Simmons Self-Storage v. Rib Roof, Inc. , 2014 NV 57 ( 2014 )

130 Nev., Advance Opinion 57
IN THE SUPREME COURT OF THE STATE OF NEVADA
SIMMONS SELF-STORAGE No. 59210
PARTNERS, LLC, A NEVADA LIMITED
LIABILITY COMPANY; ANTHEM
MINI-STORAGE, LLC, A NEVADA
LIMITED LIABILITY COMPANY; FILED
HORIZON MINI-STORAGE, LLC, A AUG 0 7 2014
NEVADA LIMITED LIABILITY
TRACIE K. LINDEMAN
COMPANY; MONTECITO MINI- CLEBIA 0, aUPRWE
STORAGE PARTNERS, LLC, A CHIF DEPW-CLERK
NEVADA LIMITED LIABILITY
COMPANY; COLONIAL BANK, A
SUBSIDIARY OF THE COLONIAL
BANCGROUP, INC., A DELAWARE
CORPORATION; WESTAR
DEVELOPMENT CORPORATION
D/B/A WESTAR CONSTRUCTION, A
NEVADA CORPORATION;
CONTINENTAL CASUALTY
COMPANY, A DELAWARE
CORPORATION; WESTERN SURETY
COMPANY; LAKE MEAD PROPERTY;
SILVER CREEK I, LLC; SAFECO
INSURANCE COMPANY OF AMERICA;
STARR STORAGE SYSTEMS, LLC;
AND TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA;
Appellants,
vs.
RIB ROOF, INC., A CALIFORNIA
CORPORATION,
Respondent.
Appeal from a final judgment in a mechanic's lien action.
Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
Affirmed in part, reversed in part, and remanded.
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Shumway Van & Hansen and Scott A. Knight and Michael Van, Las
Vegas,
for Appellants.
Snell & Wilmer, LLP, and Leon F. Mead, II, and Kelly H. Dove, Las
Vegas,
for Respondent.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, DOUGLAS, J.:
This opinion addresses a dispute regarding the validity of
materialmen's liens under NRS Chapter 108 against six properties and
the effect of surety bonds posted to release the liens on four of those
properties. Specifically, we consider whether, to establish a lien on a
property or improvements thereon under NRS 108.222, a materialman
must prove merely that materials were delivered for use on or
incorporation into the property or improvements thereon; or, instead,
must demonstrate that the materials were actually used for the property
or improvements thereon. We conclude that a materialman has a lien
upon a property and any improvements thereon for which he supplied
materials, in the amount of the unpaid balance due for those materials.
Because the district court's finding that respondent supplied the steel at
issue for the six properties is supported by substantial evidence, we hold
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that respondent established a materialman's lien on each of those
properties for the unpaid balance due on the steel delivered.'
As to the judgment and surety bonds posted for four of the
properties, we conclude that the district court erred by ordering the sale of
all six properties. A mechanic's lien is directed at a specific property,
requiring the district court to determine the total appropriate charge
attributable to that property before ordering its sale. Moreover, because a
surety bond replaces a property as security for the lien, thefl property
cannot be sold where a surety bond was posted; instead, the lien judgment
should be satisfied from the surety bond. Accordingly, we affirm in part
and reverse in part the district court's order, and we remand this matter
for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Respondent Rib Roof, Inc., a manufacturer and supplier of
steel products, supplied steel for projects on the Anthem, Horizon, Lake
Mead, Montecito, Silver Creek, and Simmons properties. Appellant
Westar Construction, the general contractor for all six projects,
subcontracted with Southwest Steel to furnish and install steel products
for the projects. Southwest then contracted with respondent to meet its
obligations to Westar.
'This opinion uses the terms "materialman's lien" and "mechanic's
lien" interchangeably as both refer to statutory rights in a property or any
improvement thereon provided to a lien claimant. See MRS 108.22132;
MRS 108.222.
