                                           131 Nev., Advance Opinion 10
                      IN THE SUPREME COURT OF THE STATE OF NEVADA


                IN RE: MANHATTAN WEST                      No. 61131
                MECHANIC'S LIEN LITIGATION.

                APCO CONSTRUCTION, A NEVADA
                CORPORATION; ACCURACY GLASS &                   ALE
                MIRROR COMPANY, INC.; BRUIN
                PAINTING CORPORATION;
                                                                SEP 2 4 2015
                BUCHELE, INC.; CACTUS ROSE                             LINDEMAN
                                                                         EME CCG-13RT

                CONSTRUCTION; FAST GLASS, INC.;
                HD SUPPLY WATERWORKS, LP;
                HEINAMAN CONTRACT GLAZING;
                HELIX ELECTRIC OF NEVADA, LLC;
                INTERSTATE PLUMBING & AIR
                CONDITIONING; SWPPP
                COMPLIANCE SOLUTIONS, LLC; AND
                WRG DESIGN, INC.,
                Petitioners,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                CLARK; AND THE HONORABLE
                SUSAN SCANN, DISTRICT JUDGE,
                Respondents,
                   and
                SCOTT FINANCIAL CORPORATION, A
                NORTH DAKOTA CORPORATION;
                AHERN RENTALS, INC.; ARCH
                ALUMINUM AND GLASS CO.; ATLAS
                CONSTRUCTION SUPPLY, INC.;
                BRADLEY J. SCOTT; CABINETEC,
                INC.; CAMCO PACIFIC
                CONSTRUCTION CO., INC.;
                CELLCRETE FIREPROOFING OF
                NEVADA, INC.; CLUB VISTA
                FINANCIAL SERVICES, LLC;
                CONCRETE VISIONS, INC.; CREATIVE
                HOME THEATRE, LLC; CUSTOM
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                   SELECT BILLING, INC.; DAVE
                   PETERSON FRAMING, INC.; E&E
                   FIRE PROTECTION, LLC; EZA, P.C.;
                   FERGUSON FIRE AND FABRICATION,
                   INC.; GEMSTONE DEVELOPMENT
                   WEST, INC.; GRANITE
                   CONSTRUCTION COMPANY; HARSCO
                   CORPORATION; HYDROPRESSURE
                   CLEANING; INQUIPCO; INSULPRO
                   PROJECTS, INC.; JEFF HEIT
                   PLUMBING CO., LLC; JOHN DEERE
                   LANDSCAPE, INC.; LAS VEGAS
                   PIPELINE, LLC; NEVADA PREFAB
                   ENGINEERS; NOORDA SHEET
                   METAL COMPANY; NORTHSTAR
                   CONCRETE, INC.; PAPE MATERIAL
                   HANDLING; PATENT
                   CONSTRUCTION SYSTEMS;
                   PRESSURE GROUT COMPANY;
                   PROFESSIONAL DOOR AND MILL
                   WORKS, LLC; READY MIX, INC.;
                   RENAISSANCE POOLS & SPAS, INC.;
                   REPUBLIC CRANE SERVICE, LLC;
                   STEEL ENGINEERS, INC.; SUNSTATE
                   COMPANIES, INC.; SUPPLY
                   NETWORK, INC.; THARALDSON
                   MOTELS II, INC.; TRI CITY DRYWALL,
                   INC.; UINTAH INVESTMENTS, LLC;
                   AND ZITTING BROTHERS
                   CONSTRUCTION, INC.,
                   Real Parties in Interest.



                               Original petition for writ of mandamus and prohibition
                   challenging a district court order granting summary judgment in a
                   mechanic's lien action.
                               Petition denied.


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                Howard & Howard Attorneys PLLC and Wade B. Gochnour and Gwen
                Rutar Mullins, Las Vegas,
                for Petitioner APCO Construction.

                Sterling Law, LLC, and Beau Sterling, Las Vegas; Peel Brimley LLP and
                Richard L. Peel and Michael T. Gebhart, Henderson,
                for Petitioners Accuracy Glass & Mirror Company, Inc.; Bruin Painting
                Corporation; Buchele, Inc.; Cactus Rose Construction; Fast Glass, Inc.; HD
                Supply Waterworks, LP; Heinaman Contract Glazing; Helix Electric of
                Nevada, LLC; Interstate Plumbing & Air Conditioning; SWPPP
                Compliance Solutions, LLC; and WRG Design, Inc.

