Wilmington Trust FSB v. A1 Concrete Cutting & Demolition, LLC
Wilmington Trust FSB v. A1 Concrete Cutting & Demolition, LLC
Opinion of the Court
By the Court,
The United States Bankruptcy Court for the Southern District of Florida has certified three questions to this court relating to the viability of equitable subrogation and the enforceability of contractual subordination against mechanic’s lien claimants under Nevada’s mechanic’s and materialman’s lien statutes, codified in NRS Chapter 108.
The second question focuses on whether the doctrine of equitable subrogation may be applied against mechanic’s lien claimants, such that a mortgage incurred after the commencement of work on a project will succeed to the senior priority position of a preexisting lien satisfied by the mortgagee, despite the existence of intervening mechanics’ liens. Although this court has adopted mortgage subrogation principles, see American Sterling Bank v. Johnny Mgmt. LV, 126 Nev. 423, 245 P.3d 535 (2010); Houston v. Bank of America, 119 Nev. 485, 488, 78 P.3d 71, 73 (2003); see also Restatement (Third) of Prop.: Mortgages § 7.6 cmt. a (1997), we have never addressed whether equitable subrogation applies in the mechanic’s lien context. NRS 108.225 is the controlling authority in Nevada regarding the priority of mechanics’ liens. It expressly provides that every other mortgage or encumbrance imposed after the commencement of construction of a work of improvement is subordinate and subject to the mechanics’ liens regardless of the recording dates of the notices of liens. Because principles of equity cannot trump an express statutory provision, we conclude that equitable subrogation does not apply against mechanic’s lien claimants.
The third question asks this court to determine whether contractual subordination agreements executed by mechanic’s lien claimants are enforceable. Pursuant to NRS 108.2453 and NRS 108.2457, we conclude that subordination agreements purporting to subordinate mechanics’ liens prospectively are not enforceable. However, mechanic’s lien claimants may waive their statutorily protected rights when the precise requirements of NRS 108.2457 are met.
This court’s review is limited to the facts provided by the certification order from the United States District Court for the Southern District of Florida and the complaint attached thereto, and we answer the questions of law posed to us based on those facts. In re Fontainebleau Las Vegas Holdings, 127 Nev. 941, 955, 267 P.3d 786, 795 (2011).
Debtor Fontainebleau Las Vegas Holdings, LLC, sought to construct and develop a $2.8 billion hotel-casino resort with gaming, lodging, convention, and entertainment amenities in Las Vegas, Nevada (the Project).
Appellant Wilmington Trust FSB succeeded Bank of America as administrative agent for the lenders. In 2009, Wilmington Trust filed an adversary proceeding in the bankruptcy court against re
DISCUSSION
The decision to consider certified questions is within this court’s discretion. See NRAP 5(a) (stating that this court may answer certified questions). In determining whether to exercise its discretion to consider certified questions, this court looks to whether the “answers may ‘be determinative’ of part of the federal case, there is no controlling [Nevada] precedent, and the answer will help settle important questions of law.” Volvo Cars of North America v. Ricci, 122 Nev. 746, 750-51, 137 P.3d 1161, 1164 (2006) (quoting Ventura Group v. Ventura Port Dist., 16 P.3d 717, 719 (Cal. 2001)). This court is also constrained “ ‘to resolving legal issues presented in the parties’ pleadings.’ ” Orion Portfolio Servs. 2 v. Clark County, 126 Nev. 397, 401, 245 P.3d 527, 530 (2010) (quoting Terracon Consultants v. Mandalay Resort, 125 Nev. 66, 72, 206 P.3d 81, 85 (2009)).
Because the first question presented by the district court is largely factual and the discovery process is in its infancy, we decline to answer it, except to the extent that its answer is implicated in the answer to question two. See Badillo v. American Brands, Inc., 117 Nev. 34, 38, 16 P.3d 435, 437 (2001) (declining to answer a certified question).
Do Nevada’s mechanic’s and materialman’s lien statutes prohibit the use of equitable subrogation?
The second question concerns whether the doctrine of equitable subrogation can apply to allow a subsequent lender to claim the senior priority status of an original loan that the subsequent lender satisfied when contractors and suppliers hold intervening mechanics’ liens.