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Before delivery, respondent provided notices of intent to
furnish materials to Southwest, Westar, each project's owners, and other
related parties. The notice for the Lake Mead property contained a
provision indicating that the person signing that notice, respondent's
bookkeeper Trish Cartwright, could bind respondent in future instruments
relating to respondent's right of lien. That notice lacked an authorizing
signature from one of respondent's officers. Respondent then shipped the
steel products to the particular job sites using bills of lading. Each bill of
lading contained three copies: the first copy was signed by the shipping
manager after he loaded the steel onto the truck for shipment; the second
copy was signed by the truck driver; and the third copy was signed by the
consignee upon delivery. Nineteen of the eighty bills of lading at issue
lacked consignee signatures. Verne Moser, respondent's CFO and
corporate secretary, acknowledged that where consignee signatures were
missing, he was not certain that the materials were delivered to the bill of
lading's destination address. Appellants did not question respondent's
notices of intent to furnish materials or delivery of steel before the liens
were recorded, and they presented no evidence that the steel used in the
six projects came from another supplier.
Southwest made no payment for the steel furnished for the
Lake Mead property but partially paid respondent for the steel furnished
for the other five properties. Southwest officer Tom Carroll acknowledged
that respondent was owed approximately $1,000,000. Despite only
partially paying respondent, Carroll sent Moser an email requesting
several lien releases. Moser directed Cartwright to prepare the requested
lien release forms. Cartwright's job duties included accounting,
bookkeeping, evaluating lien release requests, and preparing lien release
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forms. Cartwright knew that she lacked authority to sign the lien
releases; respondent's company policy granted that authority only to
officers. Nevertheless, on December 15, 2004, Cartwright signed
unconditional waiver and lien release forms for the Lake Mead and Silver
Creek properties.
Respondent subsequently perfected its mechanics' liens on the
six properties, providing the required statutory notices and recording its
liens. During that process, appellants did not seek a district court
determination that, under NRS 108.2275, the liens noticed were frivolous,
made without reasonable cause, or excessive in amount. Respondent then
filed a complaint for foreclosure against each property and, pursuant to
NRS 108.239(1)-(2), filed notices of us pendens and published notices of
foreclosure. Thereafter, surety bonds totaling 1.5 times the value of
respondent's mechanics' liens for the Lake Mead, Silver Creek, Anthem,
and Horizon properties were posted and recorded in compliance with NRS
108.2415(1). As a result, respondent amended its complaint to dismiss its
lien foreclosure claims against those four properties, replacing them with
claims against the sureties and principals on the respective surety bonds.
After a bench trial, the district court issued its final judgment
concluding that proving materials were delivered to a job site creates a
presumption that those materials were used for the property or an
improvement thereon, and that this presumption could be rebutted by
showing that the materials were not used in the construction or
improvements. After finding that respondent delivered the steel at issue
to the job sites for the six projects and that appellants failed to rebut the
presumption this delivery created, the district court concluded that
respondent established liens on the six properties. The district court also
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determined that respondent substantially complied with NRS Chapter
108's requirements to perfect and execute those liens, and that the lien
waivers were ineffective because Cartwright lacked authority to bind
respondent.
In determining respondent's award, the district court
calculated the amount of the mechanic's lien for each property, awarding
pre- and post-judgment interest on those amounts. The district court also
awarded $129,667 in attorney fees and $26,541.81 in costs to be charged
jointly against all properties. The district court then ordered that, to the
extent that the lien release bonds were insufficient to pay the respective
sums due, the six properties were to be sold to satisfy the judgment.
Thereafter, the district court ordered the sale of all six properties without
determining the total appropriate charge attributable to each property or
demonstrating that each surety bond was insufficient to pay the sum due
on its respective property. This appeal followed.
DISCUSSION
Lien rights
"A mechanic's lien is a statutory creature" designed "to provide
• contractors secured payment for their work and materials" because they
are generally in a vulnerable position. In re Fontainebleau Las Vegas
Holdings, L.L.C., 128 Nev. , , 289 P.3d 1199, 1210 (2012). To
effectuate that purpose, we have held that these "statutes are remedial in
character and should be liberally construed." Id. (internal quotation
marks omitted).
