2)(A) cmt. indicates Rule 51 was restyled in 2017,

adopting Fed. R. Civ. P. 51's requirement that objections be made before the
jury retires and formally incorporating the Arizona common law doctrine
of fundamental error. These changes do not affect our discussion of
still-valid principles previously established in our case law.

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court asked Curtis if he wanted to object to any of the instructions. Curtis
declined to do so, failing to renew and preserve his objections for appeal.
Accordingly, Curtis is only entitled to relief if he can demonstrate
fundamental error.

A. Breach of Contract.

¶8 In his brief, Curtis claims the court should not have asked the
jury to decide whether there was an oral contract that he breached because
that was not a disputed fact. The trial transcript, however, says otherwise.
Curtis never agreed that an oral agreement existed. This was the key
disputed fact—unquestionably the domain of the jury to decide. The same
is true even if we were to assume, for the sake of argument, that Curtis's
original pre-trial objection preserved the issue for review. The court
correctly instructed the jury.

B. Statute of Frauds.

¶9 Curtis also claims the court should not have asked the jury to
decide whether the oral contract was subject to the statute of frauds because
that was a question of law. We agree. The statute of frauds requires
contracts for the conveyance of real property to be in writing and signed by
the party charged. A.R.S. § 44-101(6). Once the jury found an oral contract
existed, that contract was subject to the statute of frauds as a matter of law.
But because the jury correctly reached that conclusion, any error did not
prejudice Curtis.

C. Part-Performance Exception.

¶10 Curtis next argues the superior court's instruction on the
part-performance exception was erroneous because it misstated the law.
He asserts the court failed to instruct the jury that the alleged acts of
performance must be unequivocally referable to the existence of the alleged
oral contract.

¶11 We review whether a jury instruction correctly states the law
de novo. Cavallo v. Phoenix Health Plans, Inc., 254 Ariz. 99, 104, ¶ 15 (2022).
The instruction must be proper under the law, supported by evidence, and
related to important issues not addressed by other instructions. See
Czarnecki, 172 Ariz. at 411. But because Curtis did not object to this
instruction at all, we review for fundamental error only.

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¶12 Part performance is an equitable exception to the statute of
frauds that excuses the written-contract requirement if the acts of part
performance cannot be explained in the absence of the alleged oral
contract—i.e., they are "unequivocally referable" to that contract. Owens v.
M.E. Schepp Ltd. P'ship, 218 Ariz. 222, 225–26, ¶ 14–16 (2008). This prevents
acts that do not conclusively establish the existence of an oral contract from
circumventing the statute of fraud's evidentiary safeguards. Id. at 227, ¶ 18.
The proponent of the alleged oral contract has the burden to show that his
acts of part performance can only be explained by the existence of the
alleged contract. Roe v. Austin, 246 Ariz. 21, 25, ¶ 11 (App. 2018). The act
must also be inconsistent with other explanations like ongoing negotiations
or an existing relationship between the parties. Owens, 218 Ariz. at 227,
¶ 18.

¶13 Part performance is a mixed question of law and fact. Valdez
v. Delgado, 254 Ariz. 495, 499, ¶ 14 (App. 2019). Whether an act is sufficient
to constitute part performance is a question of law, normally reviewed de
novo. Id. Whether a particular act occurred is a factual determination,
normally reviewed for clear error. Id.

¶14 Here, Steven's only alleged act of part performance was
quitclaiming of the property to Curtis. Because the quitclaim deed
documented the transfer, the parties never disputed that it occurred, and
there was no issue of fact for the jury to decide. The court decides questions
of law, A.R.S. § 22-323(B), so it should have decided whether that act, as
alleged, constituted part performance. Instructing the jury to make the
decision was error.

¶15 An instruction warrants reversal only when it both harms the
complaining party and directly contradicts the rule of law. State Farm Fire
& Cas. Ins. Co. v. Grabowski, 214 Ariz. 188, 192, ¶ 13 (App. 2007). We must
also have substantial doubt the instructions properly guided the jury
deliberations. Id. This instruction was contrary to law because the court
improperly asked the jury to decide a legal question. This error prejudiced
Curtis because any partial performance must also be unequivocally
referable to the alleged oral contract. See Owens, 218 Ariz. at 227, ¶ 18
(explaining that the long-standing unequivocally referable requirement has
never been eliminated from the part-performance exception). An
unequivocally referable act conclusively shows an oral contract exists and
cannot be reasonably explained on other grounds. Id. at 227, ¶ 19. Where
a reasonable alternative explanation exists, the act is not unequivocally
referable to the alleged oral agreement as a matter of law. Steven and Curtis
are father and son—a prima facie case of a preexisting relationship that can

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explain the transfer. See id., 218 Ariz. at 227, ¶ 18 (citing examples of familial
relationships like husband-wife or brother-sister as inconsistent with the
unequivocally referable requirement).

¶16 And even without the familial relationship, the unequivocally
referable requirement sets a very high bar to establish part performance.
Compare Roe, 246 Ariz. at 26, ¶ 14 (finding Appellants' alleged acts of selling
their own property, moving into and working on a ranch, and spending
over $150,000 to finish the ranch house were not unequivocally referable to
a life estate when they could have been a down payment for purchase or
payments on a lease), and MH Inv. Co. v. Transamerica Title Ins. Co., 162 Ariz.
569 (App. 1989) (finding that Transamerica's actions during the closing of
15 sales were not unequivocally referable to an alleged oral agreement,
when they were consistent with escrow instructions), and Mac Enterprises,
Inc. v. Del E. Webb Dev. Co., 132 Ariz. 331 (App. 1982) (finding that alleged
acts of part performance are not unequivocally referable when there is no
privity of contract between the parties and the record shows no evidence of
an oral agreement), with Valdez, 254 Ariz. at 500, ¶ 16 (finding that paying
the downpayment and making improvements totaling 50% of the home's
purchase price were acts inexplicable in the absence of a contract for sale),
and William Henry Brophy Coll. v. Tovar, 127 Ariz. 191 (App. 1980) (finding
that possession, rent payments, and improvements were unequivocally
referable to an oral lease for a short period of time, despite not being
otherwise unequivocally referable for the majority of the time frame at
issue).

¶17 At trial, Curtis claimed the property was a gift from a father
to his oldest son, conveyed to avoid the private lawsuit. Steven made
numerous statements at trial, including that he transferred the property to
Curtis to "bless him" and give him a place to stay for five years while Curtis
builds his own property, and because he wanted to avoid the criminal
charges. Each of those is a reasonable alternative explanation inconsistent
with an alleged oral promise to reconvey the property after one year.

¶18 Because the initial transfer of the property from Steven to
Curtis was not unequivocally referable to the alleged oral agreement to
reconvey the property after one year, the court erred in instructing the jury
on the part-performance exception. And allowing the jury to find the
part-performance exception without instruction on the unequivocally
referable requirement, went to the foundation of the case, deprived Curtis
of a fair trial, and prejudiced Curtis. Thus, despite Curtis's failure to object,
we find fundamental error under Rule 51.

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II. Attorney Fees.

¶19 Steven requests attorney fees and costs on appeal under
A.R.S. §§ 12-341, -341.01, -341.02, -342, and -1103(B). ARCAP 21(a). Steven
is not the prevailing party, and we deny his request. Because Curtis
prevails, he is entitled to costs, upon complying with ARCAP 21. See A.R.S.
§ 12-342.

CONCLUSION

¶20 We vacate and remand for entry of judgment for Curtis.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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