FRANK D. KRESOCK, JR.; RICHARD W. HUNDLEY and law firm of BERENS, KOZUB, KLOBERDANZ & BLONSTEIN, P.L.C., Petitioners,
THE HONORABLE MICHAEL GORDON, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, ROSEMARY DePAOLI; GREGORY MEELL; ABRAM, MEELL & CANDIOTO, P.A., an Arizona professional corporation, Real Parties in Interest
Petition for Special Action from the Superior Court in
Maricopa County. CV2013-055126. The Honorable Michael D.
Gordon, Judge. The Honorable John R. Hannah Jr., Judge.
Petitioner: Richard W. Hundley, Berens, Kozub, Kloberdanz
& Blonstein, PLC, Phoenix.
Real Parties in Interest: Daniel R. Malinski, Burch &
Cracchiolo, P.A., Phoenix.
Samuel A. Thumma delivered the Opinion of the Court, in which
Presiding Judge Kent E. Cattani and Judge Diane M. Johnsen
A. Thumma, Judge:
Accepting jurisdiction in this special action, this court
grants relief because attorneys' fees imposed as
sanctions pursuant to Arizona Revised Statutes (A.R.S.)
section 12-349 (2016) and Ariz. R. Civ. P. 11 are not "
damages awarded" for purposes of calculating a
supersedeas bond pursuant to A.R.S. § 12-2108(A) and
Ariz. R. Civ. App. P. 7(a)(4)(A).
AND PROCEDURAL HISTORY
The superior court dismissed on motion Petitioner Frank D.
Kresock Jr.'s civil claims against the Real Parties in
Interest Rosemary DePaoli, Gregory J. and Jane Doe Meell, and
Abram, Meell & Candioto, P.A. As sanctions pursuant to
A.R.S. § 12-349 and Ariz. R. Civ. P. 11, the judgment
awarded attorneys' fees to the Real Parties and against
Kresock, his attorney Petitioner Richard W. Hundley and
Hundley's law firm Petitioner Berens, Kozub, Kloberdanz
and Blonstein, P.L.C. Petitioners' appeal from that
judgment is pending before this court.
Petitioners unsuccessfully asked the superior court to stay
enforcement of the judgment, claiming no supersedeas bond was
required because the judgment awarded no damages. The same
day the superior court denied that requested stay,
Petitioners sought a similar stay from this court in the
appeal. This court denied that motion without prejudice to
Petitioners filing a special action. This is that special
Given the nature of a supersedeas bond, and the unique
procedural background of this case, exercising special action
jurisdiction is appropriate. See Ariz. R.P. Spec.
Act. 1(a); see also City Ctr. Exec. Plaza, LLC,
v. Jantzen, 237 Ariz. 37, 39 ¶ 2, 344 P.3d 339
(App. 2015) (citing cases). Accordingly, this court accepts
special action jurisdiction.
The relevant portion of the supersedeas bond statute
If a plaintiff in any civil action obtains a judgment under
any legal theory, the amount of the bond that is necessary to
stay execution during the course of all appeals or
discretionary reviews of that judgment by any ...