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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MILLS AND WOODS LAW PLLC, Plaintiff/Appellee,

v.

MARK WEISS, et al., Defendants/Appellants.

No. 1 CA-CV 21-0403

Appeal from the Superior Court in Maricopa County

No. CV2020-095587

The Honorable Tracey Westerhausen, Judge

AFFIRMED

COUNSEL

Stone Canyon Law, PLC, Mesa

By Taylor W. Tondevold, Rylan J. Stewart

Counsel for Plaintiff/Appellee

Ahwatukee Law Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Defendants/Appellants

Wilenchik & Bartness, P.C., Phoenix

By Dennis I. Wilenchik

Co-Counsel for Defendants/Appellants

FILED 10-04-2022
MILLS and WOODS v. WEISS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge Angela K. Paton and Judge Samuel A. Thumma joined.

C R U Z, Judge:

¶1 Mark Weiss, Shari Weiss, and Nesco Investment, LLC

(collectively “Nesco”) appeal the superior court’s orders confirming an 

arbitration award in favor of Mills and Woods Law PLLC (“Mills and 

Woods”) and denying their motion to vacate the award. For the following 

reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2017, Nesco retained Mills and Woods to represent them in 

a civil lawsuit. The parties’ written representation agreement (“the 

Agreement”), contained a detailed provision requiring any disputes 

between Nesco and Mills and Woods arising out of representation to be 

submitted to binding arbitration, “including, without limitation, issues as 

to legal fees and costs and claims for professional malpractice . . . .” Under 

the Agreement, each side had a right to name a party-designated arbitrator, 

provided the arbitrators selected were “disinterested individuals 

knowledgeable in disputes between legal counsel and clients,” with “not

less than fifteen (15) years’ experience in litigating, arbitrating or 

adjudicating disputes between legal counsel and clients . . . .” If the two 

party-designated arbitrators could not agree on the resolution of a dispute, 

they would jointly select a third arbitrator and, collectively, the three 

arbitrators would resolve the dispute.

¶3 When Nesco failed to pay its invoices for legal services, Mills 

and Woods served Nesco with a demand for arbitration. Nesco responded 

to the demand and brought a counterclaim for malpractice. Mills and 

Woods named William Klain as its party-designated arbitrator and Nesco 

named two possible party-designated arbitrators, although it ultimately 

selected Lawrence H. Fleischman.

¶4 In the response, Nesco objected to Klain, asserting Klain was 

a relative of and had represented Russell Piccoli, an attorney who had sued 

the Weisses. Mark Weiss, who is also an attorney, later sent an email to the 
MILLS and WOODS v. WEISS, et al.

Decision of the Court

3

parties and Klain requesting Klain recuse himself because of his 

relationship with Piccoli. Klain responded and further disclosed that “Mills 

& Wood[s] (and its various attorneys) have been opposing counsel on a 

number of actions in which I have been involved over the past several years. 

By virtue of such contact, I have gotten to know Mr. Woods and Mr. Mills 

and have on occasion socialized with them.” Klain ultimately determined 

that he did not have any conflict that would prevent him from serving as 

arbitrator and further disclosed that he had engaged Fleischman as a 

mediator in the past. Nesco did not file a motion to disqualify Klain or 

object to his participation based on his relationship with Mills and Woods 

until after the two party-designated arbitrators issued their award.

¶5 The arbitrators held an evidentiary hearing and issued an 

award in October 2020 finding in favor of Mills and Woods on its claim for 

breach of contract, and against Nesco on its counterclaim alleging 

malpractice. The arbitrators reduced the amount of fees sought by Mills 

and Woods by nearly twenty percent, awarding it $220,000 plus post-award 

interest, but did not award Mills and Woods attorneys’ fees and costs in 

connection with the arbitration proceedings.

¶6 Later that month, Mills and Woods filed an application for 

confirmation of the arbitration award.1 In December 2020, Nesco moved to 

vacate the award, or alternatively to stay it. Nesco argued that (1) arbitrator 

Klain was not neutral and had failed to disclose in sufficient detail his 

relationship with Mills and Woods, (2) the arbitrators failed to postpone the 

arbitration hearing after Nesco provided sufficient cause for postponement 

of the hearing, and (3) the arbitrators exceeded their power under the 

Agreement. Mills and Woods countered that Klain’s relationship with 

Mills and Woods was insubstantial, had been disclosed, and Nesco’s only 

objection to Klain serving as an arbitrator had been his relationship with 

Piccoli. In reply, Nesco disputed that Klain’s relationship with Mills and 

Woods was insubstantial, noting that Klain’s Facebook page showed that 

Klain and Sean Woods were Facebook friends, that Klain had thanked 

Woods on Facebook for tickets to a Rolling Stones concert in August 2019, 

and that Woods had “liked” or otherwise reacted to a number of Klain’s 

1 Mills and Woods sought confirmation under Arizona’s Uniform 

Arbitration Act, see A.R.S. § 12-1501 et seq., when (given the dates involved) 

the applicable statute is Arizona’s Revised Uniform Arbitration Act, see

A.R.S. § 12-3003. The parties, however, have not asserted that the 

substantive provisions of the revised act, which govern this dispute, differ 

in any meaningful way.
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Facebook posts, including a post dated August 4, 2020, about the death of 

Klain’s cat.

