Chan v. Wu ( 2022 )


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  •                            IN THE SUPREME COURT OF THE STATE OF NEVADA
    BETTY CHAN; AND ASIAN                                  No. 82208
    AMERICAN REALTY & PROPERTY
    MANAGEMENT,
    Appellants/Cross-Respondents,                              FILF
    vs.
    WAYNE WU; JUDITH SULLIVAN;                                 SEP 1 5 2022
    NEVADA REAL ESTATE CORP.; AND                           ELIZADETH A. BROWN
    CLERK F VIPREME COURT
    JERRIN CHIU,                                          EY
    CiEPUTY CLE
    Res • ondents/Cross-A ellants.
    ORDER OF AFFIRMANCE
    This is an appeal and cross-appeal from a judgment, certified
    as final under NRCP 54(b), in an action to vacate an arbitration award.
    Eighth Judicial District Court, Clark County; Eric Johnson, Judge.'
    Betty Chan and Wayne Wu both claimed to be entitled to a
    roughly $14,000 real estate commission.2 They submitted the dispute to an
    arbitration panel of the Greater Las Vegas Association of Realtors
    (GLVAR). Following a hearing, the panel awarded Wu 75 percent of the
    commission and Chan the rernaining 25 percent.
    Chan then moved in district court to vacate the panel's award.3
    On September 18, 2018, the district court entered an order denying Chan's
    motion and instead confirming the panel's award.
    'Pursuant to NRAP 34(f)(1), we have determined that oral argument
    is not warranted.
    Hereafter, we refer to appellants/cross-respondents collectively as
    2
    "Chan" and respondents/cross-appellants collectively as "Wu."
    3Chan had previously filed a complaint in district court, and Wu filed
    a counterclaim for abuse of process. The litigation was stayed pending
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    Wu then sought attorney fees based on a provision in the
    Agreement to Arbitrate to which both Wu and Chan were bound. On March
    22, 2019, the district court entered an order awarding Wu roughly $21,000
    in attorney fees.    Chan attempted to appeal that order, but this court
    dismissed the appeal as jurisdictionally defective. See Chan v. Wu, Docket
    No. 78666, 
    2020 WL 2510925
     (Nev. May 14, 2020) (Order Dismissing
    Appeal).
    On November 23, 2020, the district court entered an order that
    (1) awarded Wu roughly an additional $36,000 in attorney fees that he had
    incurred with respect to the previously dismissed appeal, and (2) granted
    surnmary judgment for Chan on Wu's abuse-of-process counterclaim. The
    district court also certified that order as final under NRCP 54(b). Chan has
    appealed, challenging the September 2018 order confirming the arbitration
    panel's award, as well as the two orders awarding attorney fees. Wu has
    cross-appealed, challenging the November 2020 order insofar as it granted
    summary judgment for Chan on the abuse-of-process counterclaim.
    Appeal
    Chan first contends that the district court erred in confirming
    the arbitration award. C'f. Washoe Cty. Sch. Dist. v. White, 
    133 Nev. 301
    ,
    303, 
    396 P.3d 834
    , 838 (2017) ("This court reviews a district court's decision
    to vacate or confirm an arbitration award de novo."). In particular, she
    contends that the arbitration panel's award both (1) manifestly disregarded
    the law and (2) was arbitrary and capricious. See id. at 306, 396 P.3d at
    839 ("There are two common-law grounds recognized in Nevada under
    which a court may review private binding arbitration awards: (1) whether
    resolution of the arbitration but was ultimately renewed by Chan after the
    arbitration panel's decision.
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    the award is arbitrary, capricious, or unsupported by the agreement; and
    (2) whether the arbitrator manifestly disregarded the law.")."
    For support, Chan contends that the "procuring cause doctrine"
    prohibits the splitting of a real estate commission. This court has resolved
    numerous issues implicating the procuring cause doctrine and, as Chan
    observes, all those decisions appear to have presupposed that there can be
    only one procuring cause. See, e.g., Carrigan v. Ryan, 
    109 Nev. 797
    , 801-02,
    
    858 P.2d 29
    , 32 (1993) ("To be the procuring cause of a sale, a broker must
    'set in motion a chain of events which, without break in their continuity,
    cause the buyer and seller to come to terms as the proximate result of his
    or her peculiar activities." (quoting Binder v. Levy Realty Co., 
    106 Nev. 221
    ,
    225, 
    790 P.2d 497
    , 500 (1990))); Atwell v. Sw. Secs., 
    107 Nev. 820
    , 825, 
    820 P.2d 766
    , 769 (1991) ("To be entitled to a broker's commission, [the broker]
    must . . . show that he was the procuring cause of the sale."); Bartsas Realty,
    Inc. v. Leuerton, 
    82 Nev. 6
    , 9, 
    409 P.2d 627
    , 629 (1966) ("Faced with
    competing brokers, a court must decide which was the 'procuring' or
    'inducing' cause of the sale.    That broker is entitled to a commission,
    irrespective of who makes the actual sale or terms thereof." (internal
    citations omitted)). However, Chan has not identified a case in which this
    court has addressed the specific issue of whether there can be more than
    one procuring cause, much less a case in which this court has held that there
    "Chan also contends that, under NRS 38.241(1)(d), the arbitration
    panel exceeded its powers. We disagree, as the panel undisputedly had the
    authority under the Agreement to Arbitrate to determine how the
    commission should be distributed. See White, 133 Nev. at 304, 396 P.3d at
    838 ("[T]he question is whether the arbitrator had the authority under the
    agreement to decide an issue, not whether the issue was correctly decided."
