request for attorney fees and costs to the arbitration panel because 

Canyon asked the district court to resolve its request in the first instance. 

Clark Cnty. Sch. Dist. V . Richardson Constr., Inc., 123 Nev. 382, 388, 168 

P.3d 87, 91-92 (2007) (explaining that a party on appeal is prevented from 

raising an argument regarding a district court error that "the party 

induced or provoked the court or the opposite party to commit"). 

Additionally, we reject Canyon's argument that this issue was unwaivable. 

The district court had the authority and subject matter jurisdiction to 

determine whether the arbitration panel's denial of Canyon's request for 

fees and costs under its offer of judgment was harmless error. See Coutee 

v. Barington Capital Grp., L.P., 336 F.3d 1128, 1134 (9th Cir. 2003) 

(providing that in reviewing an arbitrator award, if the court determines 

that an arbitrator error is harmless, there are no grounds for vacatur and 

remand). Further, the arbitration panel's denial of Canyon's request was 

harmless error because Canyon was not entitled to fees and costs under its 

offer of judgment as its $500,000 offer of judgment was less than the 

$702,000 joint and several damages award. See Keenan v. Hydra-Mac, 

Inc., 422 N.W.2d 741, 747 (Minn. Ct. App. 1988) (providing that where a 

party is jointly and severally liable for a judgment, the determination 

whether that party's offer of judgment is less favorable than the judgment 

finally entered depends on the entire amount of the joint and several 

judgment, not just the party's share of the judgment), rev'd on other 

grounds, 434 N.W.2d 463 (Minn. 1989). Accordingly, we affirm the district 

court's denial of Canyon's request for attorney fees and costs based on its 

offer of judgment. 

Next, in regard to Elko's challenge to the arbitration panel's 

denial of its request for attorney fees and costs against cross-respondent 

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Knight Piesold and Co., we conclude that the panel did not manifestly 

disregard the law in denying that request. Clark Cnty. Sch. Dist. v. 

Rolling Plains Constr., Inc., 117 Nev. 101, 103-04, 16 P.3d 1079, 1081 

(2001) (explaining that when a party attacks an arbitration award on a 

common-law ground, the award will only be vacated if the arbitrator's 

decision represents a manifest disregard of the law and this court reviews 

de novo a district court's application of the manifest disregard standard), 

disapproved on other grounds by Sandy Valley Assocs. v. Sky Ranch 

Estates Owners Ass'n, 117 Nev. 948, 35 P.3d 964 (2001). We previously 

concluded that Knight is both a design professional and a contractor, see 

Knight Piesold and Co. v. Fourth Judicial Dist. Court, Docket No. 54270 

(Order Denying Petition, Sept. 28, 2010), which warrants application of 

NRS 338.155(1)(a)(4)'s mandate that a contract between a public body and 

a design professional for public work must include a provision "Mat the 

prevailing party in an action to enforce the contract is entitled to 

reasonable attorney's fees and costs." NRS 38.238(1), however, provides 

the arbitration panel with discretion in awarding fees and costs and the 

parties have cited no law providing that a party must recover a money 

judgment to prevail under an NRS 338.155(1)(a)(4) contractual provision. 

As such, there is a colorable justification for the arbitration panel's 

conclusion that each party prevailed in part leading to the denial of Elko's 

request for fees and costs against Knight, and therefore, we affirm the 

district court's decision to confirm the panel's denial of attorney fees 

against Knight. Cf. Health Plan of Nev., Inc. v. Rainbow Med., LLC, 120 

Nev. 689, 698, 100 P.3d 172, 178 (2004) (providing that if "there is a 

colorable justification for the outcome, the award should be confirmed"). 

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Lastly, we conclude that the arbitration panel manifestly 

disregarded the law in denying Elko's request for fees and costs against 

Canyon. Rolling Plains, 117 Nev. at 103-04, 16 P.3d at 1081. Elko's claim 

for attorney fees and costs against Canyon is different than its claim 

against Knight because the claim is based on Canyon's status as the 

breaching party under their contract instead of Elko's status as a 

prevailing party. Elko and Canyon's contract explicitly provided that "the 

breaching party shall pay to the nonbreaching party all reasonable 

Attorney fees, cost[s] and other expenses, incurred by the nonbreaching 

party enforcing its rights as a result of said breach." (Emphasis added.) 

When parties agree by contract that attorney fees and costs are mandated, 

the arbitrator does not have discretion to deny an attorney fees and costs 

request and is limited to determining a reasonable amount for the fees and 

costs. Magenis v. Bruner, 187 P.3d 1222, 1225-26 (Colo. App. 2008). 

Accordingly, the arbitration panel manifestly disregarded the law by 

overlooking the parties' contractual provision mandating an award of 

attorney fees and costs to the nonbreaching party. See NRS 18.010(1) 

(providing that an attorney's compensation for his or her services is 

governed by agreement and is not restrained by law). The arbitration 

panel, however, has the discretion to determine in the first instance what 

attorney fees and costs award would be reasonable under the 

circumstances of this case.' Thus, we reverse the district court's 

'We note that the arbitration panel concluded that Elko "caused 

excessive expense in this arbitration" by asserting that the entire apron 

must be removed even though such removal "was not warranted by any 

reasonable view of the evidence and would result in economic waste," and 

this conclusion may factor into the panel's determination of a reasonable 

attorney fees and costs award. 

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Pickering 

confirmation of the panel's denial of Elko's attorney fees and costs request 

against Canyon and remand for further proceedings consistent with this 

order. 

It is so ORDERED. 2 

cia8„. 

Saitta 

cc: Chief Judge, The Fourth Judicial District Court 

Hon. Miriam Shearing, Senior Justice 

Robert L. Eisenberg, Settlement Judge 

Moore Law Group, PC 

Burke, Williams & Sorensen, LLP/Oakland 

Wilson Barrows & Salyer, Ltd. 

Weil & Drage, APC 

Elko County Clerk 

2We deny Elko's request for attorney fees and costs on appeal 

against Canyon under NRAP 38 and we deny Elko's request for attorney 

fees and costs on appeal against Knight. This denial of Elko's requests, 

however, is without prejudice to Elko's ability to seek attorney fees and 

costs on remand as the nonbreaching party in its appeal as to Canyon. See 

Muss° v. Binick, 104 Nev. 613, 614-15, 764 P.2d 477, 477-78 (1988). 

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