from the Superior Court in Pima County No. C20154177 The
Honorable Sarah R. Simmons, Judge
Slutes, Sakrison & Rogers P.C., Tucson By Tom Slutes
Counsel for Plaintiffs/Counterdefendants/Appellees
& Wilmer L.L.P., Tucson By William N. Poorten III and
Kevin J. Parker Counsel for
Lopez & Lizardi P.L.L.C, Tucson By Michael J. Rusing and
Sivan R. Korn Counsel for Third-Party Defendant/Appellee
Presiding Judge Staring authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Vásquez
STARING, PRESIDING JUDGE.
Valer Clark (formerly Valer Austin), on behalf of herself and
the entities she owns and controls, appeals from the judgment
entered after a jury trial, in which the trial court awarded
Dan and Myriam Roe a life estate in a house and surrounding
property and concluded that the divorce settlement agreement
("Settlement") entered between Valer and Josiah
Austin did not require Josiah to defend and indemnify Valer
against the Roes' life estate claim. For the reasons that
follow, we reverse the judgment awarding a life estate to the
Roes, as well as the judgment that Josiah is not required to
defend and indemnify Valer.
and Procedural Background
The parties' disputes stem from a life estate claim
brought by the Roes against Valer, Cuenca Los Ojos Foundation
Trust, El Coronado Ranch & Cattle Co. L.L.C., and El
Coronado Ranch L.L.C. (collectively, "Valer"),
the interpretation of an indemnification provision in the
Settlement. We view the facts in the light most favorable to
upholding the jury verdicts. Crackel v. Allstate Ins.
Co., 208 Ariz. 252, ¶ 3 (App. 2004).
Valer and Josiah divorced in 2015, several years after the
Roes had moved into a house on El Coronado Ranch
("Ranch"), which Valer and Josiah owned jointly.
Valer obtained sole ownership of the Ranch pursuant to the
terms of the Settlement. She subsequently demanded the Roes
vacate the Ranch, and the Roes filed an action for
declaratory judgment claiming a life estate in the house and
surrounding property on the Ranch.
Valer asserted the statute of frauds as a defense to the
Roes' claim, arguing there was no written contract
evincing the creation of a life estate. She also filed a
counterclaim to quiet title to the Ranch. In addition, Valer
filed a third-party complaint against Josiah, alleging the
Settlement required him to defend and indemnify her against
the Roes' life estate claim.
Valer subsequently moved for summary judgment on the
Roes' life estate claim and on her indemnification claim
against Josiah. The trial court denied summary judgment on
both claims, concluding issues of fact existed that required
resolution at trial. At trial, pursuant to Rule 50, Ariz. R.
Civ. P., Valer moved for judgment as a matter of law on the
Roes' life estate claim, and the court denied her motion.
After trial, the jury awarded the Roes a life estate in the
house on the Ranch and found Josiah had not breached the
indemnification provisions of the Settlement. Valer renewed
her motions for judgment as a matter of law on the Roes'
life estate claim and also moved for judgment as a matter of
law on her third-party indemnification claim against Josiah.
The court denied the motions and ultimately entered judgment
in favor of the Roes, granting them a life estate in the
house and 214 surrounding acres on the Ranch, and in favor of
Josiah on the indemnification claim.
Valer appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(1).
Valer argues the statute of frauds bars the Roes' life
estate claim because it is based on an oral contract and,
therefore, the trial court erred when it denied her motions
for judgment as a matter of law. In its denial of the Rule 50
motion Valer made at trial, the court concluded the alleged
acts of part performance by the Roes "raise a question
for the trier of fact as to whether [the Roes'] acts are
unequivocally referable to the alleged agreement."
Subsequently, when denying Valer's renewed motions, the
court concluded it "d[id]n't think any other
explanation is plausible . . . . [e]xcept a life
estate." We review ...