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

JEFFERY C. KOHNER, Plaintiff/Counter-Defendant/Appellant,

v.

MARK B. PYPER and LOREN M. PYPER, husband and wife,

Defendants/Appellees,

and

OWENS & PYPER, P.L.C., an Arizona professional limited liability 

company, Defendant/Counter-Claimant/Appellee.

No. 1 CA-CV 11-0471

Appeal from the Superior Court in Maricopa County

No. CV2009-006706

The Honorable J. Kenneth Mangum, Judge (Retired)

AFFIRMED

COUNSEL

Jeffery C. Kohner, Mesa

Plaintiff/Counter-Defendant/Appellant
2

Jennings, Haug & Cunningham, LLP, Phoenix

By John R. Cunningham

Co-Counsel for Defendants/Appellees

Owens & Pyper, P.L.C., Phoenix

By Bradley T. Owens

Co-Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia K. Norris and Judge Randall M. Howe joined.

D O W N I E, Judge:

¶1 Jeffery C. Kohner appeals a judgment confirming an 

arbitration award in favor of Mark B. Pyper, Loren M. Pyper, and Owens & 

Pyper, P.L.C. (collectively, “Pyper”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Kohner filed a complaint against Pyper, alleging claims for 

professional negligence and breach of fiduciary duty arising out of Pyper’s 

legal representation of Kohner in prior litigation. Pyper counterclaimed for 

breach of contract stemming from Kohner’s failure to pay legal fees. After 

the superior court set the case for trial, the parties agreed to a binding 

arbitration proceeding. The arbitrator issued a Final Arbitration Award on 

March 8, 2011, and Pyper sought to confirm the award pursuant to Arizona 

Revised Statutes (“A.R.S.”) section 12-3022. 

¶3 Kohner’s counsel moved to withdraw and asked the court to 

allow Kohner additional time to respond to the motion to confirm the 

arbitration award. The court granted the motion to withdraw and gave 

Kohner until May 20, 2011 to respond to Pyper’s motion. On May 20, 2011, 

Kohner requested a sixty-day extension of time to obtain an attorney and 

 

1 We deny Pyper’s request to dismiss the appeal based on Kohner’s 

failure to file a cost bond or an opening brief that complies with ARCAP

13(a). We rely on our independent review of the record in reciting the facts 

and procedural background. See Sholes v. Fernando, 228 Ariz. 455, 457 n.2, ¶ 

2, 268 P.3d 1112, 1114 n.2 (App. 2011). 
KOHNER v. PYPER

Decision of the Court

3

file an objection, but the court denied his request, entered an order 

confirming the arbitration award, and issued a judgment in favor of Pyper. 

Kohner timely appealed. We have jurisdiction pursuant to A.R.S. § 12-

2101(A)(1).

DISCUSSION

¶4 Judicial review of an arbitration award is limited by statute. 

Atreus Cmtys. Grp. of Ariz. v. Stardust Dev., Inc., 229 Ariz. 503, 506, ¶ 13, 277 

P.3d 208, 211 (App. 2012). Provided that an arbitrator acts within the 

bounds of his or her authority, we will affirm confirmation of the ensuing 

award unless the superior court abused its discretion. Id. If an arbitrator’s 

award is within the scope of the parties’ agreement, the decision is final as 

to both issues of fact and law, regardless of the correctness of the decision. 

Id.; see also Chang v. Siu, 234 Ariz. 442, 446, ¶ 14, 323 P.3d 725, 729 (App. 

2014). We thus do not consider Kohner’s contention that the arbitrator 

erroneously decided the underlying dispute. And Kohner does not argue

that the arbitrator exceeded the scope of his authority. 

