Before the Court en banc (Justice Pickering recused). Opinion by Chief Justice Cherry.
In this action, the Court answered two of three questions certified by the United States Bankruptcy Court for the Southern District of Florida related to equitable subrogation and prospective contractual subrogation against mechanic’s lien claimants. The Court first determined that equitable subrogation does not apply against mechanic’s lien claimants because NRS 108.225 conclusively provides that mechanic’s liens will attain priority over any lien, mortgage, or encumbrance that attaches after commencement of construction. The Court determined that this conclusion comports with the Nevada Legislature’s express intent to provide a payment scheme for those who provide work and improvements to land. The Court next determined that mechanic’s lien claimants cannot execute prospective subordination agreements. To reach this answer, the Court examined NRS 108.2453 and NRS 108.2457 and determined that these relevant statutory provisions are ambiguous. Accordingly, the Court looked to legislative history and determined that the Nevada Legislature intended to prevent prospective lien waivers. However, the Court further held that neither NRS 108.2453 nor NRS 108.2457 prohibit non-prospective waivers whereby a mechanic’s lien claimant waives the right to priority after that right arises. The remaining question concerned an issue of fact that the Court refused to consider because the pending Florida case is in the early stages of discovery. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