We have previously applied equitable subrogation in the realm of mortgages in Houston v. Bank of America, 119 Nev. 485, 488, 78 P.3d 71, 73 (2003).
a mortgagee will be subrogated when it pays the entire loan of another as long as the mortgagee “was promised repayment and reasonably expected to receive a security interest in the real estate with the priority of the mortgage being discharged, and if subrogation will not materially prejudice the holders of intervening interests in the real estate.”
Id. at 490, 78 P.3d at 74 (quoting Restatement (Third) of Prop.: Mortgages § 7.6(a)(4) (1997)); see Nelson & Whitman, Real Estate Finance Law § 10.6, at 27 (5th ed. 2007).
While we have previously applied equitable subrogation principles, we have not addressed whether the doctrine displaces the priority plainly and specifically afforded to mechanic’s lien claimants in NRS 108.225. See Skyrme v. Occidental Mill and Mining Co., 8 Nev. 219, 232 (1873) (“a mechanic’s lien is different from a mortgage executed by the consent of the parties”). In resolving the novel question presented to us by the bankruptcy court, we will independently review whether equitable subrogation applies under the framework of mechanics’ liens. American Sterling, 126 Nev. at 428, 245 P.3d at 538; see Hicks, 125 P.3d at 455. Before we resolve whether the doctrine applies under the circumstances presented in this case, we will examine the purpose and history of mechanics’ liens.
A mechanic’s lien is a statutory creature established to help ensure payment for work or materials provided for construction or improvements on land. Lehrer McGovern Bovis v. Bullock Insulation, 124 Nev. 1102, 1115, 197 P.3d 1032, 1041 (2008); see Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 136 (1891); California Commercial v. Amedeo Vegas I, 119 Nev. 143, 146, 67 P.3d 328, 331 (2003); Brunzell v. Lawyers Title, 101 Nev. 395, 396-97, 705 P.2d 642, 644 (1985); Schofield v. Copeland Lumber, 101 Nev. 83, 84, 692 P.2d 519, 520 (1985); see also Black’s Law Dictionary 1008 (9th ed. 2009) (defining a mechanic’s lien as “[a] statutory lien that secures payment for labor or materials supplied in improving, repairing, or maintaining real or personal property, such as a building, an automobile, or the like”). We have previously held “ ‘that the mechanic’s lien statutes are remedial in character and should be liberally construed.’ ” Lehrer McGovern, 124 Nev. at 1115, 197 P.3d at 1041 (quoting Las Vegas Plywood v. D & D Enterprises, 98 Nev. 378, 380, 649 P.2d 1367, 1368 (1982)); see Hardy Companies, Inc. v. SNMARK, LLC, 126 Nev.
The concept of a mechanic’s lien originated in ancient Roman law. Edward H. Cushman, The Proposed Uniform Mechanics’ Lien Law, 80 U. Pa. L. Rev. 1083, 1083 (1932). It was later embraced in France by the Code Napoleon and in other countries that have adopted civil law as the basis of their jurisprudence, including Belgium and Spain. Moore-Mansfield Const. Co. v. Indianapolis, N. C. &T. Ry. Co., 101 N.E. 296, 301 (Ind. 1913); Samuel L. Phillips, A Treatise on the Law of Mechanics’ Liens on Real and Personal Property 9-10 (2d ed. 1883). The first mechanic’s lien law in America involving real property was enacted by Maryland in 1791.
NRS 108.225 is the controlling authority in Nevada regarding the priority of mechanics’ liens. Amended in 2003, NRS 108.225 affirmatively gives mechanic’s lien claimants priority over all other liens, mortgages, and encumbrances that attach after the commencement of a work of improvement:
1. [Mechanics’] liens ... are preferred to:
(a) Any lien, mortgage or other encumbrance which may have attached to the property after the commencement of construction of a work of improvement.
*576 (b) Any lien, mortgage or other encumbrance of which the lien claimant had no notice and which was unrecorded against the property at the commencement of construction of a work of improvement.