We review questions of statutory interpretation de novo, see
Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. , 302 P.3d 1108,
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1114 (2013), and we construe unambiguous statutory language according
to its plain meaning unless doing so would provide an absurd result. Cal.
Commercial Enters. v. Amedeo Vegas I, Inc., 119 Nev. 143, 145, 67 P.3d
328, 330 (2003). Additionally, this court interprets "provisions within a
common statutory scheme 'harmoniously with one another in accordance
with the general purpose of those statutes' to avoid unreasonable or
absurd results and give effect to the Legislature's intent. S. Nev.
Homebuilders Ass'n v. Clark Cnty., 121 Nev. 446, 449, 117 P.3d 171, 173
(2005) (quoting Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134,
1136 (2001)).
As a preliminary matter, appellants argue that Opaco Lumber
& Realty Co. v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959), controls. In
Opaco, we concluded that a materialman only has a lien for materials
proved either to have been delivered to the building site or to have gone
into the structure. Id. at 316, 340 P.2d at 97. Respondent contends that
the Legislature's enactment of NRS 108.222 in 1965 and its subsequent
amendments supersede Opaco's holding. To determine the effect of NRS
108.222 on our decision in Opaco, we must construe the statute's
provisions. 2
2 Because the acts herein occurred before October 1, 2005, the
effective date of the 2005 amendments to NRS Chapter 108, we interpret
the 2003 version of NRS Chapter 108. See 2005 Nev. Stat., ch. 428, at
1892-1918; S.B. 343, 73d Leg. (Nev. 2005); 2003 Nev. Stat., ch. 427, at
2587-2620; S.B. 206, 72d Leg. (Nev. 2003). Unless otherwise stated, all
further references in this opinion to NRS Chapter 108 are to the 2003
enactment.
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The parties dispute the plain meaning of NRS 108.222, which
states that ".. . a lien claimant has a lien upon the property and any
improvements for which the work, materials and equipment were
furnished," in the amount of any unpaid balance of the agreed upon price.
Reading MRS 108.22144's definition of "[m]aterial[s]" into NRS 108.222,
appellants assert that a lien right only exists when a lien claimant proves
that the materials were "used" for the property or an improvement
thereon. Respondent avoids the definition of "[m]aterial[s]," instead
advocating for a liberal construction of "furnish[ I" requiring only delivery.
In construing NRS 108.222, we begin with the term
"furnish[ I." Furnish means "[ -t] o supply, provide, or equip, for
accomplishment of a particular purpose." Black's Law Dictionary 675 (6th
ed. 1990). "[Flurnish[ I" therefore encapsulates a variety of situations,
including one where a materialman delivers materials for a property or
improvement thereon to a subcontractor. Notably, neither this definition
nor NRS 108.222 requires materials to be delivered to a specific location,
such as the work site. The absence of such a requirement comports with
NRS Chapter 108's remedial purpose by protecting claimants from the
possibility that lien rights could be circumvented by having materials
delivered to secondary locations, such as preparatory or storage sites.
As defined in NRS 108.22144, "[m]aterial' means appliances,
equipment, machinery and substances affixed, used, consumed or
incorporated in the improvement of property or the construction,
alteration or repair of any improvement, property or work of
improvement." Appellants incorporate this definition into NRS 108.222
and argue that supplied materials must be "used" in an improvement
before a materialman is entitled to a mechanic's lien. Appellants'
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interpretation of NRS 108.222 incorporating NRS 108.22144's plain
meaning is unsustainable because it leads to an absurd result.
