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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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
Pickering
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
2 We
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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<01 1947A allep