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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LESLEY PILLSBURY, Plaintiff/Appellant/Cross-Appellee,

v.

WILLIAM FORNEY BUTLER, Defendant/Appellee/Cross-Appellant.

No. 1 CA-CV 20-0187 

Appeal from the Superior Court in Maricopa County

No. CV2019-001762

The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Alexander R. Arpad, Phoenix

Co-Counsel for Plaintiff/Appellant/Cross-Appellee

Byrl R. Lane, Phoenix

Co-Counsel for Plaintiff/Appellant/Cross-Appellee

Udall Shumway PLC, Mesa

By Joel E. Sannes, Carson T.H. Emmons

Counsel for Defendant/Appellee/Cross-Appellant

FILED 03-25-2021
PILLSBURY v. BUTLER

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Lesley Pillsbury appeals the grant of summary judgment 

dismissing her contract claims against William Forney Butler. Both 

Pillsbury and Butler appeal the judgment determining Pillsbury’s interest 

in two properties held as tenants in common. Pillsbury also appeals the 

denial of her motion to amend to add a fraud claim, and Butler crossappeals the denial of attorneys’ fees. We affirm. 

BACKGROUND

¶2 Pillsbury and Butler lived together for over 18 years. They 

purchased a home in Gilbert that was ultimately titled to Pillsbury as the 

sole owner. Butler works in the home-building industry, and in 2012, he 

and Pillsbury moved from Gilbert into a house on 53rd Way in one of 

Butler’s developments in Cave Creek. After the Gilbert property sold, 

Pillsbury paid Butler $65,000 towards the purchase of the 53rd Way home. 

The parties initially took title as joint tenants with right of survivorship but 

later changed the title to a tenancy in common. Butler signed a beneficiary 

deed granting his interest in the property to Pillsbury upon his death, and 

Pillsbury named her adult son as the beneficiary of her interest in the 

property upon her death. 

¶3 In 2017, the parties moved into another home on 27th Street 

in Cave Creek and put the 53rd Way property up for sale. They took title to 

the 27th Street property as tenants in common and signed beneficiary deeds 

like those for the 53rd Way property. The 53rd Way property sold in March

of 2019, and proceeds of $501,530.72 are being held in escrow. 

¶4 After the parties ended their relationship, Pillsbury sued 

Butler alleging breach of contract, breach of the covenant of good faith and 

fair dealing, and unjust enrichment for failing to honor purported oral 

agreements. She claimed she was entitled to 50% of the proceeds from the 

53rd Way property, 100% of the 27th Street property, and either $2,000 in 

monthly support payments or $504,000 from Butler. She claimed Butler was 

unjustly enriched because she paid the parties’ living expenses throughout 
PILLSBURY v. BUTLER

Decision of the Court

3

their relationship and did not receive the properties or the promised $2,000 

monthly payments. Butler counterclaimed, asking for a judicial 

determination as to the parties’ ownership interests in the properties and 

their proceeds. He also sought to partition the 27th Street property through 

a sale and divide the proceeds. 

¶5 Butler moved for summary judgment, which the superior 

court granted in part, finding the alleged oral agreements were 

unenforceable under the statute of frauds but that a question of fact 

precluded summary judgment on Pillsbury’s unjust-enrichment claim. The 

court also found that questions of fact regarding Pillsbury’s interest in the 

53rd Way property precluded summary judgment on Butler’s declaratoryjudgment claim. The court later denied Pillsbury’s request for a jury trial on 

the remaining claim and counterclaims. 

¶6 At the conclusion of the ensuing bench trial, the court rejected

the unjust-enrichment claim, finding Pillsbury had no reasonable 

expectation she would be reimbursed for living expenses and that Butler 

also paid some expenses. The court found the parties intended to hold both

properties jointly, each owning a one-half interest. The court awarded each 

party 50% of the 53rd Way proceeds in escrow. The court also ordered that 

when the 27th Street home is sold, the first $501,530.72 of the proceeds will 

go to Butler to compensate for his contribution to the acquisition of the 

property, and any remaining proceeds will be divided equally between the 

parties. 

¶7 Additionally, the superior court denied Pillsbury’s motion for 

leave to amend the complaint to conform to evidence presented at trial to 

add a fraud claim and ordered each party to pay his or her own attorneys’ 

fees and costs. Pillsbury timely appealed, and Butler timely cross-appealed. 

DISCUSSION

I. The Superior Court Properly Granted Summary Judgment to 

Butler on Pillsbury’s Contract Claims.