Specifically, reading NRS 108.22144 into NRS 108.222 is problematic
because one cannot furnish "materials" for a property or improvement
thereon that were already used for that property or improvement. To
avoid that absurd result, we effectuate the Legislature's intent to protect
lien claimants, Fontainebleau, 128 Nev. at , 289 P.3d at 1210, and
construe NRS 108.222 to encompass materials used or to be used for a
property or improvement thereon. This interpretation provides broader
protection for materialmen and is consistent with the 2005 amendments to
NRS 108.22144, which added the phrase "used or to be" used to the
definition of "[m]aterial." 2005 Nev. Stat., ch. 428, § 8, at 1897; see also In
re Estate of Thomas, 116 Nev. 492, 495, 998 P.2d 560, 562 (2000) (noting
that an amendment to a statute can be persuasive evidence of what the
Legislature intended in the previous statute).
We therefore hold that under NRS 108.222, a materialman
has a lien upon a property and any improvements thereon for which he
supplied materials. A materialman does not need to prove that the
materials that he supplied were used or incorporated into the property or
improvements; rather, he must prove that they were supplied for use on or
incorporation into the property or improvements thereon. 3 Accordingly, to
3 Thisholding in no way detracts from NRS Chapter 108's other
requirements to perfect and execute a lien. Recognizing the district court's
diligence in examining our sister state courts' split on this issue, we
decline to rely on their precedent in reaching our decision because
Nevada's mechanic's lien statutes contain unique language.
Fontainebleau, 128 Nev. at , 289 P.3d at 1211.
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the extent that Opaco is inconsistent with this construction, we conclude
that it has been superseded by the Legislature's enactment of, and
subsequent amendments to, the mechanic's lien statutes. See generally
Jacobson v. Estate of Clayton, 121 Nev. 518, 119 P.3d 132 (2005)
(determining that a legislative amendment superseded a previous and
inconsistent decision by this court).
Supplied materials
With this holding in mind, we review the district court's
finding that respondent supplied steel for the six properties and projects
at issue. A district court's findings must be supported by substantial
evidence. See Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238,
955 P.2d 661, 664 (1998). "Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion." Id.
(internal quotation marks omitted). "[Where conflicting evidence exists,
all favorable inferences must be drawn towards the prevailing party." Id.
We conclude that the district court's finding that respondent
delivered the steel at issue is supported by substantial evidence. While
nineteen of the eighty bills of lading lacked consignee signatures, they
contained two other signatures from the shipping manager and truck
driver. And, although Moser admitted that he was uncertain that the
nineteen orders lacking consignee signatures were delivered to the proper
addresses, appellants never objected to respondent's lien notices. Finally,
each project used the type of steel that respondent supplied, and Carroll
acknowledged that respondent was owed approximately $1,000,000 for
materials it provided. Construing the conflicting evidence in favor of
respondent as the prevailing party, a reasonable mind might accept the
available evidence as adequate to support the district court's conclusion.
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Based on the foregoing, we affirm the district court's decision
that respondent satisfied NRS 108.222's requirements and established
liens on the six properties.
Waiver
Having detet mined that respondent established a valid
mechanic's lien for each of the six properties, we now consider appellants'
waiver argument. NRS 108.2457(1) provides specific guidelines for
waivers and releases, stating in pertinent part:
Any written consent given by a lien claimant that
waives or limits his lien rights is unenforceable
unless the lien claimant:
(a) Executes and delivers a waiver and
release that is signed by the lien claimant or his
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.
Based on these provisions, appellants assert that respondent waived its
liens on the Lake Mead and Silver Creek properties because Cartwright
was respondent's authorized agent and executed unconditional waiver and
lien release forms for those properties per NRS 108.2457(1)(a).
Respondent replies that Cartwright lacked authority to bind respondent
when signing the lien release forms.
The document at issue is alleged to be an unconditional
waiver, eliminating NRS 108.2457(1)(4's applicability. Therefore, unless
the waiver at issue was signed and delivered by the lien claimant or its
authorized agent, the waiver was unenforceable. See NRS 108.2457(1)(a).
Because delivery is not at issue, we only consider whether Cartwright was
authorized to bind respondent.
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Generally, the existence of an agency is a question of fact. N.