2. Every mortgage or encumbrance imposed upon, or conveyance made of, property affected by [mechanics’] liens . . . after the commencement of construction of a work of improvement are subordinate and subject to the [mechanics’] liens . . . regardless of the date of recording the notices of liens.
Despite the plain and unambiguous language of the statute, Wilmington Trust requests that this court apply equitable subrogation, as it did in Houston v. Bank of America, 119 Nev. 485, 488, 78 P.3d 71, 73 (2003), in the mechanic’s lien context.
Are subordination agreements executed by mechanic’s lien claimants enforceable?
The third question asks us to determine whether contractual subordination agreements defining or altering the rights and priorities of creditors’ liens are enforceable when they are executed by mechanic’s lien claimants. We conclude that subordination agreements that purport to subordinate the liens prospectively are unenforceable but that non-prospective subordination may be pursued through compliance with the requirements of NRS 108.2457. Accordingly, in appropriate circumstances, contracts can be structured to achieve subordination.
Our decision is guided by the statutory scheme. NRS 108.2453(1) provides that “[ejxcept as otherwise provided in NRS 108.221 to 108.246, inclusive, a person may not waive or modify a right, obligation or liability set forth in the provisions of NRS 108.221 to 108.246, inclusive.” See also NRS 108.2453(2)(a) (“A condition, stipulation or provision in a contract or other agreement for the improvement of property or for the construction, alteration
5. The waiver and release given by any lien claimant is unenforceable unless it is in the following forms in the following circumstances:
(a) Where the lien claimant is required to execute a waiver and release in exchange for or to induce the payment of a progress billing and the lien claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, ....
(b) Where the lien claimant has been paid in full or a part of the amount provided for in the progress billing, ....
(c) Where the lien claimant is required to execute a waiver and release in exchange for or to induce payment of a final billing and the lien claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, ....
(d) Where the lien claimant has been paid the final billing. . . .
See also NRS 108.2457(1) (allowing for lien waivers only when the lien claimant: “(a) Executes and delivers a waiver and release that is signed by the lien claimant or the lien claimant’s authorized agent in the form set forth in this section; and (b) In the case of a conditional waiver and release, receives payment of the amount identified in the conditional waiver and release”).
Concerning the interplay between NRS 108.2453 and NRS 108.2457, the parties take divergent positions. Wilmington Trust contends that the Legislature, by failing to explicitly proscribe subordination, did not intend to prevent lenders from seeking to protect their interest through subordination. It asserts that subordination agreements executed by mechanic’s lien claimants that purport to subordinate their liens to a new mortgage are enforceable when they are not prospective. Respondents argue that NRS 108.2453 and NRS 108.2457 unambiguously prohibit the enforcement of contractual provisions requiring lien claimants to subordinate their interests to others, including lenders. Because these
Whether the statutes provide for prospective waivers is not clear from the plain language of the statutes; thus, we must look to the legislative history. Ambiguous statutes are interpreted in accordance with the Legislature’s intent. Hardy, 126 Nev. at 533, 245 P.3d at 1154. The legislative history behind the enactments of NRS 108.2453 and NRS 108.2457
However, non-prospective subordination agreements may be enforceable, as neither NRS 108.2453 nor NRS 108.2457 completely prohibit waiver of or impairment to the right to a mechanic’s lien after it arises. Therefore, non-prospective subordination agreements may be enforced as long as they meet the statutory requirements of NRS 108.2457. Accordingly, while prospective subordi
We therefore answer the certified questions as set forth above.
The three certified questions were presented to us as follows:
1. Whether the Senior Lenders’ mortgage is senior to the mechanics’ liens by virtue of the legal doctrine of equitable subrogation and/or loan replacement and modification, inasmuch as loan proceeds secured by Bank of America, as administrative agent for the Senior Lenders, were*569 used to completely satisfy a senior mortgage which was rerecorded prior to the commencement of any work on the Project, with the expectation that the new loan would be secured by a lien with the same priority as the loan being satisfied?
2. Whether NRS [Chapter 108] prohibits the use of equitable subro-gation as found in the Restatement [(Third)] of [Prop.:] Mortgages § 7.6, or the use of replacement and modification as found in the Restatement [(Third)] of [Prop.:] Mortgages § 7.3, to allow a mortgage to “step into the shoes of” a pre-existing lien (which was fully satisfied by the mortgagee) when such pre-existing lien was recorded prior to the commencement of any work or improvement giving rise to a statutory lien under NRS [Chapter 108]?
