ALL AMERICAN REPAIR SERVICES INC NEVADA CORPORATION v. ASTER GEBREKRISTOS AN INDIVIDUAL (2023)

ORDER OF AFFIRMANCE

All American Repair Services, Inc. appeals from a district court order granting respondent's motion for summary judgment in a mechanic's lien matter. Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.

Respondent Aster Gebrekristos hired All American Repair Services, Inc. (AARS) to repair her home in Las Vegas, following a fire. After commencement of the work on the property, Gebrekristos expressed concerns with the quality of AARS’ work, and on September 24, 2020, requested that AARS cease work on the property. Documents in the record reflect that AARS did no further work on the property after that date. Following several unsuccessful attempts at negotiation, AARS filed two lien notices related to work performed on the property on February 10, 2021, and later filed a complaint against Gebrekristos in district court seeking to recover under the liens.

In the underlying case, Gebrekristos filed a motion for summary judgment, arguing, among other things, that summary judgment was warranted as AARS had failed to properly perfect its lien under NRS 108.226(1), as it failed to file a notice of lien within 90 days of stopping work on the property. Following full briefing and a hearing on the motion, the district court entered an order granting summary judgment on those grounds, finding that AARS had filed its notices of lien approximately 139 days after ceasing work on the project, and had therefore failed to timely perfect its lien. AARS now appeals, arguing that the district court improperly interpreted NRS 108.226(1) in granting summary judgment against it.¹

This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. Similarly, this court reviews questions of statutory interpretation de novo. Pawlik v. Shyang-Fenn Deng, 134 Nev. 83, 85, 412 P.3d 68, 70 (2018).

Our goal in construing statutes is to effectuate the Legislature's intent. Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513 (2000). When interpreting a statute, we look first to its plain language and consider the statute's “provisions as a whole so as to read them in a way that would not render words or phrases superfluous or make a provision nugatory.” S. Nev. Homebuilders Ass'n v. Clark Cty., 121 Nev. 446, 449, 117 P.3d 171, 173 (2005) (internal quotation marks omitted).

As relevant here, NRS 108.226(1) provides that:

To perfect a lien, a lien claimant must record a notice of lien ․ [w]ithin 90 days after the date on which the latest of the following occurs: (1) [t]he completion of the work of improvement; (2) [t]he last delivery of material or furnishing of equipment by the lien claimant for the work of improvement; or (3) [t]he last performance of work by the lien claimant for the work of improvement.

On appeal, AARS argues that the district court erred when it determined that AARS failed to perfect its lien under NRS 108.226(1)(a)(3). Specifically, AARS argues that the statute's plain language, requiring lien claimants to record the notice of lien within “90 days after the date on which the latest of the following occurs,” NRS 108.226(1)(a) (emphasis added), necessarily means that subsection 1, “completion of the work of improvement,” as the last occurring event, would be the only condition able to trigger NRS 108.226(1)’s 90-day requirement.

But AARS’ interpretation is not persuasive, as it ignores the plain language of the statute, and would render the language in NRS 108.226(1)(a)(2) and (3) superfluous. Indeed, the plain language of NRS 108.226(1)(a) is disjunctive, meaning that the latest of any one of the three subsections would be sufficient to trigger the statute's 90-day requirement. See Coast Hotels & Casinos, Inc. v. Nev. State Labor Comm'n, 117 Nev. 835, 841, 34 P.3d 546, 550 (2001). Here, the parties do not dispute that AARS ceased its work on the property on September 24, 2020, and did not file its notices of lien until February 10, 2021, 139 days later—49 days after the 90-day requirement in NRS 108.226(1)(a). And because the plain language of NRS 108.226(1)(a) states that the lien claimant must file its notice of lien within 90 days, we conclude that the district court did not err when it found that AARS failed to timely perfect its lien under NRS 108.226(1)(a)(3). See Washoe Cty. v. Otto, 128 Nev. 424, 432, 282 P.3d 719, 725 (2012) (recognizing that the word “must” generally imposes a mandatory requirement in a statute).² Accordingly, we order the judgment of the district court affirmed, and lift the temporary stay entered by this court on July 6, 2022.

It is so ORDERED.³

Gibbons, C.J.

Westbrook, J.

FOOTNOTES

1.   This court denied Gebrekristos’ motion for extension of time to file an answering brief on November 29, 2022. Although this court may treat Gebrekristos’ failure to timely file an answer in this matter as a confession of error, see NRAP 31(d)(2), we decline to do so here. See, e.g., Huckabay Props., Inc. v. NC Auto Parts, LLC, 130 Nev. 196, 203, 322 P.3d 429, 433 (2014) (explaining the preference for deciding cases on their merits).

2.   To the extent that AARS relies upon Tonopah Lumber Co. v. Nev. Amusement Co., 30 Nev. 445, 97 P. 636 (1908), to support its argument, we conclude that this case is inapposite, as nothing in that opinion supports a conclusion that this court should deviate from the plain language of NRS 108.226. Moreover, we note that the situation presented in this case is factually distinguishable from the one at issue in Tonopah, as the supreme court's holding in that case relied upon its conclusion that the work performed was a continuation of the parties’ original contract, and therefore held that the statutory time limit to record a notice of lien did not begin to run until the date construction completed. Id. at 455-57, 97 P. at 638-39.

3.   Insofar as appellant raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.The Honorable Bonnie A. Bulla did not participate in the decision of this matter.