By the Court, HARDESTY, J.:
Appellant J.E. Dunn Northwest, Inc. (Dunn), performed various preconstruction services for the One Las Vegas condominium project in Las Vegas, Nevada, and recorded a mechanic's lien for this work. Respondent Corus Construction Venture, LLC (Corus
In August 2005, Midbar Condo Development hired Dunn to perform a project feasibility assessment for One Las Vegas, a multimillion-dollar condominium project consisting of two 20-story towers on Las Vegas Boulevard. Dunn reviewed design considerations, coordinated contract documents, developed a construction schedule, and completed various other administrative tasks in preparation for construction.
In December 2005, Midbar hired Dunn to serve as construction manager and contractor for the One Las Vegas project. From December 2005 to March 2006, Dunn performed over $1 million in preconstruction services that included preparing project schedules, coordinating meetings with subcontractors, reviewing subcontractors' and architects' drawings, and other planning-related services.
Midbar obtained a loan from Corus Bank to finance the construction of the project, and Corus Bank recorded its deed of trust on March 17, 2006. Before recording the deed of trust, Nevada Title Company hired a third party to perform an inspection of the property. The inspector reported that power lines had been removed from the subject property and provided photographs that depicted several signs on an adjacent property. The signs were imprinted with the name of an architectural firm, Kobi Karp, which was performing design services for the One Las Vegas project in conjunction with Dunn. The signs were not located on the specific parcel inspected by the third party, and the inspector's report ultimately concluded that no construction activity had occurred on the property as of the date Corus Bank recorded its deed of trust.
During loan negotiations and before approving the release of any funds, Corus Bank performed a due diligence review, after which it approved Dunn as the contractor. Corus Bank negotiated a separate agreement with Dunn, which acknowledged that Dunn had provided, and would continue to provide, construction services. An early version of this agreement contained a subordination provision requiring Dunn to "waive its lien rights and to subordinate its mechanic['s] lien to the Corus Bank deed of trust." Dunn did not agree to this provision and Corus Bank ultimately removed it from the final version of the agreement.
Dunn filed a complaint in district court in October 2008, seeking a declaratory judgment that its mechanic's lien had priority over Corus Bank's deed of trust. Dunn then filed a motion for summary judgment, and Corus Bank filed an opposition to Dunn's motion and a countermotion for summary judgment. The district court denied Dunn's motion, finding that pursuant to NRS 108.225 and NRS 108.22112, Dunn's work must have been visible from a reasonable inspection of the property prior to the date that Corus Bank recorded its deed of trust, and Dunn failed to make that showing.
In March 2009, Corus Bank renewed its motion for summary judgment, arguing that under NRS 108.225, a mechanic's lien takes priority over encumbrances that attach after construction commences. Accordingly, Corus Bank contended that, because "no visible work had been performed on the property and no visible equipment or materials had been furnished to the property" as of the date it recorded its deed of trust, construction had not commenced. Therefore, its deed of trust had priority. Dunn argued in opposition that a genuine issue of material fact existed with regard to whether its work was visible from a reasonable inspection of the property. Alternatively, Dunn claimed that Corus Bank waived the requirement that the work must be visible because, prior to recording its deed of trust, Corus Bank had knowledge that Dunn performed preconstruction services. Dunn also asked for more time for discovery to investigate Corus Bank's knowledge of Dunn's preconstruction work.
The district court granted Corus Bank's renewed motion for summary judgment. The court concluded that "[t]here are no genuine factual issues indicating [that] Dunn provided any visible construction work on the property at the time Corus' deed of trust was recorded." The court further found that, under NRS 108.225, Dunn's waiver argument lacked merit because, even if Corus Bank was aware of Dunn's preconstruction services, "such knowledge would not . . . preclude Corus from relying on the law relative to priority, requiring that a lien claimant, for priority purposes, show visible work of improvement at the time of recordation of an intervening deed of trust." Dunn appeals.
A mechanic's lien has priority over a deed of trust recorded after the commencement of construction. The priority statute, NRS 108.225, states, in pertinent part:
Since 1977, we have recognized that visible, on-site construction is required for mechanics' liens to take a priority position over a subsequently recorded deed of trust.