3. Whether subordination agreements executed by certain mechanics and materialman lien claimants, purporting to subordinate their liens to a new mortgage, are enforceable?
The Project is situated on approximately 24.4 acres at the sites of the former El Rancho Hotel and Algiers Hotel on the north end of the Las Vegas Strip. The Project is approximately 70 percent complete.
The parties to the loan commitments are currently in litigation in the United States District Court for the Southern District of Florida in a proceeding unrelated to the adversary proceeding in which the certified questions arise.
Fontainebleau sold substantially all of its assets to Icahn Nevada Gaming Acquisition, LLC. The sale was approved by the United States District Court for the Southern District of Florida in January 2010. The following month, Fontainebleau closed the sale transaction with Icahn, transferring its assets free and clear of all liens and encumbrances, with all liens and encumbrances from the Project attaching to the sale proceeds.
The Las Vegas Chapter of the Associated General Contractors, the Nevada Chapter of the Associated General Contractors, and the Nevada Association of Mechanical Contractors filed an amici brief supporting respondents. The Nevada Bankers Association and the Nevada Land Title Association filed am-icus briefs supporting Wilmington Trust.
We also decline to address whether this court should adopt Restatement (Third) of Prop.: Mortgages § 7.3 (1997).
This court has recognized the doctrine of equitable subrogation in a variety of situations. See, e.g., AT&T Technologies, Inc. v. Reid, 109 Nev. 592, 855 P.2d 533 (1993) (workers’ compensation); Federal Ins. Co. v. Toiyabe Supply, 82 Nev. 14, 409 P.2d 623 (1966) (negotiable instruments); Globe Indem. v. Peterson-McCaslin, 72 Nev. 282, 303 P.2d 414 (1956) (surety); Laffranchini v. Clark, 39 Nev. 48, 153 P. 250 (1915) (mortgages).
There is some indication that Pennsylvania implemented a mechanic’s lien law relating to shipbuilders in 1784. Neil v. Kinney, 11 Ohio St. 58, 66 (Ohio 1860).
Other western states, including Idaho, Montana, Oregon, Utah, and Wyoming, also enacted similar mechanic’s lien legislation before being recognized as states. In re GVR Ltd. Co., Inc., 695 P.2d 1240, 1241 (Idaho 1985); Merrigan v. English, 22 P. 454, 456 (Mont. 1889); Auld v. Starbard, 173 P. 664, 666 (Or. 1918); Doane v. Clinton, 2 Utah 417, 419 (1877); Weyerhaeuser Co. v. Walters, 707 P.2d 733, 739 (Wyo. 1985) (Rose, J., dissenting).
Although Nevada’s mechanic’s lien statutes have been extensively revised since 1861, they were originally “borrowed from California.” Hunter v. Truckee Lodge, 14 Nev. 24, 26 (1879).
Promulgation of a uniform mechanics’ lien act was first attempted in 1925 and resulted in the Uniform Mechanics’ Lien Law.” Sara E. Dysart, Comment, USLTA: Article 5 “Construction Liens” Analyzed in Light of Current Texas Law on Mechanics’ and Materialmen’s Liens, 12 St. Mary’s L.J. 113, 116 n.17 (1980). However, only one state—Florida—adopted it. Geiser v. Permacrete, Inc., 90 So. 2d 610, 612 (Fla. 1956).
