IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 82208 

FILF 

SEP 1 5 2022 

ELIZADETH A. BROWN 

CLERK F VIPREME COURT 

EY 

CiEPUTY CLE 

BETTY CHAN; AND ASIAN 

AMERICAN REALTY & PROPERTY 

MANAGEMENT, 

Appellants/Cross-Respondents, 

vs. 

WAYNE WU; JUDITH SULLIVAN; 

NEVADA REAL ESTATE CORP.; AND 

JERRIN CHIU, 

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. 

2Hereafter, we refer to appellants/cross-respondents collectively as 

"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. 

5Nor 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-thecase 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. 

7Chan 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 arraguirre 4) CrSiS rma.a"

J. 

Cadish 

, Sr.J. 

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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