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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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




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                       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.


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                       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


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                     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




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