    (internal quotation marks omitted)).
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    ,
    cannot be more than one procuring cause.5           Accordingly, we are not
    persuaded that the arbitration panel's decision to split the commission was
    a manifest disregard of the law. See WPH Architecture, Inc. v. Vegas VP,
    LP, 
    131 Nev. 884
    , 890, 
    360 P.3d 1145
    , 1149 (2015) ("In determining whether
    an arbitrator has manifestly disregarded the law, the issue is not whether
    the arbitrator correctly interpreted the law, but whether the arbitrator,
    knowing the law and recognizing that the law required a particular result,
    simply disregarded the law." (internal quotations omitted)). Relatedly, we
    are not persuaded that the panel's decision to split the commission 75/25
    percent was arbitrary or capricious, as the panel may have concluded that
    Wu was 75 percent responsible for consummating the transaction and Chan
    was 25 percent responsible for consummating the transaction.6 See White,
    133 Nev. at 308, 396 P.3d at 841 ("The arbitrary-and-capricious standard
    does not permit a reviewing court to vacate an arbitrator's award based on
    a misinterpretation of the law. Instead, a court's review of the arbitrary and
    capricious standard is limited to whether the arbitrator's findings are
    supported by substantial evidence in the record." (internal alterations,
    citation, and quotation marks omitted)). Accordingly, we affirm the district
    court's September 2018 order confirming the panel's arbitration award.
    Chan next contends that the district court erroneously
    awarded attorney fees by misconstruing the Agreement to Arbitrate. Cf.
    5 Nor do we intend to rnake such a holding in this case. Cf. NRAP
    36(c)(2) ("An unpublished disposition ... does not establish mandatory
    precedent . . . .").
    6In this, we note that the transcript of the arbitration hearing is not
    in the record. We recognize that Chan requested it from GLVAR and that
    her requests were denied. Relatedly, Chan's August 27, 2022, motion is
    granted.
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    Thomas v. City of N. Las Vegas, 
    122 Nev. 82
    , 90, 
    127 P.3d 1057
    , 1063 (2006)
    ("[W]hen the attorney fees matter implicates questions of law, the proper
    review is de novo."); In re Arnerco Derivative Litig., 
    127 Nev. 196
    , 211, 
    252 P.3d 681
    , 693 (2011) ("We apply de novo review to contract interpretation
    issues."). As relevant here, the Agreement to Arbitrate provides:
    In the event I do not comply with the award and it
    is necessary for any party to obtain judicial
    confirmation and enforcement of the award against
    me, I agree to pay that party costs and reasonable
    attorney's fees incurred in obtaining such
    confirmation and enforcement.
    Chan contends that she did comply with the award but simply challenged
    it, in that the $14,000 commission was never in her possession and she
    therefore did not wrongfully retain any of the commission.        Chan also
    contends that it was not necessary for Wu to "obtain judicial confirmation
    and enforcement of the award" because Wu did not formally file a motion to
    confirm the award and because Wu requested that the district court award
    him the full commission.
