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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SCOTT A. PERKINS, M.D.; MARK ROSENBERG, Petitioners,
v.
THE HONORABLE MARK BRAIN, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
RONALD W. BARNET, individually and on behalf of PHOENIX
HEALTHCARE GROUP, L.L.C., Real Party in Interest.
No. 1 CA-SA 15-0077
FILED 4-23-2015
Petition for Special Action from the Superior Court in Maricopa County
No. CV2011-020543
The Honorable Mark H. Brain, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
The Frutkin Law Firm, PLC, Scottsdale
By Robert N. Mann, Ben J. Himmelstein
Counsel for Petitioner
Aiken Schenk Hawkins & Ricciardi, PC, Phoenix
By Joseph A. Schenk, William H. Knight
Counsel for Real Party in Interest
PERKINS v. HON. BRAIN/BARNET
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.
C A T T A N I, Judge:
¶1 Petitioners Scott Perkins and Mark Rosenberg seek special
action review of the superior court’s decision determining that no bond was
required to stay execution of a judgment pending appeal. Special action
jurisdiction is appropriate because there is no adequate remedy by appeal
for a challenge to the amount of a supersedeas bond. See City Ctr. Exec.
Plaza, LLC v. Jantzen, 237 Ariz. 37, 39, ¶ 2, 344 P.3d 339, 341 (App. 2015);
Bruce Church, Inc. v. Superior Court, 160 Ariz. 514, 515, 774 P.2d 818, 819
(App. 1989); see also Ariz. R.P. Spec. Act. 1(a). We therefore accept special
action jurisdiction; for reasons that follow, however, we deny relief.
¶2 In the underlying lawsuit, real party in interest Ronald Barnet
filed civil claims against Perkins and Rosenberg stemming from the
breakdown of their business relationship. After three years of litigation, the
superior court granted summary judgment for Perkins and Rosenberg and
entered judgment in their favor. The final judgment dismissed the
complaint against Perkins and Rosenberg with prejudice and awarded
them over $250,000 in attorney’s fees.
¶3 Barnet appealed and moved to stay enforcement of the
judgment pending appeal, arguing that no supersedeas bond was required
because the judgment did not award damages or, alternatively, that the
bond should be reduced to zero under A.R.S. § 12-2108(A)(2) or (C). Perkins
and Rosenberg opposed and sought a bond in the full amount of the
judgment, arguing that the attorney’s fee award constituted damages and
that the bond-reduction provisions of § 12-2108 did not apply to a plaintiff’s
appeal from a defense judgment. The superior court granted the stay and
set no bond. This petition followed.
¶4 Perkins and Rosenberg contend that the superior court erred
by failing to set the supersedeas bond in the full amount of the attorney’s
fee award (the only monetary portion of the judgment). But, absent
circumstances not alleged here, the bond is limited to the total amount of
damages awarded, not the total amount of the judgment. See ARCAP
2
PERKINS v. HON. BRAIN/BARNET
Decision of the Court
7(a)(4)(A), (5)(A); A.R.S. § 12-2108(A)(1), (B); Jantzen, 237 Ariz. at 41, ¶ 12,
344 P.3d at 343. And attorney’s fees are not damages. See, e.g., Jantzen, 237
Ariz. at 41–42, ¶ 13, 344 P.3d at 343–44.
¶5 Perkins and Rosenberg argue that the fees in this case were
awarded under a contractual fee-shifting provision (rather than under
A.R.S. § 12-341.01) and that the fees therefore fall into an exception to the
general rule that attorney’s fees are not damages. This narrow exception
applies to certain fees expended in litigation against third parties, and thus
does not apply to the litigation costs incurred in the instant case. See Fairway
Builders, Inc. v. Malouf Towers Rental Co., 124 Ariz. 242, 258, 603 P.2d 513, 529
(App. 1979) (“[T]he victim of a breach of contract may recover damages
from the breaching party to compensate for attorneys’ fees and costs
expended by the victim to defend a separate suit brought against it as a
foreseeable result of the breach.”); Arizona Attorneys’ Fees Manual § 7.2
(Bruce E. Meyerson & Patricia K. Norris eds., 5th ed. 2010 & Supp. 2014)
(“Attorneys’ Fees as Damages: Fees Incurred Against Third Persons as a
Result of Defendant’s Wrongful Conduct”); 22 Am. Jur. 2d Damages § 450
(“[L]itigation costs incurred by a party in separate litigation may sometimes
be an appropriate measure of compensatory damages against another
party. Such recovery is ordinarily allowed as an item of damage flowing
from the present defendant’s wrongful act and not specifically as attorney’s
fees.”).
¶6 Here, the judgment for Perkins and Rosenberg did not award
damages, only attorney’s fees. Because the amount of a supersedeas bond
is limited to the amount of damages and because attorney’s fees are not
damages, the superior court did not err by concluding that no bond was
required to stay enforcement of the judgment pending appeal.1 We
therefore deny relief.
:ama
1 In light of this conclusion, we need not address Perkins and
Rosenberg’s argument that the bond-reduction provisions of § 12-2108
apply only to an appeal from a judgment in favor of a plaintiff.
3