Sutto, Jr. v. Bonham ( 2019 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    JOHN S. SUTTO, JR., et al., Plaintiffs/Appellees,
    v.
    JAMES W. BONHAM, Defendant/Appellant.
    No. 1 CA-CV 19-0278
    FILED 12-17-2019
    Appeal from the Superior Court in Maricopa County
    No. CV2019-004326
    The Honorable David W. Garbarino, Judge Pro Tempore
    AFFIRMED
    APPEARANCES
    James W. Bonham, Glendale
    Defendant/Appellant
    Williams Zinman & Parham PC, Scottsdale
    By Scott E. Williams, Mark B. Zinman
    Counsel for Plaintiffs/Appellees
    SUTTO, JR., et al. v. BONHAM
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
    in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.
    C A M P B E L L, Judge:
    ¶1            James Bonham appeals from the superior court’s judgment in
    favor of John Sutto, Jr., et al., in this forcible detainer action. “On the trial of
    an action of forcible entry or forcible detainer, the only issue shall be the
    actual possession and the merits of title shall not be inquired into.” A.R.S.
    § 12-1177(A); Curtis v. Morris, 
    186 Ariz. 534
    , 535 (1996). Because Bonham in
    this appeal only raises challenges to the merits of title, we affirm the
    superior court’s judgment.
    BACKGROUND
    ¶2           In March 2005, Bonham executed a promissory note secured
    by a deed of trust on real property located in Glendale, Arizona (“the
    property”). On February 27, 2019, John and Holly Sutto purchased the
    property at a trustee’s sale and the duly appointed trustee conveyed the
    property to them through a trustee’s deed. On the same date, the Suttos
    served Bonham with a “Written Demand of Surrender and Possession,”
    notifying him that they had purchased the property through a trustee’s sale
    and demanding that he vacate the premises immediately.
    ¶3            Bonham did not vacate the premises, and nine days later, the
    Suttos sued Bonham for forcible detainer. Moving to dismiss that
    complaint, Bonham asserted the superior court lacked jurisdiction over the
    forcible detainer action because he had a pending bankruptcy case in the
    federal court. In a separate answer, Bonham reasserted his claim that the
    superior court lacked jurisdiction and cited A.R.S. § 39-161 as an affirmative
    defense, without providing any explanation. See A.R.S. § 39-161
    (criminalizing certain transactions involving false or forged instruments).
    ¶4             After a bench trial, the superior court denied the motion to
    dismiss and entered judgment in favor of the Suttos, finding Bonham guilty
    of forcible detainer. Bonham timely appealed.
    2
    SUTTO, JR., et al. v. BONHAM
    Decision of the Court
    DISCUSSION
    I.     Validity of Underlying Trustee’s Sale
    ¶5            Arguing the superior court improperly found him guilty of
    forcible detainer, Bonham contends that the underlying trustee’s sale
    violated A.R.S. § 39-161. According to Bonham, this purported statutory
    violation voids the trustee’s sale and the Suttos therefore have no lawful
    claim against him.1
    ¶6             A forcible detainer action is a statutory proceeding, “the
    object of which is to provide a summary, speedy and adequate means for
    obtaining possession of premises by one entitled to actual possession.”
    Heywood v. Ziol, 
    91 Ariz. 309
    , 311 (1962). We review the superior court’s
    application of the relevant statutes de novo. See City of Tucson v. Pima
    County, 
    190 Ariz. 385
    , 386 (App. 1997). Under A.R.S. § 12-1173.01(A)(2), “a
    person . . . who retains possession of . . . real property after he receives
    written demand of possession may be removed through an action for
    forcible detainer . . . [i]f the property has been sold through a trustee’s sale
    under a deed of trust . . . .”
    ¶7            Contrary to Bonham’s contention, A.R.S. § 39-161 provides no
    defense to a forcible detainer action because the only issue in a forcible
    detainer action is actual possession, not the merits of title. A.R.S.
    § 12-1177(A); Curtis, 
    186 Ariz. 534
    , 535 (1996). To find otherwise “would
    convert a forcible detainer action into a quiet title action and defeat its
    purpose as a summary remedy.” Curtis, 
    186 Ariz. at 535
    . Because Bonham
    challenges only the validity of the underlying trustee’s sale and does not
