### IN THE SUPREME COURT OF THE STATE OF NEVADA

No. 82208 

# FILF SEP 1 5 2022 ELIZADETHA.BROWN CLERK FVIPREME COURT EY CiEPUTYCLE 

### BETTY CHAN;AND ASIAN AMERICANREALTY & PROPERTY MANAGEMENT, Appellants/Cross-Respondents, vs. WAYNE WU; JUDITH SULLIVAN; NEVADA REAL ESTATE CORP.;AND JERRIN CHIU, Res•ondents/Cross-A ellants.



### ORDER OFAFFIRMANCE 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. EighthJudicial District Court, Clark County; Eric Johnson, Judge.'

Betty Chan and Wayne Wu both claimed to be entitled to a roughly $14,000realestate commission.2 They submittedthe disputeto 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 25percent.

Chanthenmovedin district court tovacate thepanel's award.3 On September 18, 2018, the district court entered an order denying Chan's motion and instead confirmingthe panel's award.

'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted.

2

### Hereafter, we refer to appellants/cross-respondents collectively as "Chan" and respondents/cross-appellants collectively as "Wu."

3

### Chanhad previouslyfiled a complaint in district court, and Wufiled a counterclaim for abuse of process. The litigation was stayed pending



### al,P.-2

# 89qa SUPREME COURT OF NEVADA (0) lum :40:1,PI.Wu then sought attorney fees based on a provision in the

Agreement toArbitrateto whichbothWu and Chan were bound. OnMarch 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 asjurisdictionally 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 feesthat 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 asfinal under NRCP 54(b). Chan has appealed, challengingthe September 2018order confirmingthe 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 summaryjudgment 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) ("Thiscourt reviews a district court's decision to vacate or confirm an arbitration award de novo."). In particular, she contendsthat the arbitrationpanel'sawardboth (1) manifestlydisregarded 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 ofthe arbitration but was ultimately renewed by Chan after the arbitration panel's decision.

SUPREME COURT

OF NEVADA (0) 1947A 2the award is arbitrary, capricious, or unsupported by the agreement; and

(2) whether the arbitrator manifestly disregarded the law.")."

For support, Chan contendsthat the "procuringcause doctrine" prohibits the splittingofa 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 onlyone procuringcause. See, e.g., Carrigan v. Ryan, 109 Nev. 797, 801-02, 858 P.2d 29, 32 (1993) ("To be the procuring cause ofa 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 ofhis
orherpeculiar activities." (quotingBinder v. LevyRealty 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 hewastheprocuringcauseofthe sale.");BartsasRealty, 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
oneprocuringcause,muchlessa casein whichthiscourthasheldthatthere

"Chan also contends that, under NRS 38.241(1)(d), the arbitration panel exceeded itspowers. We disagree, asthe 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 anissue, not whether the issue was correctly decided." (internal quotation marks omitted)).

SUPREME COURT OF NEVADA (0) 1947A 3

,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 ofthe law. See WPHArchitecture, Inc. v. Vegas VP, LP, 131Nev. 884, 890, 360 P.3d 1145, 1149(2015) ("In determiningwhether
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 Wuwas 75percent responsiblefor consummatingthe transactionand Chan
was 25percent 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 misinterpretationofthelaw. Instead, a court'sreview ofthe 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 marksomitted)). Accordingly, we affirm the district court's September 2018 order confirmingthe 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 ofthe 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.

SUPREME COURT

OF NEVADA
(0, 1947A 4Thomas v. CityofN. Las Vegas, 122Nev. 82, 90, 127P.3d 1057, 1063(2006)

("[W]hen the attorney fees matter implicates questions of law, the proper review is de novo."); In reArnerco 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 toArbitrate provides:

In the event I do not comply with the award and it is necessary for any party to obtain judicial confirmation and enforcement ofthe 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 ofthe 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 withboth 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 "Nodo what isrequired 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 courttoawardhim the fullcommission, suchrequests
were made either as an alternative to confirming the award or were made

SUPREME COURT OF NEVADA (01 19479 5before 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 asthey awarded Wu attorneyfees.7

With respect to the November 2020 order, Chan also argues that this court summarily denied a request for attorney feesin the previous appeal that we dismissed for lack ofjurisdiction, and that the law-of-thecase doctrine prohibited the district court from awarding attorneyfeesthat Wu incurred with respect to that appeal. We are not persuaded that the law-of-the-case doctrineisapplicable, asourprevious denialofattorneyfees contained no discussion ofthe merits ofWu'srequest and was not intended toprecludethe district courtfrom awardingthose samefees. SeeRecontrust 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'sbillingrecordsthat was devoted solely to Chiu, sothere is nobasis for reversing anyportion ofthe awards with respect to that contention.

SUPREME COURT OF NEVADA
WI 1947A 45Dc> 6Cross-appeal Thedistrict court granted summaryjudgment 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 nonmovingparty.").

"[T]he elements ofan abuse ofprocess 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 ofmaterial fact asto the second element. In support of that element, Wu relies on (1) Chan havingfiled the complaint before initiatingarbitration 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 asjurisdictionally 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 seeminglynegatesanyinaproprietythat couldbe inferred from Chan'saction. Withrespect toWu's secondpiece ofevidence, although

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### 0041. 7

### it is troublingthat 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 inthe use ofthe 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 asjurisdictionally defective, Chan had reasonable grounds tobelieve that at least one ofthe 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 asto the second element ofhis abuse-of-processcounterclaim. We therefore affirm the district court's summary judgment as to that counterclaim. Consistent with the foregoing, we

ORDER thejudgments ofthe district court AFFIRMED.8



# -- 9 4) 

# CrSi

S rma.a" arraguirre

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 ofthis matter under a general order ofassignment.

SUPREME COURT OF NEVADA
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