Statute of Frauds Not Applicable Only Where "Part Performance Unequivocally Refers to Contract and Supplies Key to What Is Promised"

Owens v. M.E. Scheep Limited Partnership, 529 Ariz. Adv. Rep. 3 (Sup. Ct., March 8, 2008) (Justice Hurwitz). THE STATUTE OF FRAUDS NOT APPLICABLE ONLY WHERE "PART PERFORMANCE UNEQUIVOCALLY REFERS TO CONTRACT AND SUPPLIES KEY TO WHAT IS PROMISED." Family members held a piece of property as tenants in common when they received a citation from the City of Phoenix requiring cleanup of vegetation on the land. The family members could not agree how to properly clean up the lot particularly to respect to the removal of certain trees. The family members therefore agreed to partition the property amongst themselves so that those wishing to remove trees could do so without affecting the decision others might make regarding their portion of the property. Later, one of the family members challenged the oral partitioning of the property and a lawsuit and counterclaim followed. The family member objecting to the partitioning claimed that the agreement was oral only and barred by the statute of frauds. The partnership countered, stating that part performance of the contract and detrimental reliance upon that performance took the contract and the oral agreement to petition the real estate outside of the statute of frauds. The act claimed to constitute partial performance was the partnership's payment of one-third of the cost of removing trees from the objecting family members' partition portion of the real estate. Because here, the payment of a part of the tree removal fees did not unequivocally refer to the oral contract itself, and more importantly did not supply the key to what was promised, i.e., petitioning of the land and equalization payment to family members with lesser valued land as a result of the partitioning, the statute of frauds barred enforceability of the oral partitioning agreement.

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