¶8 Pillsbury alleged Butler breached oral agreements. On 

summary judgment, the parties hotly contested whether they had made 

such agreements and, if so, the terms of those agreements. The superior 

court held that the statute of frauds barred enforcement of each of the 

alleged contracts. We review the grant of summary judgment de novo, 

considering the facts and any inferences drawn from those facts in the light 

most favorable to the party opposing the motion. Tierra Ranchos Homeowners 

Ass’n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15 (App. 2007). Summary judgment 
PILLSBURY v. BUTLER

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is appropriate “if the facts produced in support of the claim or defense have 

so little probative value, given the quantum of evidence required, that 

reasonable people could not agree with the conclusion advanced by the 

proponent of the claim or defense.” Orme School v. Reeves, 166 Ariz. 301, 309 

(1990); Ariz. R. Civ. P. 56(a). 

¶9 The statute of frauds bars any action on an oral agreement 

that cannot be performed within one year. A.R.S. § 44-101(5). Pillsbury 

alleged Butler made an oral promise to pay her $2,000 per month through 

2039. Because that alleged promise could not be performed within one year, 

the court correctly granted summary judgment against Pillsbury on that 

claim. 

¶10 The statute of frauds also bars any action “on oral contracts 

for the conveyance of land.” Owens v. M.E. Schepp Ltd. P’ship, 218 Ariz. 222, 

225, ¶ 14 (2008); A.R.S. § 44-101(6). Pillsbury alleged Butler had orally 

agreed that the 53rd Way home would be hers and that after that home sold, 

she would own all of the 27th Street home in exchange for relinquishing her 

interest in the 53rd Way home. The deed for the 27th Street home 

contradicts Pillsbury’s assertion that she owned 100% of that property. 

Moreover, although Pillsbury claims the 53rd Way deed is consistent with 

the alleged oral agreement that she had a 50% interest in that home, the 

deed alone does not establish that Pillsbury was entitled to a 50% interest 

in 53rd Way and, thus, does not satisfy the statute of frauds. Although it 

was in writing, signed by both parties, and described the property, see 

A.R.S. § 44-101, tenants in common do not presumptively take an equal 

ownership interest. See Becchelli v. Becchelli, 109 Ariz. 229, 232 (1973), 

superseded by statute on other grounds, A.R.S. § 25-318, as recognized in Jordan 

v. Jordan, 132 Ariz. 38, 39 (1982); Register v. Coleman, 130 Ariz. 9, 12 (1981)

(holding joint tenancy deed failed to contain alleged additional terms and 

conditions of an oral agreement and therefore did not satisfy statute of 

frauds).

¶11 Pillsbury also argues questions of fact remained regarding 

her part-performance defense to the statute of frauds. The partperformance defense applies, however, only if the parties’ acts are 

“inconsistent with all other explanations.” See Owens, 218 Ariz. at 227, ¶ 18

(“If the alleged acts do not conclusively establish that a contract exists, 

reliance upon them would circumvent the evidentiary function of the 

statute [of frauds].”); see also William Henry Brophy Coll. v. Tovar, 127 Ariz. 

191, 194 (App. 1980) (“[T]he part performance alleged must be 

unequivocally referable solely to the oral contract.”). Deciding whether 

conduct is “sufficient to constitute part performance is a question of law.” 
PILLSBURY v. BUTLER

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Roe v. Austin, 246 Ariz. 21, 25, ¶ 9 (App. 2018) (citing William Henry Brophy 

Coll., 127 Ariz. at 194). 

¶12 According to Pillsbury, the parties partly performed the oral 

agreements when (1) she paid and Butler accepted $65,000 towards the 

purchase of the 53rd Way property; (2) she entered into a 20-year solar 

panel lease in her own name; (3) she paid the party’s living expenses 

through July 2019 even though she had far less financial means than Butler; 

and (4) Butler not only told her, but also told others that the 27th Street 

property was Pillsbury’s and that he had made arrangements so she could 

afford to keep it. However, these actions and statements also would be 

consistent with an agreement that Pillsbury owned an interest 

proportionate to her $65,000 contribution or that she would take the 

properties upon Butler’s death, which is also consistent with the tenants in 

common and the beneficiary deeds.

¶13 Pillsbury contends that her part performance can be viewed 

as consistent with the oral agreement she alleged and not, as the court 

found, consistent with two people cohabitating in a romantic relationship. 

But the relevant inquiry is whether the acts can only be explained by the 

existence of the oral agreements Pillsbury claims, i.e., 50% ownership of 

53rd Way property, 100% ownership of 27th Street property, and payments

of $2,000 per month until 2039 if the parties split up. See Roe, 246 Ariz. at 25, 

¶ 11; Owens, 218 Ariz. at 226–27, ¶¶ 16, 18. Whether one explanation is more 

persuasive is irrelevant. Roe, 246 Ariz. at 25–26, ¶¶ 11–12; Owens, 218 Ariz. 

at 228, ¶ 23. Pillsbury did not show that the parties’ actions are consistent 

only with the alleged oral agreements. Therefore, we affirm summary 

judgment in Butler’s favor on the contract claims. 

