Security Sav. and Loan Ass'n v. Milton

• Decision Date: 17 September 1991
• Docket Number: CA-CV,No. 2,2
• Citation: 828 P.2d 1216,171 Ariz. 75
• Parties: SECURITY SAVINGS AND LOAN ASSOCIATION, an Arizona corporation, Plaintiff/Appellee, v. Corinne H. MILTON, Defendant/Appellant. 91-0026.
• Court: Arizona Court of Appeals

Page 1216

828 P.2d 1216

171 Ariz. 75

SECURITY SAVINGS AND LOAN ASSOCIATION, an Arizona corporation, Plaintiff/Appellee, v. Corinne H. MILTON, Defendant/Appellant.

No. 2 CA-CV 91-0026.

Court of Appeals of Arizona Division 2, Department A.

Sept. 17, 1991.

As Corrected Sept. 24, 1991.

Review Denied May 5, 1992. ^*

[171 Ariz. 76] O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Scott D. Gibson and Drue A. Morgan-Birch, Tucson, for plaintiff/appellee.

William L. Berlat, Ltd. by Malcolm K. Ryder, Tucson, for defendant/appellant.

OPINION

HOWARD, Judge.

This is an appeal from a jury verdict in an action to recover the balance after a sale of property under a trust deed pursuant to A.R.S. § 33-814. The jury awarded the beneficiary of the trust, Security Savings and Loan Association (Security) judgment against Lee Brownell Milton Family Trust, Corinne H. Milton and the Estate of Lee Brownell Milton, guarantors of the indebtedness owed to Security, in the sum of $42,069.73 plus interest, costs and attorney's fees in the sum of $14,958.50.

The trustee's sale which formed the basis for the deficiency judgment took place on September 28, 1989. Security, the only bidder at the sale, purchased the property and received a trustee's deed.

Security brought this action for the balance within the time prescribed by A.R.S. § 33-814. Prior to the trial, the defendants moved for summary judgment contending, among other things, that the trustee's sale was improperly continued. Specifically, they contended that they were misled as to the place where the sale was originally to take place and misled as to the date and location of the several continuances of the sale. This motion was denied by the judge to whom it was assigned, who is not the judge who presided at the trial. However, the subject of the improper notice came up again on the day of the trial and the trial judge ruled that there was no defect in the notice of sale. Defendants made an offer of proof which the trial court rejected.

Appellant Corinne Milton first contends that the trial court erred in finding the sale to have been properly noticed and continued. We conclude that this issue is irrelevant in view of A.R.S. § 33-811(A) which states:

... The trustee's deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing and posting of notice of sale and the conduct of the sale. Such deed shall constitute conclusive evidence of the meeting of such requirements in favor of purchasers or encumbrancers for value and without actual notice. Knowledge of the trustee shall not be imputed to the beneficiary. ¹

There being no evidence that Security had actual notice of any alleged defect in the notice of sale and its continuances, the above statute precludes an examination into the merits of the notice issue.

Appellant next argues that attorney's fees are not recoverable in an action brought under A.R.S. § 33-814 and, even if they are, the amount awarded by the trial court was unreasonable.

The guarantee of payment which appellant signed obligated her to pay Security's attorney's fees incurred in enforcing the guarantee. She also assumed and agreed to pay the promissory note secured by the deed of trust. Both the note and the deed of trust also gave Security the right to collect attorney's fees from appellant. Relying on the maxim "expressio unius est exclusio alterius," appellant argues that because A.R.S. § 33-814(A) states that a deficiency judgment "shall include" interest, cost and...