                Lionel Sawyer & Collins and A. William Maupin, Las Vegas; Meier &
                Fine, LLC, and Glenn F. Meier and Rachel E. Donn, Las Vegas;
                Hutchinson & Steffen, LLC, and Michael K. Wall, Las Vegas,
                for Real Party in Interest Scott Financial Corporation.

                Kemp, Jones & Coulthard, LLP, and J. Randall Jones, Las Vegas,
                for Real Parties in Interest Bradley J. Scott and Scott Financial
                Corporation.

                Snell & Wilmer, LLP, and Robin E. Perkins, Las Vegas,
                for Real Party in Interest Ahern Rentals, Inc.

                Holley, Driggs, Walch, Puzey & Thompson and Jeffrey R. Albregts, Las
                Vegas,
                for Real Party in Interest Arch Aluminum and Glass Co.

                Tony Ditty, Escondido, California,
                for Real Party in Interest Atlas Construction Supply, Inc.

                Premier Legal Group and R. Christopher Reade, Las Vegas,
                for Real Party in Interest Cellcrete Fireproofing of Nevada, Inc.

                Grant Morris Dodds PLLC and Steven L. Morris, Henderson,
                for Real Party in Interest Camco Pacific Construction Co., Inc.

                Greenberg Traurig, LLP, and Mark E. Ferrario, Tami Cowden, and
                Moorea Katz, Las Vegas,
                for Real Parties in Interest Club Vista Financial Services, LLC; and
                Tharaldson Motels II, Inc.
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                Koch & Scow, LLC, and David R. Koch, Henderson,
                for Real Parties in Interest Creative Home Theatre, LLC; and Renaissance
                Pools & Spas, Inc.

                T. James Truman & Associates and T. James Truman, Las Vegas,
                for Real Parties in Interest Dave Peterson Framing, Inc.; E&E Fire
                Protection, LLC; Noorda Sheet Metal Company; Pressure Grout Company;
                and Professional Door and Mill Works, LLC.

                Williams & Associates and Donald H. Williams, Las Vegas,
                for Real Parties in Interest Eza, P.C.; Harsco Corporation; and Patent
                Construction Systems.

                Fennemore Craig Jones Vargas and David W. Dachelet, Las Vegas,
                for Real Party in Interest Ferguson Fire and Fabrication, Inc.

                Watt, Tieder, Hoffar & Fitzgerald, LLP, and David R. Johnson, Las Vegas,
                for Real Party in Interest Granite Construction Company.

                Dickinson Wright PLLC and Eric Dobberstein, Las Vegas,
                for Real Party in Interest Insulpro Projects, Inc.

                Keith E. Gregory & Associates and Keith E. Gregory, Las Vegas,
                for Real Party in Interest Jeff Heit Plumbing Co., LLC.

                Varricchio Law Firm and Philip T. Varricchio, Las Vegas,
                for Real Parties in Interest John Deere Landscape, Inc.; and Supply
                Network, Inc.

                Smith & Shapiro, LLC, and James E. Shapiro, Henderson,
                for Real Party in Interest Las Vegas Pipeline, LLC.

                Jolley Urga Wirth Woodbury & Little and Martin A. Little, Las Vegas,
                for Real Parties in Interest Nevada Prefab Engineers; Pape Material
                Handling; and Steel Engineers, Inc.

                Pezzillo Lloyd and Jennifer R. Lloyd, Las Vegas,
                for Real Parties in Interest Northstar Concrete, Inc.; and Tri City Drywall,
                Inc.

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                Brian K. Berman, Las Vegas,
                for Real Party in Interest Ready Mix, Inc.

                Law Office of Hayes & Welsh and Garry L. Hayes, Henderson,
                for Real Party in Interest Sunstate Companies, Inc.

                Procopio, Cory, Hargreaves & Savitch, LLP, and Andrew J. Kessler, San
                Diego, California,
                for Real Party in Interest Uintah Investments, LLC.

                Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, and Reuben H.
                Cawley, Las Vegas,
                for Real Party in Interest Zitting Brothers Construction, Inc.

                Cabinetec, Inc.; Concrete Visions, Inc.; Custom Select Billing, Inc.;
                Gemstone Development West, Inc.; Hydropressure Cleaning; Inquipco;
                Republic Crane Service, LLC,
                In Pro Se.




                BEFORE HARDESTY, CA., DOUGLAS and CHERRY, JJ.