Wilmington Trust and amici Nevada Bankers Association and Nevada Land Title Association assert that this court should follow other jurisdictions that employ equitable subrogation in the realm of mechanics’ liens. See Lamb Excavation v. Chase Manhattan Mortg., 95 P.3d 542, 543-46 (Ariz. Ct. App. 2004); Peterman-Donnelly Eng. & Con. Corp. v. First Nat. Bank, 408 P.2d 841, 846 (Ariz. Ct. App. 1965); Parker v. Tout, 279 P. 431, 432 (Cal. 1929); Detroit Steel Products Co. v. Hudes, 151 N.E.2d 136, 139 (Ill. App. Ct. 1958); Houston Lumber Co. v. Skaggs, 613 P.2d 416, 417-18 (N.M. 1980); Rock River Lumber v. Universal Mortg. Etc., 262 N.W.2d 114, 119-20 (Wis. 1978); Bank of Bamboo v. Prothero, 255 N.W. 126, 128 (Wis. 1934). “However, every state seems to have a different version of the law with different requirements, different affected parties, and different beneficiaries.” Ethan Glass, Old Statutes Never Die . . . Nor Do They Fade Away: A Proposal for Modernizing Mechanics’ Lien Law by Federal Action, 27 Ohio N.U. L. Rev. 67, 96 (2000). Because of the diversity of mechanic’s lien laws across the country, caselaw from other states “should be approached with caution.” Independent Trust v. Stan Miller, Inc., 796 P.2d 483, 487 (Colo. 1990); see Nickel Mine Brook v. Joseph E. Sakal, 585 A.2d 1210, 1213 (Conn. 1991); Woolridge v. Torgrimson, 229 N.W. 805, 805 (N.D. 1930). Having considered our statutory scheme and the purpose behind our mechanic’s lien statutes, we decline to adopt the cases from other jurisdictions that apply equitable subro-gation in circumstances surrounding mechanics’ liens because our lien laws are exclusive to this state. Unlike the apparent trend in other courts, we are not persuaded that equitable power contravenes express statutory language. Furthermore, Wilmington Trust had ample means to minimize its financial risk through the proper channels of contractual subordination. See Ex Parte Lawson, 6 So. 3d 7, 15-16 (Ala. 2008).
“[I]n 2003, the Legislature amended NRS Chapter 108 to prohibit lien waivers unless such waivers comply with the statutory requirements outlined in NRS 108.2453 and NRS 108.2457.” Lehrer McGovern Boris v. Bullock Insulation, 124 Nev. 1102, 1115 n.39, 197 P.3d 1032, 1041 n.39 (2008); see 2003 Nev. Stat., ch. 427, §§ 25-26, at 2590-95.
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OLDCASTLE GLASS, INC., dba OLDCASTLE GLASS WRIGHT CITY OLSON PRECAST COMPANY ORECO DUCT SYSTEMS, INC. OSSIS IRON WORKS P&S METALS PACIFIC COAST STEEL, INC. PACIFIC INSULATION COMPANY PACIFIC STAIR CO. PAHOR MECHANICAL CONTRACTORS, INC. PAPÉ MATERIAL HANDLING, INC., aka PAPÉ MATERIAL HOLDING, dba PAPÉ RENTS PAR ELECTRICAL CONTRACTORS, INC. PARAMOUNT MANAGEMENT ENTERPRISES, LTD. PARAMOUNT SCAFFOLD, INC. PARTITION SPECIALTIES, INC. PAUL BEBBLE & ASSOCIATES, INC. PDM STEEL SERVICE CENTERS, INC. PENHALL COMPANY PERFORMANCE CONTRACTING, INC. POTTER ROEMER POWELL CABINET & FIXTURE CO. PREMIER STEEL, INC. PRIMARY STEEL, INC. PRIME CONTRACTING, INC., dba