¶5 We disagree with Kohner’s contention that the court erred by 

confirming the arbitration award prior to expiration of the 90-day period

within which a motion to vacate may be filed. Under the Arizona Revised 

Uniform Arbitration Act, A.R.S. §§ 12-3001 to -3029, (the “Act”), upon 

completion of an arbitration proceeding, a party may ask the superior court 

to confirm the arbitrator’s award. A.R.S. § 12-3022. Pursuant to A.R.S. § 12-

3023, a party aggrieved by the award may move to vacate it on certain 

limited grounds. The superior court “shall vacate” an award: if procured 

by fraud; on a showing of “[e]vident partiality,” corruption, or misconduct 

by the arbitrator; if the arbitrator exceeded his powers, conducted the 

arbitration without notice, or refused to postpone the hearing despite 

sufficient cause; or if “[t]here was no agreement to arbitrate.” A motion to 

vacate must be filed within 90 days of the movant’s receipt of notice of the 

arbitration award, or, if based on fraud, corruption or other undue means, 

within 90 days after the movant knew or with reasonable care should have 

known of the ground. A.R.S. § 12-3023(B).

¶6 The Act does not prohibit confirmation of an arbitration 

award prior to expiration of the 90-day deadline to move to vacate. Indeed, 

the comment to the relevant section of the Uniform Arbitration Act states

that a court need not wait the entire 90 days before ruling on a motion to 

confirm. Uniform Arbitration Act § 22, cmt. 1 (2000). Instead, once the 

prevailing party moves to confirm, the opposing party may either: (1) file a 

motion to vacate at that time or (2) file a motion to vacate within the 90-day 
KOHNER v. PYPER

Decision of the Court

4

statutory period. Id. The Arizona legislature did not modify the relevant 

provision or otherwise indicate that Arizona courts should follow a 

different procedure. Cf. In re Estate of Dobert, 192 Ariz. 248, 252, ¶ 17, 963 

P.2d 327, 331 (App. 1998) (If an Arizona statute is based on a uniform act, 

courts assume the legislature “intended to adopt the construction placed on 

the act by its drafters,” and commentary to the uniform act is “highly 

persuasive unless erroneous or contrary to settled policy in this state.”). 

¶7 The arbitrator entered the Final Arbitration Award on March 

8, 2011. Therefore, the deadline for moving to vacate the award was June 

6, 2011. Kohner did not oppose the motion to confirm and did not timely 

move to vacate the award. And neither in the superior court nor in this 

Court has Kohner asserted grounds on which he would be entitled to relief 

under A.R.S. § 12-3023(A). Accordingly, we find no abuse of discretion in 

the superior court’s decision to confirm the arbitration award. 

¶8 We also reject Kohner’s argument that the superior court 

should have granted him additional time to move to vacate the arbitration 

award or retain new counsel. Under Arizona law, a party appearing 

without a lawyer is entitled to no more consideration than a party 

represented by counsel and is held to the same standard as an attorney. In 

re Marriage of Williams, 219 Ariz. 546, 549, ¶ 13, 200 P.3d 1043, 1046 (App. 

2008). Moreover, Kohner has demonstrated no prejudice arising from the 

ruling. He has, for example, identified no colorable claim or defense he 

might have advanced had he been given additional time or had the 

assistance of counsel. 

CONCLUSION

¶9 We affirm the judgment of the superior court. We deny 

Pyper’s request for an award of attorneys’ fees pursuant to A.R.S. § 12-

341.01(A), which permits a discretionary award to the successful party in 

an action arising out of a contract. The underlying issues in this case do not 

arise out of contract. See Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 

519, 524, 747 P.2d 1218, 1223 (1987) (Legal malpractice claims do not arise 

out of contract for purposes of § 12-341.01.); Dooley v. O’Brien, 226 Ariz. 149, 

154, ¶ 18, 244 P.3d 586, 591 (App. 2010) (Actions to enforce fiduciary duties 

created by law do not arise out of contract for purposes of § 12-341.01).
KOHNER v. PYPER

Decision of the Court

5

 

Additionally, although we disagree with Kohner’s substantive claims, we 

decline to award fees as a sanction under ARCAP 25. However, as the 

prevailing party on appeal, Pyper is entitled to an award of costs upon 

compliance with ARCAP 21.