"This court reviews a district court's grant of summary judgment de novo.'" George L. Brown Ins. v. Star Ins. Co., 126 Nev. ___, ___, 237 P.3d 92, 96 (2010) (quoting Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005)). "Summary judgment is appropriate when the moving party is entitled to judgment as a matter of law and there is no genuine dispute of any material fact." Dictor v. Creative Management Services, 126 Nev. ___, ___, 223 P.3d 332, 334 (2010). We review the facts in the light most favorable to the nonmoving party. George L. Brown Ins., 126 Nev. at ___, 237 P.3d at 96.
NRS 108.225, the lien priority statute, provides that priority attaches after "commencement of construction." NRS 108.22112 defines "commencement of construction" as the date on which:
Dunn maintains that the visibility requirement is ambiguous because the arrow symbol indicating a flush line and the comma at the end of subsection 2 make it unclear whether work performed must be visible for a mechanic's lien to take priority over a deed of trust. We disagree.
When the language of a statute is clear on its face, "this court will not go beyond [the] statute's plain language." Great Basin Water Network v. State Eng'r, 126 Nev. ___, ___, 234 P.3d 912, 918 (2010). However, if a statute is ambiguous, we examine legislative history and interpret the statute "`in light of the policy and the spirit of the law, and the interpretation should avoid absurd results.'" Westpark Owners' Ass'n v. Dist. Ct., 123 Nev. 349, 357, 167 P.3d 421, 427 (2007) (quoting Hunt v. Warden, 111 Nev. 1284, 1285, 903 P.2d 826, 827 (1995)). "Statutory language is ambiguous if it is capable of more than one reasonable interpretation." In re Candelaria, 126 Nev. ___, ___, 245 P.3d 518, 520 (2010).
NRS 0.025(2), which explains that the arrow symbol, like the one in NRS 108.22112, is simply a symbol to indicate a flush line, states:
Dunn maintains that this drafting convention does not apply to NRS 108.22112 because the proposed version of the bill that added NRS 108.22112 did not contain the arrow, and the context of the statute requires an exception. However, the discrepancy between the proposed and final versions is explained by the fact that the arrow symbol was first adopted by the Legislature during the same session in which NRS 108.22112 was enacted. See 2003 Nev. Stat., ch. 367, § 20, at 2094. Regarding the context of the statute, Dunn argues that if we apply the phrase that appears after the arrow symbol to both subsections 1 and 2, the result will be that lienable, preconstruction work under NRS 108.22184 will not have a priority position because it is not visible. However, determining whether work is entitled to a lien is not the same as determining the priority of any such lien. As discussed below, visibility alone determines priority. Therefore, NRS 108.22112 is not an exception to the normal application of the provisions included after the arrow symbol, and the visibility requirement applies to both work performed, including preconstruction services, and materials and equipment furnished to the site.
Dunn also asks us to utilize the "last antecedent rule" of statutory construction to conclude that the language after the arrow symbol applies only to subsection 2 of NRS 108.22112. The last antecedent rule, also known as the doctrine of the last antecedent, dictates that "qualifying words and phrases, . . . where no contrary intention appears, refer solely to the last antecedent." Thompsen v. Hancock, 49 Nev. 336, 341, 245 P. 941, 942 (1926). Using this rule, Dunn argues that the phrase "is visible from a reasonable inspection of the site" that appears after the comma at the end of subsection 2 and after the arrow symbol applies only to the immediately preceding subsection 2 regarding materials furnished. However, "the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one." In re Sehome Park Care Center, Inc., 127 Wn.2d 774, 903 P.2d 443, 447 (1995). Therefore, even if we apply the last antecedent rule as Dunn suggests, its argument would fail because NRS 108.22112's qualifying phrase "is visible from a reasonable inspection of the site" would still apply to both subsections 1 and 2.
Additionally, adopting Dunn's proposed statutory construction of NRS 108.22112 and applying the qualifying phrase after the arrow symbol only to subsection 2 would also lead to an absurd reading of the statute. This court seeks to avoid interpretations that yield "`unreasonable or absurd result[s].'" Great Basin, 126 Nev. at ___, 234 P.3d at 918 (quoting Allstate Insurance Co. v. Fackett, 125 Nev. ___, ___, 206 P.3d 572, 576 (2009)). If we were to interpret the phrase appearing after the arrow symbol as not applying to subsection 1, that provision would read: "`Commencement of construction' means the date on which [w]ork performed." This statutory construction is grammatically incorrect and there is no support for reading the statute in this manner. See Heydenfeldt v. Daney G. & S.M. Co., 10 Nev. 290, 313 (1875) ("[W]e are not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness."). Thus, Dunn appears to be resorting to "`ingenuity to create ambiguity'" that does not exist, see Secretary of State v. Burk, 124 Nev. 56, ___, 188 P.3d 1112, 1121 (2008) (quoting Rothschild v. United States, 179 U.S. 463, 465, 21 S.Ct. 197, 45 L.Ed. 277 (1900)), and we conclude that the meaning of NRS 108.22112 is plain and requires visibility for work performed, including preconstruction services, in
Dunn further argues that the visibility requirement in NRS 108.22112 does not apply to preconstruction services because that statute is incompatible with NRS 108.22184, which defines the type of work entitled to a lien.