PRIME GRADING & PAVING PRIME FABRICATION & SUPPLY QED, INC. QTS LOGISTICS, INC., dba QUALITY TRANSPORTATION SERVICES OF NEVADA, INC. QUALITY CABINET AND FIXTURE COMPANY QUALITY TRANSPORTATION SERVICES OF NEVADA, INC. QUICK CRETE PRODUCTS CORP. RAM CONSTRUCTION SERVICES OF MICHIGAN, INC. RAMON FERNANDEZ, AS ADMINISTRATOR OF THE ESTATE OF ANA FERNANDEZ RAUL ESCOBEDO RC WHITE CON SULTING, INC. READY MIX, INC., dba READY MIX CONCRETE RED MOUNTAIN MACHINERY COMPANY RELIABLE STEEL, INC. REPUBLIC CRANE, LLC RJF INTERNATIONAL CORP. ROADSAFE TRAFFIC SYSTEMS, INC., F/K/A NES TRAFFIC SAFETY LP ROCKWAY PRECAST, INC. RONCELLI, INC. RSC EQUIPMENT RENTAL, INC. SAFE ELECTRONICS, INC. SAFEWORKS LLC SC STEEL, INC. SIERRA GLASS & MIRROR, INC. SILVER STATE MARBLE, LLC SILVERADO ASSOCIATES, LLC SMALLEY & COMPANY SMITH PIPE & STEEL COMPANY (Which Will Do Business in California as CAZ STEEL COMPANY) SMK, INC. SOUTHERN NEVADA PAVING, INC. SOUTHWEST IRON WORKS, LLC SQUIRES LUMBER COMPANY STARLITE CONSTRUCTION, INC., dba SHAWMUT DESIGN & CONSTRUCTION STEEL ENGINEERS, INC. STEEL STRUCTURES, INC. STEELMAN PARTNERS, LLP STERLING CORPORATE CUSTOM ELEVATOR INTERIORS STETSON ELECTRIC, INC. STINGER WELDING, INC. STONE CON NECTION, LLC, dba SAMFET STRIPING SOLUTIONS, INC. SUMMIT EXCAVATION, INC. SUMMIT SAND & GRAVEL, INC. SUNBELT RENTALS, INC. SUNSTATE EQUIPMENT CO., LLC SUPERIOR TILE & MARBLE, INC. SYRACUSE CASTINGS WEST CORP. T. NICKOLAS CO. TECHNICOAT MANAGEMENT, INC. THE GLIDDEN COMPANY, dba ICI PAINTS THE PENTA BUILDING GROUP, LLC THE SHERWIN-WILLIAMS COMPANY THE SOUTHWEST CIRCLE GROUP, INC. THE WINROC CORPORATION (NEVADA) THYSSEN ELEVATOR CORPORATION THYSSENKRUPP SAFWAY, INC., dba SAFWAY SERVICES INC. (LV) THYSSENKRUPP SAFWAY, INC. TMCX NEVADA, LLC TOMARCO CONTRACTOR SPECIALTIES, INC. TOTTEN TUBES, INC. TRACTEL, INC. TRACY & RYDER LANDSCAPE, INC. TRENCH PLATE RENTAL CO. TRI-POWER GROUP, INC. ULMA FORM-WORKS, INC. UNION ERECTORS, LLC UNITED RENTALS GULF, LLC UNITED RENTALS NORTHWEST, INC. UNIVERSAL PIPING, INC. VALLEYCREST LANDSCAPE DEVELOPMENT, INC. VENTURA MARBLE, LLC VFC, INC. W&W STEEL, LLC OF NEVADA W.R. GRACE & CO.-CONN., dba GRACE CONSTRUCTION PRODUCTS WACO INTERNATIONAL (WEST), INC., dba WACO SCAFFOLDING & EQUIPMENT WALNUT INVESTMENT CO., LLC, dba ACOUSTICAL MATERIAL SERV ICES WARD & HOWES ASSOCIATES, LTD. WASHOUT SYSTEMS, LLC WATER FX, LLC WELLS CARGO, INC. WHITE CAP CONSTRUCTION SUPPLY, INC. WILLIAMS FURNACE CO. WINTER COMPOSITES, LLC YOUNG ELECTRIC SIGN COMPANY YWS ARCHITECTS, LLC ZETIAN SYSTEMS, INC. Z-GLASS, INC., dba Z WALL INC. Z-GLASS, INC. and JMB CAPITAL PARTNERS MASTER FUND LLP, as Assignee of All Claims Held by Assignor Lien ADERHOLDT SPECIALTY COMPANY, INC., AMI HOSPITALITY, LLC, aka ARCHITECTURAL MATERIALS INCORPORATED, BOMBARD ELECTRIC, LLC, BOMBARD MECHANICAL, LLC, COLASANTI SPECIALTY SERVICES, INC., DESERT FIRE PROTECTION, PEREGRINE INSTALLATION, CO., and WARNER ENTERPRISES, INC., dba SUN VALLEY ELECTRIC SUPPLY CO.
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