IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

FRANK D. KRESOCK, JR.; RICHARD W. HUNDLEY and law firm of 

BERENS, KOZUB, KLOBERDANZ & BLONSTEIN, P.L.C., 

Petitioners, 

v.

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.

No. 1 CA-SA 16-0026 

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 

JURISDICTION ACCEPTED; RELIEF GRANTED 

COUNSEL 

Berens, Kozub, Kloberdanz & Blonstein, PLC, Phoenix 

By Richard W. Hundley 

Counsel for Petitioner 
2

Burch & Cracchiolo, P.A., Phoenix 

By Daniel R. Malinski 

Counsel for Real Parties in Interest

OPINION 

Judge Samuel A. Thumma delivered the Opinion of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Diane M. Johnsen joined. 

T H U M M A, Judge: 

¶1 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)1 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). 

FACTS AND PROCEDURAL HISTORY 

¶2 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. 

¶3 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 action. 

 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
KRESOCK v. HON GORDON/DEPAOLI

Opinion of the Court 

3

DISCUSSION 

¶4 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 (App. 2015) (citing cases). Accordingly, this 

court accepts special action jurisdiction. 

¶5 The relevant portion of the supersedeas bond statute 

provides: 

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 appellate court 

shall be set as the lesser of the following: 

1. The total amount of damages awarded 

excluding punitive damages.

2. Fifty per cent of the appellant’s net 

worth. 

3. Twenty-five million dollars. 

A.R.S. § 12-2108(A) (emphasis added); accord Ariz. R. Civ. App. P. 7(a)(4)(A) 

(similar). Jantzen held that attorneys’ fees awarded pursuant to A.R.S. § 12-

341.01 are not “damages” for purposes of setting a supersedeas bond under

A.R.S. § 12-2108(A)(1) (enacted in 2011) and Ariz. R. Civ. App. P. 7(a)(4)(A) 

(promulgated in 2012). 237 Ariz. at 42 ¶ 13. Jantzen has been applied or 

construed in other contexts. See Bobrow v. Superior Court, ___ Ariz. ___, ___ 

¶¶ 2, 10, 12, 2016 WL 425193 at *1-*3 (App. Feb. 4, 2016) (applying Jantzen

in denying, on special action review, relief from order requiring 

supersedeas bond in full amount of family court decree awarding one 

spouse living expenses and value of a house); Wells Fargo Bank N.A. v. 

Superior Court, ___ Ariz. ___, ___ ¶¶ 11-18, 2016 WL 337457 at *3-*5 (App. 

Jan. 28, 2016) (discussing Jantzen in construing Ariz. R. Civ. App. P. 7(a)(2), 

which authorizes superior court to “enter any further order, in lieu of or in 

addition to the [supersedeas] bond, which may be appropriate to preserve 

the status quo or the effectiveness of the judgment”).2 No decision has 

applied Jantzen in considering whether attorneys’ fees imposed as sanctions 

 

2 No such “further order in lieu of” a supersedeas bond is at issue here. 
KRESOCK v. HON GORDON/DEPAOLI

Opinion of the Court 

4

are “damages” for purposes of setting a supersedeas bond under A.R.S. § 

12-2108(A)(1). 

¶6 Although both parties agree the supersedeas bond statute 

applies, they argue it directs diametrically different results. Petitioners 

argue attorneys’ fees imposed as sanctions are not “damages” under the 

supersedeas bond statute “according to [the] ‘peculiar and appropriate 

meaning’” the term “damages” has “in the law.” Jantzen, 237 Ariz. at 41 ¶ 

13 (citing authority). Accordingly, Petitioners argue, because “[n]o 

damages were awarded” to the Real Parties, “no actual supersedeas bond 

is required” to stay enforcement of the judgment. The Real Parties counter 

that attorneys’ fees imposed as sanctions are “damages,” relying on cases 

cited in Jantzen, a law review article, cases construing Fed. R. Civ. P. 11 and 

Ariz. R. Civ. P. 11, and A.R.S. § 12-349. The authorities the Real Parties cite, 

however, either do not support their argument, or support Petitioners’ 

argument. 

¶7 Jantzen stated: 

 In Arizona, courts generally do not 

construe “damages” to include attorneys’ fees. 

We see no reason to diverge from the general 

rule here. This is not a case where attorneys’ fees 

are a legal consequence of an original wrongful 

act or any of the other situations where 

attorneys’ fees can be considered damages. See 

Desert Mountain Prop. Ltd. P’ship v. Liberty Mut. 

Fire Ins. Co., 225 Ariz. 194, 209 ¶ 61 . . . (App. 

2010) (“[W]hen one party’s breach of contract 

places the other in a situation that makes it 

necessary to incur expenses to protect his 

interest, such costs and expenses, including 

attorneys’ fees, should be treated as the legal 

consequences of the original wrongful act and 

may be recovered as damages.”). 