We first addressed lien priority among third-party claimants in Aladdin Heating v. Trustees, Central States, 93 Nev. at 260, 563 P.2d at 84. There, we held that "actual on-site" construction was required for a lien to have priority over a deed of trust.
In 2003, the Legislature again revisited NRS Chapter 108 and added NRS 108.22112, which defines "commencement of construction." 2003 Nev. Stat., ch. 427, § 4, at 2587. This definition simply moved the visibility requirement previously set forth in Aladdin and the 1993 version of NRS 108.225 to a new section, NRS 108.22112. The Legislature also added NRS 108.22184, which defines "work" and sets forth the services for which a lien may be claimed. 2003 Nev. Stat., ch. 427, § 23, at 2589-90. The list of such services now includes planning, design, and other related services.
At no point during the development of Nevada's current lien priority statutes did the Legislature dispense with the visibility requirement. Thus, visibility is the linchpin of priority, and nothing in the legislative history suggests that the Legislature intended to change that requirement for any services, including preconstruction work.
Other jurisdictions have reached similar conclusions and have required the distinction between lienable work and priority among lien claimants. In Ketchum, Konkel, et al. v. Heritage Mountain, the court noted that "[t]he distinction between the rights of mechanics against the owner of the property where no priority issue exists and the adjustment of relative priorities of third parties in the property is crucial." 784 P.2d 1217, 1221 (Utah Ct.App.1989). Also, in Williams & Works, Inc. v. Springfield Corp., the Supreme Court of Michigan considered an argument similar to Dunn's regarding whether, in expanding the scope of lienable work, the legislature also intended that such work was entitled to priority. 408 Mich. 732, 293 N.W.2d 304, 310 (1980). The court concluded that "it [is] unreasonable to believe the [Michigan] Legislature intended to indirectly change . . . the traditional and well-established
Public policy also supports maintaining the visibility requirement independently of the statutory scope of lienable work. For example, in Aladdin we noted that if we were to "permit mechanics' liens to . . . relate back to a time long before" any construction on the property was visible, "no prudent businessman would be willing to lend construction money." Aladdin, 93 Nev. at 260, 563 P.2d at 84. This is because the purpose of the visibility requirement is "to inform prospective lenders inspecting the premises that liens had attached." Id. Maintaining the visibility requirement, absent contrary legislative intent, preserves this certainty in construction financing. Thus, we conclude that the visibility requirement of NRS 108.22112 applies to preconstruction services, regardless of the 2003 amendments to NRS 108.22184.
Dunn also argues that a party waives NRS 108.22112's visibility requirement if it has actual knowledge of lienable preconstruction services. Dunn claims that Corus Bank knew of Dunn's lienable work, thus it waived its priority claim. Whether the visibility requirement is waivable is an issue of first impression in Nevada. Based on the plain language of Nevada's priority statutes and the policy reasons for them, we conclude that this requirement is not waivable.
Dunn relies on Kirkwold Construction v. M.G.A. Construction, 513 N.W.2d 241 (Minn. 1994), for the proposition that a party with actual knowledge of lienable preconstruction work waives the visibility requirement. However, that case involved Minnesota's lien priority statute, Minn.Stat. § 514.05(1), which gives a bona fide purchaser or mortgagee priority over mechanics' liens only if they did not have "actual notice" of prior lienable work. Therefore, Kirkwold interpreted a statute specifically addressing notice. Conversely, Nevada's mechanic's lien statutes do not mention notice or provide for priority based on notice. See In re L. Bruce Nybo, Inc., 247 B.R. 294, 300 (Bankr.D.Nev. 2000). If the Legislature intended for notice to affect priority, it could have drafted the statute to reflect such intent. See id. Without such a provision, NRS 108.225 expressly requires commencement of construction alone for priority and "actual, constructive or recorded notice" cannot be substituted for notice through commencement of construction. Id.