                                                 OPINION
                By the Court, HARDESTY, C.J.:
                            In this writ proceeding, we must determine whether a
                subordination agreement that subordinates a lien for original land
                financing to a new construction deed of trust affects the priority of a
                mechanic's lien for work performed after the date of the original loan but
                before the date of the construction deed of trust. Because contractual
                partial subordination differs from complete subordination, we agree that a
                contractual partial subordination by creditors of a common debtor do not
                subordinate a first priority lien to a mechanic's lien. Further, nothing in
                NRS 108.225 changes the priority of a mechanic's lien to a partially
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                subordinated lien recorded before the mechanic's lien became effective.
                Thus, the priority of the mechanic's lien remains junior to the amount
                secured by the original senior lien.
                                PROCEDURAL AND FACTUAL HISTORY
                             Gemstone Apache, LLC (Apache), intended to develop a
                mixed-use property (Manhattan West) in Las Vegas. Real party in
                interest Scott Financial Corporation (SFC) made multiple loans to Apache
                for this purpose. The first three loans, which were recorded in July 2006,
                totaled $38 million (the Mezzanine Deeds of Trust) and financed the
                purchase of the property. In April 2007, petitioner APCO Construction
                (APC0), 1 the contractor hired by Apache, began construction on
                Manhattan West, setting the priority date for mechanic's lien services. In
                May and October of 2007, the Mezzanine Deeds of Trust were amended to
                secure additional funds for the project. 2
                            In early 2008, Gemstone Development West, LLC (GDW),
                purchased Manhattan West from Apache, assuming Apache's loan
                obligations. To obtain financing for construction, GDW borrowed an
                additional $110,000,000 from SFC (the Construction Deed of Trust),
                recording the deed of trust on February 7, 2008. As part of the overall


                       'There are multiple petitioners appearing in this matter, and
                petitioners have filed a joint petition with this court. We collectively refer
                to petitioners as APCO.

                      2Although   APCO frames these amendments as a refinance, the
                parties present no argument regarding whether these amendments served
                to refinance the Mezzanine Deeds of Trust or what effect a refinance
                would have on lien priority, and thus, we do not consider this issue. See
                Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
                1280, 1288 n.38 (2006).

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                transaction, SFC and GDW entered into a subordination agreement
                subordinating the Mezzanine Deeds of Trust to the Construction Deed of
                Trust. SFC indicated that its intent for the subordination agreement was
                for SFC to determine "in what order SFC's debts would be satisfied." The
                subordination agreement did not state whether the subordination was
                complete or partial, nor did it address the priority of any potential
                mechanics' liens.
                              The relationship between APCO and GDW deteriorated.
                APCO stopped work on Manhattan West and filed suit against GDW, SFC,
                and others. SFC and APCO both moved for summary judgment on the
                issue of lien priority. SFC argued that the subordination agreement
                partially subordinated the Mezzanine Deeds of Trust to the Construction
                Deed of Trust, giving the Construction Deed of Trust senior priority for
                $38 million and leaving APCO's mechanics' liens unaffected. APCO
                argued that the subordination agreement completely subordinated the
                Mezzanine Deeds of Trust to the Construction Deed of Trust, prioritizing
                the Mezzanine Deeds of Trust after APCO's mechanics' liens and the
                Construction Deed of Trust. It further argued that NRS 108.225
                precluded the Construction Deed of Trust from taking priority over
                APCO's mechanics' liens.
                              The district• court initially granted summary judgment in
                favor of APCO, but, after SFC filed a motion for reconsideration, the
                district court granted summary judgment in favor of SFC. 3 The district



                      3   APCO argues that the district court erred in reconsidering the
                motion. APCO's argument is without merit because NRCP 54(b) permits
                the district court to revise a judgment that adjudicates the rights of less
                than all the parties until it enters judgment adjudicating the rights of all
                                                                   continued on next page...
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                court determined that the subordination agreement only partially
                subordinated the Mezzanine Deeds of Trust to the Construction Deed of
                Trust and left the mechanics' liens in the second-priority position. APCO
                petitioned for a writ of mandamus 4 to compel the district court to vacate
                its order and recognize APCO's mechanics' liens as holding a first priority.
                                                DISCUSSION
                             "A writ of mandamus is available to compel the performance of
                an act that the law requires as a duty resulting from an office, trust, or
                station or to control an arbitrary or capricious exercise of discretion."   Int'l
                Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
                P.3d 556, 558 (2008) (internal citation omitted); see NRS 34.160. We
                exercise our discretion to entertain this writ petition because an important
                issue of law requires clarification—whether a mechanic's lien takes
                priority over a contractually subordinated debt by creditors of a common
                debtor either because (1) the subordination agreement constitutes a
                complete subordination, or (2) NRS 108.225 (Nevada's mechanic's lien
                statute) precludes the partial subordination of an existing lien.

