FILED 

AUG 0 7 2014 

TRACIE K. LINDEMAN 

CLEBIA 0, aUPRWE 

CHIF DEPW-CLERK 

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; 

HORIZON MINI-STORAGE, LLC, A 

NEVADA LIMITED LIABILITY 

COMPANY; MONTECITO MINISTORAGE PARTNERS, LLC, A 

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 

2Because 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. 3Accordingly, to 

3This holding 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 postjudgment 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. 

6We 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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J. 

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. 

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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