II. The Parties Shared Equal Ownership of Both Properties and Butler 

Is Entitled to Reimbursement of the 27th Street Purchase Money.

¶14 The superior court held a bench trial on Pillsbury’s claim for 

unjust enrichment, and on Butler’s counterclaims for declaratory judgment 

and partition. Pillsbury does not appeal the judgment against her on her 

claim for unjust enrichment. Although she argued that the superior court 

erred by failing to have a jury decide factual issues raised by Butler’s 

counterclaims, at oral argument, both parties agreed we need not decide 

that issue.

¶15 Because this case was tried to the bench, we review the trial 

court’s findings for clear error and will affirm if the court’s decision is 

supported by any substantial evidence. Castro v. Ballasteros-Suarez, 222 Ariz. 
PILLSBURY v. BUTLER

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48, 51–52, ¶ 11 (App. 2009). This court “defer[s] to the trial court with 

respect to any factual findings explicitly or implicitly made, affirming them 

so long as they are not clearly erroneous, even if substantial conflicting 

evidence exists.” John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 

Ariz. 532, 537, ¶ 10 (App. 2004). We will affirm the trial court’s judgment if 

it is correct for any reason. S&S Paving and Constr., Inc. v. Berkley Reg’l Ins. 

Co., 239 Ariz. 512, 514, ¶ 7 (App. 2016). 

¶16 In ruling on Butler’s declaratory judgment and partition 

claims, the court determined that the parties shared equal ownership of 

both properties and that they both intended to use the proceeds from the 

sale of the 53rd Way home to repay Butler for purchasing the 27th Street 

property. To that end, the court ordered the proceeds from the sale of the 

53rd Way home ($501,530.72) held in escrow until the 27th Street home is 

sold. Upon sale, the escrowed amount would be divided equally between 

the parties and the first $501,530.72 of the sale proceeds from the 27th Street 

house would go to Butler to reimburse him for having paid for that home.

Any remainder of the proceeds would be divided equally between the 

parties.

¶17 Pillsbury does not dispute the court’s finding that she and 

Butler share equal ownership of the two homes. She made that concession 

in the findings of fact she submitted to the superior court after trial, in 

which she stated that the parties shared equal interests in the properties. 

Instead, Pillsbury objects to the order requiring that Butler be reimbursed 

$501,530.72 toward the amount that he paid to purchase the 27th Street 

home. For his part, Butler does not object to the reimbursement provision

but argues the court’s 50-50 division of interests in the two properties was 

not supported by the evidence. He contends that the parties’ respective 

shares instead should be determined by their proportionate financial 

contribution to the properties. See Becchelli, 109 Ariz. at 232. 

¶18 The court’s reimbursement ruling is supported by substantial 

evidence. Indeed, Pillsbury’s reply brief concedes that the evidence before 

the court could support “the existence of an agreement between the parties 

to pay Butler back for the purchase of the second house from the sale 

proceeds of the first house.” Pillsbury argues that such an agreement could 

not survive the statute of frauds, but she provides no legal authority for the 

proposition that an agreement to reimburse another for money paid to 

purchase real property is within the statute of frauds. See A.R.S. § 44-101.

¶19 Nor did the superior court err by deciding that the parties 

shared equal ownership interests in the two properties. See McCready v. 
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McCready, 168 Ariz. 1, 3 (App. 1991) (“The fundamental objective in a 

partition action is to divide the property so as to be fair and equitable and 

confer no unfair advantage on any of the cotenants.”) (citations omitted).

¶20 Butler argues the court erred by failing to adopt his argument 

that the parties’ interests in the two properties should be divided in 

proportion to their respective financial contributions to the properties. He 

cites Becchelli for the “general rule” that, when one pays for property that is 

taken in the name of another, there is a presumption that the property was 

taken in trust for the benefit of the one who financed the purchase. 109 Ariz. 

at 232. Assuming for purposes of argument that rule might apply here, the 

result would merely be a presumption that may be overcome by contrary 

evidence. See Restatement (Third) of Trusts § 9(1)(a) & cmts. a, d; see also 76 

Am. Jur. 2d Trusts § 149 (2021) (“A purchase-money resulting trust does not 

arise, however, if the person who paid the purchase price manifests an 

intention that no resulting trust arise.”).

¶21 The evidence before the superior court on this issue certainly 

was contradictory. The record showed the parties had modified the deeds 

reflecting their respective ownership interests several times before they 

settled on tenants in common. Further, Butler signed beneficiary deeds

granting his interest in the homes to Pillsbury upon his death and had 

allowed Pillsbury to name her adult son as the beneficiary of her interest in 

the properties upon her death. Finally, Butler conceded in a deposition that 

he and Pillsbury might own equal shares in the properties, and at trial, he 

was unable to articulate what percentage of ownership interests he 

understood he and Pillsbury shared.