¶7 After evidentiary hearings in February and April 2021,

2 the 

superior court confirmed the award and denied the motion to vacate. The 

court found that Klain was a “disinterested” arbitrator within the meaning 

of the Agreement, and that if Nesco had believed Klain’s disclosure about 

Mills and Woods was insufficient and “vague and ambiguous, then the time 

to explore and object to that defect was [during the arbitration proceeding], 

not now.” After entry of a final judgment, we have jurisdiction over 

Nesco’s appeal pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-

2101(A)(1), -2101.01(A)(6).

DISCUSSION

I. Arbitrator’s Disclosure

¶8 Nesco first argues Klain failed to fully disclose his personal 

connections with Mills and Woods, that he was not a “disinterested

individual” under the Agreement and the facts evidence partiality that 

warrants vacating the arbitration award. We review the superior court’s 

order confirming an arbitration award or denying a motion to vacate an 

award for an abuse of discretion. Chang v. Siu, 234 Ariz. 442, 448, ¶ 23 (App. 

2014); Fisher v. USAA Cas. Ins. Co., 245 Ariz. 270, 272, 274, ¶¶ 9, 18 (App. 

2018).

¶9 “[T]he goal of arbitration is to make a final disposition of 

controversies in a speedier, less expensive manner than is available under 

normal litigation proceedings.” Pima County v. Maya Constr. Co., 158 Ariz. 

151, 154 (1988). The law favors arbitration in disputes that the parties have 

agreed to arbitrate. Allstate Prop. & Cas. Ins. Co. v. Watts Water Techs., Inc., 

244 Ariz. 253, 257, ¶ 10 (App. 2018). The party challenging an arbitration 

award has the burden of proving the existence of grounds to vacate the 

award. Wages v. Smith Barney Harris Upham & Co., 188 Ariz. 525, 530 (App. 

1997). As Nesco acknowledges, “[t]he superior court may reject an 

arbitration award only on narrow statutorily enumerated grounds.” Nolan 

v. Kenner, 226 Ariz. 459, 461, ¶ 5 (App. 2011).

2 At the April 2021 hearing, Klain testified that he had over 500 

Facebook friends and had socialized with Woods approximately six times 

in the six years he had known Woods. He did not consider Woods a close 

friend.
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¶10 Under Arizona’s Revised Uniform Arbitration Act (the Act), 

A.R.S. §§ 12-3001 to -3029, “[a]n individual who has a known, direct and 

material interest in the outcome of the arbitration proceeding or a known, 

existing and substantial relationship with a party may not serve as an 

arbitrator required by an agreement to be neutral.” A.R.S. § 12-3011(B). The 

Act imposes disclosure requirements on arbitrators and prospective 

arbitrators:

A. Before accepting appointment, an individual who is 

requested to serve as an arbitrator, after making a reasonable 

inquiry, shall disclose to all parties to the agreement to 

arbitrate, to the arbitration proceeding and to any other 

arbitrators any known facts that a reasonable person would 

consider likely to affect the impartiality of the arbitrator in the 

arbitration proceeding, including both:

1. A financial or personal interest in the outcome of the 

arbitration proceeding.

2. An existing or past relationship with any of the parties to 

the agreement to arbitrate or the arbitration proceeding, their 

counsel or representatives, a witness or another arbitrator.

A.R.S. § 12-3012(A). “If an arbitrator discloses a fact required by subsection 

A or B of [A.R.S. § 12-3012] and a party timely objects to the appointment 

or continued service of the arbitrator based on the fact disclosed, the 

objection may be a ground under § 12-3023, subsection A, paragraph 2 for 

vacating an award made by the arbitrator.” A.R.S. § 12-3012(C) (emphasis 

added). The Act provides that the superior court “shall” vacate an 

arbitration award in certain limited circumstances, including (1) when there 

was “[e]vident partiality by an arbitrator appointed as a neutral arbitrator,”

(2) when “[a]n arbitrator refused to postpone the hearing on showing of 

sufficient cause for postponement,” and (3) when an arbitrator exceeds the 

powers of the arbitrator. A.R.S. § 12-3023(A)(2)(a), (3), (4). When an 

agreement requires an arbitrator “to be neutral,” “[a]n arbitrator appointed 

as a neutral arbitrator who does not disclose a known, direct and material 

interest in the outcome of the arbitration proceeding or a known, existing 

and substantial relationship with a party is presumed to act with evident 

partiality under § 12-3023, subsection A, paragraph 2.” A.R.S. § 12-3012(E)

(emphasis added).