Nev. Mobile Home Brokers v. Penrod, 96 Nev. 394, 397, 610 P.2d 724, 726
(1980). Accordingly, this court will uphold the district court's agency
determination as long as it is "not clearly erroneous" and "supported by
substantial evidence." Sowers v. Forest Hills Subdivision, 129 Nev. ,
, 294 P.3d 427, 432 (2013).
"To bind a principal, an agent must have actual
authority.... or apparent authority." Dixon v. Thatcher, 103 Nev. 414,
417, 742 P.2d 1029, 1031 (1987). Although we have discussed actual
authority in the past, we have never expressly defined it. We now adopt
the Restatement's definition. "An agent acts with actual authority when,
at the time of taking action that has legal consequences for the principal,
the agent reasonably believes, in accordance with the principal's
manifestations to the agent, that the principal wishes the agent so to act."
Restatement (Third) of Agency § 2.01 (2006). When examining whether
actual authority exists, we focus on an agent's reasonable belief. Id. § 2.02
& cmt. e ("Whether an agent's belief is reasonable is determined from the
viewpoint of a reasonable person in the agent's situation under all of the
circumstances of which the agent has notice.").
Here, Cartwright admitted that she lacked authority to
execute the lien release forms. Her limited job duties validate this
admission. Although Cartwright's signature on the Lake Mead notice of
intention to furnish materials purported to make her signature binding for
all matters related to respondent's liens for the Lake Mead property, the
notice lacked an appropriate authorizing signature. Additionally, while
Moser directed Cartwright to prepare the lien release forms, nothing in
his email suggested that Cartwright should or could sign them. Thus,
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substantial evidence supports the district court's finding that Cartwright
lacked actual authority because she had no reasonable basis for believing
that respondent authorized her to sign the release forms.
"Apparent authority is 'that authority which a principal holds
his agent out as possessing or permits him to exercise or to represent
himself as possessing, under such circumstances as to estop the principal
from denying its existence." Dixon, 103 Nev. at 417, 742 P.2d at 1031
(quoting Myers v. Jones, 99 Nev. 91, 93, 657 P.2d 1163, 1164 (1983)). As
stated in Ellis v. Nelson:
[Ti here can be reliance only upon what the
principal himself has said or done, or at least said
or done through some other and authorized agent.
The acts of the agent in question can not be relied
upon as alone enough to support [this theory]. If
his acts are relied upon[,] there must also be
evidence of the principal's knowledge and
acquiescence in them. Moreover, ... the reliance
must have been a reasonable one. . . .
68 Nev. 410, 419, 233 P.2d 1072, 1076 (1951) (internal quotation marks
omitted).
Appellants offer no evidence that respondent held Cartwright
out as having authority to certify the lien release forms. Therefore, under
Ellis, appellants must show that they reasonably relied on Cartwright's
acts, and that respondent knew of and acquiesced to those acts.
Appellants arguably could have relied on two of Cartwright's acts: her
providing them with the notice of intention to furnish materials that
purportedly gave her authority to bind respondent, but was signed only by
herself, and her subsequent execution of the two lien release forms.
However, even assuming appellants reasonably relied on these acts, they
offered no evidence or argument that respondent knew of or acquiesced to
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the acts. Thus, substantial evidence also supports the district court's
finding that Cartwright lacked apparent authority.
Accordingly, Cartwright was not an authorized agent under
NRS 108.2457(1)(a) and could not have released the liens for the Lake
Mead and Silver Creek properties on respondent's behalf. We therefore
affirm this portion of the district court's decision.
Surety bonds
Appellants argue that the district court erred by ordering the
sale of the Lake Mead, Silver Creek, Anthem, and Horizon properties.