    We disagree with both arguments. First, we are not persuaded
    that Chan could have simultaneously "compl[ied]" with the award while
    challenging its validity in district court.     See Comply, Black's Law
    Dictionary (11th ed. 2019) (defining "comply" as "No do what is required or
    requested; to conform, submit, or adapt to (a command demand,
    requirement, etc.)").   Chan's second argument is likewise unavailing
    because although Wu did not formally file a motion to confirm the award,
    he was forced to oppose Chan's motion to vacate the award, and he did so
    by expressly stating "[t]he Award must be confirmed." To the extent that
    Wu asked the district court to award him the full commission, such requests
    were made either as an alternative to confirming the award or were made
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    before the arbitration took place. Accordingly, we agree with the district
    court that Wu was entitled to attorney fees under the Agreement to
    Arbitrate.     We therefore affirm the district court's March 2019 and
    November 2020 orders insofar as they awarded Wu attorney fees.7
    With respect to the November 2020 order, Chan also argues
    that this court summarily denied a request for attorney fees in the previous
    appeal that we dismissed for lack of jurisdiction, and that the law-of-the-
    case doctrine prohibited the district court from awarding attorney fees that
    Wu incurred with respect to that appeal. We are not persuaded that the
    law-of-the-case doctrine is applicable, as our previous denial of attorney fees
    contained no discussion of the merits of Wu's request and was not intended
    to preclude the district court from awarding those same fees. See Recontrust
    Co. v. Zhang, 
    130 Nev. 1
    , 8, 
    317 P.3d 814
    , 818 (2014) ("Normally, for the
    law-of-the-case doctrine to apply, the appellate court must actually address
    and decide the issue explicitly or by necessary implication." (internal
    quotation marks omitted)); see also Liu v. Christopher Homes, LLC, 
    130 Nev. 147
    , 151, 
    321 P.3d 875
    , 877 (2014) (reviewing de novo the
    interpretation of this court's previous dispositions).       Accordingly, the
    district court was not precluded from awarding the November 2020 fees.
    Consistent with the foregoing, we affirm the orders that Chan challenges
    on appeal.
    7 Chan  contends that the district court improperly awarded attorney
    fees to respondent/cross-appellant Jerrin Chiu because he was not a party
    to the arbitration. However, Chan has not identified any portion of
    counsel's billing records that was devoted solely to Chiu, so there is no basis
    for reversing any portion of the awards with respect to that contention.
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    Cross-appeal
    The district court granted summary judgment for Chan on Wu's
    abuse-of-process counterclaim. In doing so, the district court reasoned that
    Chan "had a right to file the civil Complaint." Wu contends that despite
    Chan's right to file her complaint, he produced evidence that, when viewed
    in the light most favorable to him, creates questions of material fact as to
    the viability of his abuse-of-process claim. Cf. Wood v. Safeway, Inc., 
    121 Nev. 724
    , 729, 
    121 P.3d 1026
    , 1029 (2005) ("[W]hen reviewing a motion for
    summary judgment, the evidence, and any reasonable inferences drawn
    from it, must be viewed in a light most favorable to the nonmoving party.").
    "[T]he elements of an abuse of process claim are: (1) an ulterior
    purpose by the defendants other than resolving a legal dispute, and (2) a
    willful act in the use of the legal process not proper in the regular conduct
    of the proceeding." LaMantia v. Redisi, 
    118 Nev. 27
    , 30, 
    38 P.3d 877
    , 879
    (2002). While we agree with Wu that it is reasonable to infer an ulterior
    motive from Chan's February 5, 2016, email, we are not persuaded that Wu
    has introduced evidence sufficient to create a question of material fact as to
    the second element.    In support of that element, Wu relies on (1) Chan
    having filed the complaint before initiating arbitration in order to allegedly
    gain an advantage in arbitration; (2) Chan failing to pursue her claims or
    seek discovery against KB Homes, which is not a party to this appeal; and
    (3) Chan filing the previous appeal that was dismissed as jurisdictionally
    defective. With respect to Wu's first piece of evidence, it is unclear what
    advantage Chan was seeking, as Wu filed his own abuse-of-process
    counterclaim before he moved to dismiss Chan's complaint pending
    arbitration, which seemingly negates any inapropriety that could be inferred
    from Chan's action. With respect to Wu's second piece of evidence, although
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    it is troubling that Chan did not seek to procure the purported registration
    card from KB Homes, we do not believe that this necessarily amounts to a
    "willful act in the use of the legal process not proper in the regular conduct
    of the proceeding."   
    Id.
        With respect to Wu's third piece of evidence,
    although Wu characterizes the appeal as "frivolous" and this court
    ultimately dismissed it as jurisdictionally defective, Chan had reasonable
    grounds to believe that at least one of the orders challenged in that appeal
    was substantively and timely appealable.         Consequently, we are not
    persuaded that Wu produced evidence sufficient to create a question of
    material fact as to the second element of his abuse-of-process counterclaim.
    We therefore affirm the district court's summary judgment as to that
    counterclaim. Consistent with the foregoing, we
    ORDER the judgments of the district court AFFIRMED.8
    --9     4)  CrSi
    arraguirre S   rma.a"
    J.                                       , Sr.J.
    Cadish
    cc:   Hon. Eric Johnson, District Judge
    Frizell Law Firm, PLLC
    Blackrock Legal, LLC
    Eighth District Court Clerk
    8The Honorable Mark Gibbons, Senior Justice,      participated in the
    decision of this matter under a general order of assignment.
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