249 P.3d 501
Nev.2011Background
- Dunn performed over $1 million in preconstruction services for One Las Vegas, including scheduling, subcontractor coordination, and design review.
- Corus Bank financed the project and recorded a deed of trust on March 17, 2006, securing its loan.
- Prior to the deed of trust, a third-party inspection noted signs on an adjacent property and removal of power lines, with no on-site construction visible.
- Dunn recorded a mechanic's lien on September 8, 2008, seeking priority over Corus Bank's deed of trust.
- The district court denied Dunn's summary-judgment motion and later Corus Bank's renewed motion; the Nevada Supreme Court affirmed the grant of summary judgment for Corus Bank.
- Core issue: whether visibility requirements for on-site work (including preconstruction services) are necessary for lien priority over a preexisting deed of trust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is visibility required for both work performed and materials/equipment furnished? | Dunn argues visibility applies to preconstruction work as lienable under 108.22112. | Corus Bank contends visibility is the rule for priority, including preconstruction work. | Yes; visibility is required for both work performed and materials/equipment. |
| Did 2003 amendments to NRS Chapter 108 eliminate visibility for preconstruction work? | Dunn contends the amendments broaden lienable work, excusing visibility for preconstruction services. | Corus Bank argues visibility remains required for priority regardless of broader lienable definitions. | No; amendments did not remove visibility as the priority requirement. |
| Does lender knowledge of lienable preconstruction work waive the visibility requirement? | Dunn claims Corus Bank's actual knowledge of preconstruction work waives the requirement. | Corus Bank argues knowledge does not affect priority under NRS 108.225. | No; visibility may not be waived by knowledge. |
| Do signs and removal of power lines constitute visible on-site construction? | Dunn asserts these actions indicate visible construction at the site. | Corus Bank contends such preparatory activities are not on-site construction. | No; preparatory acts like signs and power-line removal are not visible on-site construction. |
Key Cases Cited
- Aladdin Heating v. Trustees, Central States, 93 Nev. 257, 563 P.2d 82 (Nev. 1977) (on-site construction required for priority over later encumbrances)
- Ketchum, Konkel, et al. v. Heritage Mountain, 784 P.2d 1217 (Utah Ct. App. 1989) (distinction between lienable rights and priority among lien claimants)
- Williams & Works, Inc. v. Springfield Corp., 408 Mich. 732, 293 N.W.2d 304 (Mich. 1980) (legislative expansion of lienable work does not imply priority)
- Tracy Price Associates v. Hebard, 266 Cal. App. 2d 778, 72 Cal. Rptr. 600 (Cal. App. 1968) (constructive/notice considerations in lien priority)