¶11 “[I]n determining whether ‘evident partiality’ exists, courts 

take a case-by-case approach.” Wages, 188 Ariz. at 531. Whether evident 
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partiality exists is “highly dependent on the unique factual settings of each 

particular case.” Id. (citation omitted). “Evident partiality” is distinct from 

actual bias. Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 147 

(1968) (under the Federal Arbitration Act (“FAA”), party seeking to vacate 

an arbitration award for evident partiality need not show that the arbitrator 

“was actually guilty of fraud or bias in deciding th[e] case.”). “[E]vident 

partiality is present when undisclosed facts show a reasonable impression 

of partiality.” Schmitz v. Zilveti, 20 F.3d 1043, 1046 (9th Cir. 1994) 

(construing FAA) (citations and internal quotation marks omitted).

¶12 Parties must, when possible, raise their complaints about the 

arbitration during the arbitration process itself. “[P]arties who know or 

have reason to know of possible partiality must raise an objection with the 

arbitrator during the course of the arbitration proceeding . . . [i]t would 

defeat th[e] primary purpose [of arbitration] to allow parties to withhold 

such objections until after an unfavorable award.” Fisher, 245 Ariz. at 273, 

¶ 14. “Ensuring prompt, efficient, and inexpensive dispute resolution . . . 

requires parties to raise objections to be handled by the arbitrator during 

the proceedings to avoid unnecessary and protracted litigation.” Id.

(citation and internal quotation marks omitted).

¶13 Citing A.R.S. § 12-3012(E), Nesco argues the superior court 

should have vacated the award because this is a “nondisclosure” case 

requiring a presumption of evident partiality. Klain, however, disclosed 

that he had known both Mills and Woods for several years, had served as 

opposing counsel on cases with them, and had occasionally socialized with 

them. The disclosure provided the general nature and scope of the 

relationship and complied with A.R.S. § 12-3012(A). None of the evidence 

cited by Nesco, including the Facebook relationship with Woods, the night 

out in 2019 including dinner, drinks and a concert, and several other inperson social contacts occurring “long before” the arbitration, is 

inconsistent with that disclosure. After Klain’s disclosure, Nesco did not 

timely object to Klain’s appointment based on his social relationship with 

Mills and Woods or ask Klain for additional details about the relationship.3 

Instead, Nesco fully participated in the arbitration proceedings and did not 

raise any issue about the disclosed relationship with Mills and Woods until 

after the arbitrators issued their award. Because it was on notice, Nesco 

should have raised its objection to Klain based on his relationship with 

Mills and Woods or sought further details during the arbitration 

3 Nesco’s claim that Klain “deliberately refused” to disclose any 

substantive details about his relationship is not supported by the record. 

Nor is its claim that Klain and Woods had a “deep friendship.”
MILLS and WOODS v. WEISS, et al.

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proceeding. See Fisher, 245 Ariz. at 273, ¶ 14. We find no abuse of discretion 

in the superior court’s decision not to vacate the arbitration award.

II. Failure to Postpone

¶14 Nesco next argues the superior court erred in its decision not 

to vacate the award because the arbitrators refused to postpone the 

arbitration hearing. See A.R.S. § 12-3023(A)(3) (“On motion to the court by 

a party to an arbitration proceeding, the court shall vacate an award made 

in the arbitration proceeding if . . . [a]n arbitrator refused to postpone the 

hearing on showing of sufficient cause for postponement . . . so as to 

prejudice substantially the rights of a party to the arbitration proceeding.”).

¶15 Without citation to the record, Nesco argues that it asked the 

arbitrators to postpone or stay the arbitration hearing because the case 

underlying its malpractice claim against Mills and Woods, World Egg Bank, 

Inc. v. Nesco Investments, LLC, 251 Ariz. 377 (App. 2021), was still pending 

on appeal. In its motion to vacate the arbitration award, Nesco argued that 

it had provided the arbitrators with sufficient cause for postponement in its 

June 3, 2020 response to the demand for arbitration based on the following 

statement:

At this juncture, I must point out that Nesco is appealing 

Judge Whitten’s decision on valuation. Since Mills & Woods 

elected to initiate the arbitration before knowing the results of 

the appeal [in World Egg Bank, Inc.], we are now forced to 

bring our malpractice claim. We cannot wait for the results of 

the appeal to fully evaluate their malpractice. Due to Mills & 

Woods decision to initiate arbitration before conclusion of the 

appeal, they have waived any benefit that might have accrued 

pending the results of the appeal.