237 Ariz. at 41-42 ¶ 13 (citations omitted). The Real Parties argue that 

attorneys’ fees imposed as sanctions are akin to the fees sought in Desert 

Mountain, meaning they are damages for purposes of the supersedeas bond 

statute. 
KRESOCK v. HON GORDON/DEPAOLI

Opinion of the Court 

5

¶8 For certain types of substantive claims, attorneys’ fees may be 

recovered as a component of damages. See Jantzen, 237 Ariz. at 42 ¶ 13 

(citing and distinguishing authority); Desert Mountain, 225 Ariz. at 209 ¶ 61 

(citing cases); see also State Bar of Arizona, Arizona Attorneys’ Fees Manual 

§§ 7.1-7.5 (5th ed. Supp. 2014) (listing examples of claims where attorneys’ 

fees are damages, including “tort of another;” wrongful repudiation of 

insurance coverage; and fees caused by wrongful injunction, attachment, 

garnishment or execution). No such claim is present here. The attorneys’ 

fees awarded were not incurred as a result of “one party’s breach of 

contract,” in a damages award made by a finder of fact or in a damages 

award in an order resolving a dispositive motion. As in Jantzen, the 

attorneys’ fees imposed here were not “a legal consequence of an original 

wrongful act or any of the other situations where attorneys’ fees can be 

considered damages.” 237 Ariz. at 42 ¶ 13 (citing Desert Mountain). 

Accordingly, the cases relied upon by the Real Parties that Jantzen 

distinguished are just as distinguishable here. 

¶9 The Real Parties argue that Ariz. R. Civ. P. 11 sanctions are 

meant to be remedial, citing a 1986 law review article discussing competing 

rationales for sanctions available under then-recent changes to Fed. R. Civ. 

P. 11:

 Rule 11 sanctions can be imposed on the 

lawyer, the client, or both. The sanctions are 

viewed by some as primarily compensatory and 

by others as primarily punitive; the tension 

between these two views cannot be completely 

reconciled. On the one hand, sanctions are a 

form of cost-shifting, compensating a party for 

expenses incurred because of an opponent’s 

unnecessary, wasteful, or abusive conduct. On 

the other hand, they are a form of punishment, 

imposed only on those who violate the rule. 

Whatever the rationale for imposing sanctions, 

their frequent use is likely to be a significant 

deterrent. 

Melissa L. Nelken, Sanctions Under Amended Federal Rule 11 - Some “Chilling” 

Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 

1313, 1314 (1986). Although the Real Parties rely on the portion of the quote 

indicating sanctions are a form of cost shifting, the same can be said for fee 

shifting under A.R.S. § 12-341.01. Jantzen, however, held that fees awarded 

under A.R.S. § 12-341.01 were not “damages” under the supersedeas bond 
KRESOCK v. HON GORDON/DEPAOLI

Opinion of the Court 

6

statute. And the alternative basis for awarding sanctions listed in the quote 

-- that they are a form of punishment -- clearly takes such awards outside 

of the supersedeas bond statute, which expressly excludes “punitive 

damages” when calculating the amount of a bond. A.R.S. § 12-2108(A)(1). 

More broadly, this law review article does not address whether fees 

imposed as Fed. R. Civ. P. 11 sanctions are damages for purposes of a 

supersedeas bond statute. Nor have the Real Parties cited any case 

construing Fed. R. Civ. P. 11 or Ariz. R. Civ. P. 11 that supports such a 

proposition. 

¶10 Finally, the primary basis for the sanctions imposed here was 

A.R.S. § 12-349.3 When applicable, that statute provides that a court “shall 

assess” as sanctions “reasonable attorney[s’] fees, expenses and, at the 

court’s discretion, double damages of not to exceed five thousand dollars 

against an attorney or party.” A.R.S. § 12-349(A). Thus, this statute 

differentiates between “attorney[s’] fees” (which were imposed as 

sanctions here) and “damages” (which were not). Given this dichotomy, it 

is impossible to read the term “damages awarded” in A.R.S. § 12-2108(A) 

to conclude a supersedeas bond must include both “attorney[s’] fees . . . and 

. . . damages” in A.R.S. § 12-349(A). See, e.g., State ex rel. Montgomery v. 

Harris, 234 Ariz. 343, 344 ¶ 8 (2014) (“’[T]he best and most reliable index of 

a statute’s meaning is its language and, when the language is clear and 

unequivocal, it is determinative of the statute’s construction.’”) (quoting 

State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007)); Bilke v. State, 206 Ariz. 462, 464 

¶ 11 (2003) (“The court must give effect to each word of the statute.”); P.F. 

West, Inc. v. Superior Court, 139 Ariz. 31, 34 (App. 1984) (stating different 

statutory terms or phrases are not treated as synonymous unless context 

permits no other meaning). 

 

3 It is at least arguable that A.R.S. § 12-349 is the sole basis for the sanctions, 

given the superior court’s observation that the statutory sanction “is a 

reasonable sanction for the Rule 11 violation.” In any event, there is no 

showing that Ariz. R. Civ. P. 11 provides an adequate, independent basis 

for the sanctions imposed, let alone that the outcome in determining 

damages under the supersedeas bond statute would differ if such a 

showing had been made. 
KRESOCK v. HON GORDON/DEPAOLI

Opinion of the Court 

7

CONCLUSION

¶11 This court accepts special action jurisdiction and grants relief 

by ordering that the award of attorneys’ fees as sanctions pursuant to A.R.S. 

§ 12-349 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). Given this conclusion, the Real Parties’ request 

for costs and attorneys’ fees incurred in this special action is denied.