Chan v. Wu

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
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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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