The superior court found that nothing in the record showed that Nesco 

moved to postpone or stay the arbitration hearing before the arbitration

award, and instead found the June 3, 2020 answer showed that Nesco had 

pursued its malpractice claim in the arbitration proceedings. The court 

found that Nesco waived its postponement argument. We agree that Nesco 

waived its postponement argument by affirmatively bringing its 

malpractice claim in the arbitration proceeding and not seeking a 

continuance. The record further supports this conclusion. In its September 

21, 2020 response brief, Nesco wrote the following:

As discussed in the emails and conference call prior to the 

Opening Briefs, this arbitration is independent of the appeal. 
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It was Mills & Woods decision to force binding arbitration 

prior to the final appellate court ruling. Nesco should not be 

made to suffer in that it was Mills & Woods who forced the 

timing of this dispute. Therefore, Nesco requests that the total 

payment to Nesco from Mills & Woods, as a result of this 

binding arbitration, be immediately due and payable.

We find no abuse of discretion.

III. Exceeding Powers

¶16 Nesco next argues the superior court erred by failing to vacate 

the arbitration award under A.R.S. § 12-3023(A)(4) because the arbitrators 

exceeded their powers under the Agreement. See A.R.S. § 12-3023(A)(4) (on 

motion to the court, the court shall vacate an arbitration award if “[a]n 

arbitrator exceeded the arbitrator’s powers.”). It contends the arbitrators 

exceeded their powers by (1) failing to appoint a third arbitrator after 

arbitrator Fleischman “determined that he could not reach a decision on the 

matters in dispute”; (2) holding an evidentiary hearing more than twenty 

days after the arbitrators received the demand for arbitration and answer;

and (3) failing to allow post-hearing briefing. It cites no legal authority 

other than section 12-3023(A)(4) for its argument.

¶17 We agree with the superior court’s assessment that the email 

cited by Nesco did not “reveal[] an impasse between [Fleischman] and 

Arbitrator Klain, or one that only a third arbitrator could resolve.” In that 

email, Fleischman informed the parties about a conference call for the 

parties “to discuss how best to proceed,” given that the parties wanted to 

resolve their disputes “as quickly and inexpensively as possible.” 

Fleischman then stated, “Perhaps some more briefing and oral argument 

can result in a unanimous decision. The process described in 4.1(b) seems 

only to apply if a third arbitrator is necessary. We need to discuss if it 

makes sense for another arbitrator to be selected now to avoid having to do 

things twice, but those issues can be dealt with in the conference call.” As 

the superior court noted, Nesco failed to cite to any objection it made about 

proceeding with two arbitrators instead of three or about the procedures 

the arbitrators followed. Nor does it do so on appeal. Similarly, Nesco 

cannot square its argument (addressed in the previous section) that the 

hearing should have been continued with its argument here that the 

hearing was not held promptly enough. Nor has Nesco shown that any 

refusal to allow post-hearing briefing precluded the superior court’s 

rulings. Nesco has shown no abuse of discretion in the superior court’s 
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decision declining to vacate the award based on the arbitrators exceeding 

their powers.

IV. Null and Void

¶18 Finally, Nesco argues the arbitrator’s decision, which found

that Mills and Woods’ representation of Nesco did not fall below the 

standard of care, is null and void because it was incompatible with this 

court’s opinion in World Egg Bank, Inc. According to Nesco, “the outcome 

of [World Egg Bank, Inc.] was an implicit recognition that [Mills and Woods] 

had committed malpractice by, as the arbitrators themselves had 

concluded, believing that April 17, 2015 was the fair-value valuation date 

and litigating the underlying case based on that fallacious and incompetent 

belief.” Nesco cites no legal authority other than World Egg Bank, Inc. for its 

argument. Even if Nesco has not waived this argument on review, nothing 

in World Egg Bank, Inc. compels a conclusion that Mills and Woods 

committed legal malpractice. Any alleged malpractice on the part of Mills 

and Woods was not an issue raised by any party to the World Egg Bank, Inc. 

appeal, and Nesco prevailed in that appeal. Nesco has not shown that the 

arbitration award is null and void.

V. Attorneys’ Fees

¶19 Mills and Woods seeks an award of attorneys’ fees pursuant 

to A.R.S. § 12-341.01(A) and costs pursuant to A.R.S. §§ 12-331, -341, -342. 

As the successful party, Mills and Woods is entitled to costs pursuant to 

A.R.S. § 12-341 and in our discretion, we award it reasonable attorneys’ fees 

upon compliance with ARCAP 21.

CONCLUSION

¶20 For the foregoing reasons, we affirm.