Specifically, appellants claim that the posting of surety bonds for the four
properties in compliance with NRS Chapter 108 released each property's
mechanic's lien. Respondent contends that the district court ordered the
sale of the four properties to satisfy the judgment only if the bonds were
insufficient. 4
Under NRS 108.2413, "[a] lien claimant's lien rights or notice
of lien may be released upon the posting of a surety bond in the manner
provided in NRS 108.2415 to 108.2425, inclusive." "To obtain the release
of a lien for which notice of lien has been recorded against the property,
the principal and a surety must execute a surety bond in an amount equal
to 1.5 times the lienable amount in the notice of lien. ." NRS
108.2415(1). "Subject to the provisions of NRS 108.2425, the recording
and service of the surety bond pursuant to ... [NRS 108.2415(1)] releases
4A11 references to NRS Chapter 108 in this section addressing
appellants' surety bonds refer to the 2005 enactment in effect when the
bonds were filed.
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the property described in the surety bond from the lien and the surety
bond shall be deemed to replace the property as security for the lien."
NRS 108.2415(6)(a).
As the district court recognized in its order, appellants
properly posted surety bonds for the Lake Mead, Silver Creek, Anthem,
and Horizon properties, releasing the liens on these properties. NRS
108.2415(6). Respondent did not challenge the validity of the surety
bonds, and thus, each surety bond replaced its corresponding property as
security for the lien. Id. This means that a judgment awarded to
respondent for one of those four properties would not be against the
property, but against the respective surety, up to the amount of the bond,
and against the principal for any amounts in excess of the bond amount.
MRS 108.2421(6); MRS 108.2423(1). The total judgment amount includes
the lienable amount, plus costs, attorney fees, and interest under NRS
108.237. See NRS 108.2421(6).
For a property not released by a surety bond, MRS 108.239(10)
provides that, upon determining the lien amounts owed on that property,
a district court must order the sale of the property to satisfy all amounts
awarded to a lien claimant. Amounts awarded to a prevailing lien
claimant in such a case include the lienable amount due, interest, attorney
fees, and costs. NRS 108.237. However, "a property subject to a
mechanic's lien should not be responsible for the improvement costs of
another property. . . . [A]pportionment must be adjudicated on the merits
to determine the appropriate charge attributable to each individual
property." Pickett v. Comanche Constr., Inc., 108 Nev. 422, 430, 836 P.2d
42, 47 (1992). In other words, a district court cannot order the sale of a
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property to satisfy a lien on a separate property or charges associated with
that lien per NRS 108.237.
Despite the statutory lien releases for the Lake Mead, Silver
Creek, Anthem, and Horizon properties, the district court ordered these
properties, along with the Montecito and Simmons properties, to be sold in
satisfaction of the total judgment. In doing so, the district court erred for
the following reasons. First, the district court failed to determine the total
appropriate charge attributable to each individual property, Pickett, 108
Nev. at 430, 836 P.2d at 47, making it impossible to determine whether
the applicable bonds or property sales would satisfy those judgments.
Second, the district court ordered the sale of the Lake Mead, Silver Creek,
Anthem, and Horizon properties despite the fact that surety bonds had
been posted for these properties, releasing their respective liens.° We
therefore reverse the district court's decision as to these issues.
On remand, the district court must calculate the appropriate
charge attributable to each property based on the principal, pre- and post-
judgment interest, and apportioned shares of attorney fees and costs. The
district court must then charge the Montecito and Simmons properties
their respective amounts of the judgment, and charge the four surety
bonds their respective amounts.° The district court may then order the
°The district court properly ordered the sale of the Montecito and
Simmons properties because no surety bond released their respective
liens. Still, the district court must charge the Montecito and Simmons
properties their respective amounts of the judgment.
6 We note that appellants listed a number of issues in their opening
brief without substantively addressing them. Because appellants failed to
provide us with relevant authority and cogent arguments on those issues,
continued on next page . . .
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Montecito and Simmons properties sold, and enter judgment against the
sureties on their respective bonds for the other four properties. Only upon
showing that an individual surety bond is insufficient in relation to its
respective charge can the district court take further action against that
bond's principal to satisfy that judgment.
Based on the foregoing analysis, we affirm in part, reverse in
part, and remand this matter to the district court for further proceedings
consistent with this opinion.
J.
Douglas
We concur:
J.
Hardesty
. . . continued
we decline to address them. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987).
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