This conclusion is congruent with the recognized policy interest in maintaining certainty and predictability in construction financing. In Aladdin, we noted that lenders would be less likely to assume the risk of a construction loan if priority relates back to the date of nonvisible, preconstruction work. 93 Nev. at 260, 563 P.2d at 84; see also Tracy Price Associates v. Hebard, 266 Cal.App.2d 778, 72 Cal.Rptr. 600, 606 (1968) ("To hold that such knowledge constitutes waiver or estoppel would expose lenders to so many unpredictable hazards that construction financing would become extremely difficult."). Thus, it is irrelevant whether Corus Bank knew of Dunn's preconstruction work, or whether Dunn agreed to subordinate its mechanic's lien because Corus Bank's knowledge did not affect its priority position.
Dunn alternatively argues that the work it performed was visible because an architect's sign had been placed at the project site, albeit on an adjacent property, and power lines were removed. These facts, Dunn contends, placed Corus Bank on notice that it should have inquired further as to potential lienable work performed on the site. We disagree.
In Aladdin, we noted that commencement of construction requires "actual on-site construction" and does not include merely "architectural, soil testing, and survey work." 93 Nev. at 260, 563 P.2d at 84. These activities may involve some physical presence on the site, including stakes, monuments, and the like, but this presence is insufficient to provide lenders notice of lienable work entitled to priority. See In re L. Bruce Nybo, Inc., 247 B.R. at 298 (work related to preconstruction activities, such as staking parcel boundaries, does not satisfy the visibility requirement). Other courts have more generally held, and we agree, that preparatory work on a site, such as clearing or grading, does not constitute commencement of construction. See, e.g., Clark v. General Electric Co., 243 Ark. 399, 420 S.W.2d 830, 833-34 (1967). Thus, we conclude that installing business signs and removing power lines do not constitute "actual on-site construction" because such activities are preparatory and are not part of the visible construction project itself. Therefore, Dunn's work was not visible, so its mechanic's lien is junior to Corus Bank's deed of trust.
NRS 108.225 expressly provides that "commencement of construction" is required for lien priority. Because we conclude that "commencement of construction" plainly requires visibility of on-site work in order for a mechanic's lien to take a priority position over a deed of trust and that Dunn's preconstruction services were not visible, its mechanic's lien is junior to Corus Bank's deed of trust. We further conclude that the visibility requirement is not waivable, and, therefore, it is irrelevant whether Corus Bank knew of Dunn's preconstruction work or whether Dunn agreed to subordinate its mechanic's lien because Corus Bank's knowledge did not affect its priority position. Therefore, summary judgment in favor of Corus Bank was appropriate because no genuine issue of material fact existed as to whether construction had commenced prior to the recordation of Corus Bank's deed of trust.
Accordingly, we affirm the district court's summary judgment.
We concur: DOUGLAS, C.J., CHERRY, SAITTA, GIBBONS, PICKERING, and PARRAGUIRRE, JJ.
Aladdin, 93 Nev. at 260 n. 1, 563 P.2d at 84 n. 1; see also 1965 Nev. Stat., ch. 434, § 7, at 1160.
The district court declined to provide Dunn with more time to conduct discovery, determining that the issues identified by Dunn "do not pertain to the question of whether there was actually visible evidence of construction work on the property but, instead, address what understanding Corus would reasonably be expected to have had as to preconstruction services and documents." According to the district court, whether such services performed by Dunn constituted lienable work "does not involve the issue of priority as between Dunn and Corus."
Pursuant to NRCP 56(f), the district court may "grant a continuance when a party opposing a motion for summary judgment is unable to marshal facts in support of its opposition." Aviation Ventures v. Joan Morris, Inc., 121 Nev. 113, 117-18, 110 P.3d 59, 62 (2005). The party must "express[ ] how further discovery will lead to the creation of a genuine issue of material fact." Id. at 118, 110 P.3d at 62. We review a district court's refusal to grant additional time for an abuse of discretion. Id. Here, the district court did not abuse its discretion because, even if Corus Bank had knowledge of Dunn's preconstruction work, there would be no genuine issue of material fact as to whether Dunn's mechanic's lien had priority over the deed of trust because visibility is the threshold inquiry.