¶22 The superior court issued its ruling after thoroughly 

reviewing the parties’ evidence and hearing two days of testimony. The 

court found the parties were equal co-owners of both the 53rd Way and the 

27th Street properties. It is undisputed Butler paid the entire purchase price 

for the 27th Street property. The court found, and Pillsbury conceded, that 

the parties intended that Butler would receive the proceeds of the 53rd Way 

home to offset what he paid for the 27th Street home. Consistent with that 

finding, the court correctly allocated to Butler the first $501,530.72 from the 

sale of the 27th Street property and found that, as equal co-owners of that

home, the parties were to equally split any remaining sale proceeds. 

¶23 While the issues at trial were hotly contested, the court’s

rulings are supported by substantial evidence including the deeds and the 

parties’ respective testimony. Although Butler argues that the court 

adopted a position for which neither party advocated, we cannot conclude 
PILLSBURY v. BUTLER

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that the court erred when it chose not to fully accept either party’s view of 

the facts. 

III. The Superior Court Properly Denied the Motion to Amend.

¶24 Immediately after trial, Pillsbury asked to amend the 

complaint to add a fraud claim based on the evidence at trial. See Ariz. R. 

Civ. P. 15(b)(2). She argued that Butler testified at trial that he never 

intended to go through with his promise to revise his estate plan to provide 

Pillsbury $2,000 per month, thus establishing his intent for purposes of 

fraud. The superior court denied leave to amend, finding the issue was not 

tried by implied consent and, alternatively, that the evidence did not 

support a fraud claim. We affirm the denial of leave to amend absent an 

abuse of discretion. MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996). 

¶25 Contrary to Pillsbury’s argument, Butler did not expressly 

consent to try a fraud claim. Nor can Butler’s consent be implied by his 

testimony because the evidence Pillsbury cites was also relevant to the 

unjust-enrichment claim. “[P]ermitting evidence relevant to an existing 

issue to be admitted without objection does not constitute ‘implied consent’ 

to trial of an issue which has not been raised.” Magma Copper Co. v. Indus.

Comm’n of Ariz., 139 Ariz. 38, 47 (1983); see also Bujanda v. Montgomery Ward

& Co., Inc., 125 Ariz. 314, 316 (App. 1980) (consent cannot be implied “by 

admission without objection of evidence relevant to an issue within the 

pleadings”). We affirm the denial of the motion to amend the complaint. 

IV. Attorneys’ Fees and Costs.

¶26 Both parties requested attorneys’ fees and costs prior to 

trial—Butler under A.R.S. §§ 12-341 and -341.01; Pillsbury without citing a 

relevant statute. The superior court denied them without comment. Butler 

argues on cross appeal that the court erred by failing to state its reasons for 

denying fees and that awarding him costs was mandatory. 

¶27 “In any contested action arising out of a contract, express or

implied, the court may award the successful party reasonable attorney fees.” 

A.R.S. § 12-341.01(A) (emphasis added). “The decision as to who is the 

successful party for purposes of awarding attorneys’ fees is within the sole 

discretion of the trial court, and will not be disturbed on appeal if any 

reasonable basis exists for it.” Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 

178 Ariz. 425, 430 (App. 1994). Additionally, “we will affirm the trial court’s 

decision if it is correct for any reason.” Rancho Pescado, Inc. v. Nw. Mut. Life 

Ins. Co., 140 Ariz. 174, 178 (App. 1984). “The successful party to a civil action 
PILLSBURY v. BUTLER

Decision of the Court

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shall recover from his adversary all costs expended or incurred therein 

unless otherwise provided by law.” A.R.S. § 12-341 (emphasis added).

¶28 As indicated above, the award of attorneys’ fees under A.R.S. 

§ 12-341.01(A) is discretionary. Although the superior court offered no 

explanation for its denial of fees, the record clearly indicates that the 

contested issues were resolved both for and against each party with neither 

clearly prevailing. We therefore affirm the court’s denial of attorneys’ fees.

¶29 Butler also contends that Pillsbury rejected a written 

settlement offer that was better than the award she received at trial, making 

him the prevailing party as a matter of law. A.R.S. § 12-341.01(A). However, 

Butler conceded there is no confirmation in the record of his settlement 

offers to Pillsbury. Additionally, he filed no offer of judgment. See Ariz. R. 

Civ. P. 68. Absent any record of the rejected settlement offers, we cannot 

say that Butler was the prevailing party as a matter of law or that the court 

erred by denying him costs. 

¶30 Because neither party has clearly prevailed on appeal, we 

deny both parties appellate fees and costs.

CONCLUSION

¶31 For the foregoing reasons, we affirm.