Maiza v. King ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SALAH MAIZA, INDIVIDUALLY; AND No. 64966
NEVADA CHECKER CAB
CORPORATION,
Appellants,
FILED
vs. JAN 15 2016
DENISE KING, TRACE K. LINDEMAN
Respondent. CLERK Q,SUPREME COURT
BY
DEPUTY4"CLERI
ORDER DENYING MOTION TO DISMISS
AND ORDER OF AFFIRMANCE
This is an appeal from a district court order granting a motion
to confirm an arbitration award inclusive of attorney fees, costs, and
interest, and denying a motion to vacate the award. Eighth Judicial
District Court, Clark County; Kenneth C. Cory, Judge.
Respondent has moved to dismiss this appeal, arguing that
the parties agreed that the arbitration decision is final and binding and to
waive their right to appeal. Appellants oppose the motion, arguing that
they are not challenging the decision by the panel but rather the district
court's decision regarding the timing of respondent's requests for interest,
costs, and attorney fees. The motion to dismiss is denied. Although the
parties agreed to be bound by the arbitrators' decision and to waive their
rights to litigate the dispute and/or appeal the arbitrators' award, both
parties filed district court motions after the arbitration award issued and
litigated in district court the matters of interest, costs, and fees. The
appeal is limited to the timeliness issue and the court's decision denying
appellants' motion to vacate the award under NRS 38.241(1)(d). Given the
limited scope of this appeal, we conclude that the waiver provision does
SUPREME COUFtT
OF
NEVADA
(0) 1947A 4400
not require the appeal's dismissal." Hudson v. Horseshoe Club Operating
Co., 112 Nev. 446, 457, 916 P.2d 786, 792 (1996) (discussing waiver).
On appeal, appellants argue that the district court improperly
interpreted the parties' arbitration agreement in determining that
interest, costs, and attorney fees matters were governed by NRS 17.115,
NRS 18.020, and NRCP 68, such that respondent's motions for such
awards were timely filed under NRCP 54(d)(2)(B), which provides that a
motion for attorney fees "must be filed no later than 20 days after notice of
entry of judgment is served." Appellants argue that the arbitration was
governed by NRS Chapter 38, and respondent therefore was required to
move under NRS 38.237 to modify or correct the award within 20 days
after receiving the arbitration award, which she failed to do.
Having considered the parties' arguments, we conclude that
the district court did not err in confirming the arbitration award inclusive
of interest, costs, and fees, and declining to vacate the award. The parties'
agreement provides that the "Offer of Judgment Rule as specified in
NRCP 68 and NRS 17.115 shall apply to the arbitration proceedings for
the purposes of determining the prevailing party," and that the "prevailing
party shall recover costs pursuant to NRS 18.005 and attorney's fees and
prejudgment interest pursuant to NRS 17.115 and NRCP 68." Although
the parties also reserved their rights under certain provisions of NRS
Chapter 38, including NRS 38.237, the district court found that because
the agreement expressly provided that the offer of judgment rule shall
apply and the prevailing party shall recover prejudgment interest, costs,
and attorney fees, the agreement's references to NRS 17.115, NRS 18.005,
'Appellants' request for sanctions is denied.
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
and NRCP 68 created an exception to the provisions under NRS Chapter
38 regarding the timeliness for filing a motion to modify, correct, or vacate
the award. The court therefore determined that under NRCP 54(d)(2)(B),
respondent's district court motion was timely filed less than 20 days after
service of notice of the court's order and judgment confirming the
arbitration award with prejudgment interest. We perceive no reversible
error in that determination. 2 See Am. First Fed. Credit Union v. Soro, 131
Nev. Adv. Op., 73, 359 P.3d 105, 106 (2015) (recognizing that when there
is no dispute of fact, contract interpretation presents a legal issue, which
calls for de novo review on appeal); Thomas v. City of N. Las Vegas, 122
Nev. 82, 97, 127 P.3d 1057, 1067 (2006) (providing that a district court
order confirming an arbitration award is reviewed de novo on appeal).
Appellants also argue that the district court erred by denying
their motion to vacate the award under NRS 38.241(1)(d) on the ground
that two of the arbitrators exceeded their powers by removing the third
arbitrator from the panel. The district court denied the motion, finding
nothing to indicate that the result would have been any different if the
matter were referred back to the panel with the third arbitrator
participating. We perceive no error in this decision either. First, at the
status check hearing, appellants stated that the arbitrator's removal did
21n WPH Architecture, Inc. v. Vegas VP, LP, 131 Nev., Adv. Op. 88,
360 P.3d 1145, 1148-49 (2015), we determined that a party's request for
costs and attorney fees under NRCP 68, NRS 17.115, and NRS 18.020 did
not require an arbitration panel to award costs and fees because NRS
38.238(1) makes such awards permissive in an arbitration proceeding.
Here, in contrast, the parties' agreement expressly provided that NRCP
68, NRS 17.115, and NRS 18.020 governed in determining the prevailing
party, who shall be awarded prejudgment interest, costs, and fees.
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
not "matter because it's a majority decision anyway," so "it's neither here
nor there." When later asked, appellants were unable to articulate what
form of relief they wanted the district court to grant in regard to the
arbitrator's removal. Regardless, appellants have not met their burden of
demonstrating how the award was made in excess of the arbitrators'
powers given that the agreement provided that the panel would decide
respondent's claims, which it did, resulting in a binding majority decision.
The third arbitrator's removal did not occur until after that arbitrator
agreed that respondent was the prevailing party. See Health Plan of Nev.,
Inc. v. Rainbow Med., LLC, 120 Nev. 689, 697, 100 P.3d 172, 178 (2004)
(explaining that absent a showing by clear and convincing evidence,
"courts will assume that the arbitrator acted within the scope of his or her
authority and confirm the award"). The district court correctly confirmed
the award, and consequently, we
ORDER the judgment of the district court AFFIRMED.
Saitta
cc: Hon. Kenneth C. Cory, District Judge
Nathaniel J. Reed, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Ann & Associates, PC
Parker, Nelson & Associates
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A (leo