Owens v. M.E. Schepp Ltd. Partnership

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