    otherwise dispute the superior court’s finding that he is guilty of forcible
    detainer, we cannot say the court erred by entering judgment in favor of the
    Suttos.
    1      Bonham also asserts the superior court improperly denied his
    motion to dismiss. Although we may review the denial of a motion to
    dismiss as part of an appeal from a final judgment, see Sanchez v. Coxon, 
    175 Ariz. 93
    , 94 (1993), Bonham challenged only the superior court’s jurisdiction
    in his motion to dismiss, not the validity of the trustee’s sale. Because
    Bonham does not reassert his jurisdiction claim on appeal, we do not
    consider the court’s denial of the motion to dismiss.
    3
    SUTTO, JR., et al. v. BONHAM
    Decision of the Court
    II.    Attorney Fees Incurred on Appeal
    ¶8             Citing A.R.S. §§ 12-341.01, 12-349, 12-1178, 33-1315, and
    Arizona Rule of Civil Procedure (“Rule”) 11, the Suttos request an award of
    their attorney fees incurred on appeal. Under A.R.S. § 12–341.01(A), a court
    may award attorney fees to the prevailing party in a dispute that arises out
    of a contract. A forcible detainer action, however, does not arise out of
    contract. Bank of New York Mellon v. Dodev, 
    246 Ariz. 1
    , 11-12, ¶ 38 (App.
    2018); Carrington Mortg. Servs. v. Woods, 
    242 Ariz. 455
    , 457, ¶ 14 (App. 2017).
    While a “party who had a lawful possessory interest in property and who
    continues in possession of the property after [that] interest is terminated by
    a trustee’s sale becomes a tenant at sufferance[,] . . . [a] contract does not
    exist between a landlord and a tenant at sufferance.” Bank of New York
    Mellon, 246 Ariz. at 12, ¶ 38 (internal quotations omitted). For this reason,
    A.R.S. § 33-1315(A)(2), which permits an award of attorney fees for a
    forcible detainer action arising out of a rental agreement, likewise provides
    no basis for an attorney fees award in this case.
    ¶9             Under A.R.S. § 12-1178(A), the superior court may award
    attorney fees to a party who successfully prosecutes a forcible detainer
    action. But A.R.S. § 12-1182(B), which governs appeals from a forcible
    detainer judgment, only authorizes an award of costs, rent, and damages,
    not attorney fees. Bank of New York Mellon, 246 Ariz. at 12, ¶ 40. “As noted
    in our previous caselaw, costs and damages do not include attorney fees[,]”
    and A.R.S. § 12-1178 therefore provides no basis for an attorney fees award
    on appeal. Id.
    ¶10            Finally, Rule 11 and A.R.S. § 12-349 authorize a sanction-
    based award of attorney fees. Citing Villa De Jardines Ass’n v. Flagstar Bank,
    FSB, 
    227 Ariz. 91
    , 96, ¶ 13 (App. 2011), the Suttos contend sanctions are
    warranted because: “[(]1) there was no reasonable inquiry into the basis for
    [the appeal]; (2) there was no chance of success under existing precedent;
    and (3) there was no reasonable argument to extend, modify, or reverse the
    controlling law . . . .” The Suttos also assert that sanctions are appropriate
    under A.R.S. § 12-349(A) because Bonham appealed the judgment “without
    any justification” and for the sole “purpose of delaying” the Suttos from
    obtaining possession of the property. Although A.R.S. § 12-1173.01(A)(2)
    presupposes a valid trustee’s sale and transfer of deed of trust, Bonham did
    not argue that the question of title was so intertwined with the issue of
    possession that title had to be determined before possession could be
    adjudicated in the forcible detainer action. Nonetheless, we do not find
    Bonham’s challenge to the validity of the underlying trustee’s sale as a
    defense to the forcible detainer action manifestly unreasonable and thus we
    4
    SUTTO, JR., et al. v. BONHAM
    Decision of the Court
    decline to award attorney fees as a sanction. See Bank of New York Mellon,
    246 Ariz. at 12, ¶ 39 (noting this court imposes sanctions “only with great
    reservation”) (internal quotation omitted).
    CONCLUSION
    ¶11         For the foregoing reasons, we affirm. As the successful parties
    on appeal, we award the Suttos their costs, conditioned upon compliance
    with ARCAP 21.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CV 19-0278

Filed Date: 12/17/2019

Precedential Status: Non-Precedential

Modified Date: 12/17/2019