                ...continued
                the parties. See Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 479, 215
                P.3d 709, 716 (2009). Here, the district court's order determining lien
                priority adjudicated the rights of only a few of the parties.

                      4 1nthe alternative, APCO petitions for a writ of prohibition, arguing
                that the district court did not have authority to rehear the case. We
                conclude, however, that a writ of prohibition is improper here because the
                district court had jurisdiction to hear and determine the motion to
                reconsider pursuant to NRCP 54(b). See Goicoechea v. Fourth Judicial
                Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980) (stating that this
                court will not issue a writ of prohibition "if the court sought to be
                restrained had jurisdiction to hear and determine the matter under
                consideration").


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                            Contractual subordination allows creditors of a common
                debtor to contractually rearrange the priority of their enduring liens or
                debt positions. See Robin Russell, Distinction Between Contractual and
                Equitable Subordination, 2 Tex. Prac. Guide: Fin. Transactions § 10:10
                (Robin Russell & J. Scott Sheehan eds., 2014); see also George A. Nation,
                III, Circuity of Liens Arising From Subordination Agreements: Comforting
                Unanimity No More, 83 B.U. L. Rev, 591, 591-92 (2003) (describing
                subordination). Central to this case is the distinction between complete
                and partial contractual subordination, which differ on their
                rearrangements of the priorities of lienholders.
                            In a complete subordination, the agreement subordinating the
                senior lien to a junior lien effectively also subordinates the senior lien to
                intervening liens.° See George A. Nation, III, Circuity of Liens Arising
                From Subordination Agreements: Comforting Unanimity No More, 83 B.U.
                L. Rev. 591, 593 (2003). Here, for example, the Mezzanine Deeds of Trust
                would simply become junior to the Construction Deed of Trust, which
                would remain junior to the mechanics' liens, thus moving the mechanics'
                liens to first priority. In contrast, partial subordination gives a junior lien


                      °Complete subordination occurs when the effect of a subordination
                agreement subordinates the first-priority lien to the third-priority lien
                but also has the effect of subordinating the first-priority lien to the
                second-priority lien. For example, there are three liens on a property
                with the following priority: lien A for $10,000, lien B for $5,000, and
                lien C for $20,000. Complete subordination would mean that the
                subordination agreement between the holders of lien A and lien C
                resulted in the following priority: lien B for $5,000, lien C for $20,000,
                and then lien A for $10,000. See George A. Nation, III, Circuity of Liens
                Arising From Subordination Agreements: Comforting Unanimity No
                More, 83 B.U. L. Rev. 591, 593 (2003).


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                  priority over a senior lien to the extent that it does not affect the priority
                  of the intervening lien; thus, the junior lien only has priority over the
                  intervening lien in the amount of the senior lien.°           Id. at 593-94;
                  Caterpillar Fin. Servs. Corp. v. Peoples Nat'l Bank, N.A., 710 F.3d 691,
                  693-94 (7th Cir. 2013). In other words, in partial subordination, the
                  priority of liens is contractually rearranged without affecting the position
                  of any intervening lien.     Caterpillar, 710 F.3d at 693-94. Here, the
                  Construction Deed of Trust would partially subordinate the Mezzanine
                  Deeds of Trust, giving the Construction Deed of Trust $38 million in first
                  priority, leaving the mechanics' liens in second priority, and placing the
                  remainder of the Construction Deed of Trust in third priority over the
                  Mezzanine Deeds of Trust.
                              At issue is whether the subordination agreement effected a
                  complete subordination and whether Nevada caselaw and statutes
                  preclude partial subordination.
                  The subordination agreement effected a partial subordination
                              APCO argues that the district court erred when, in granting
                  summary judgment in favor of SFC, it determined that the subordination
                  agreement was intended to create a partial subordination, not a complete

                        °Partial subordination occurs when the effect of a subordination
                  agreement subordinates a first-priority lien to a third-priority lien
                  without affecting the priority of the second lien. For example, using the
                  factual scenario from footnote 4, partial subordination occurs when the
                  holders of lien A and lien C agree to subordinate lien A to lien C. After
                  the agreement, the lien priority would be lien C for $10,000, lien B for
                  $5,000, the remaining amount of lien C ($10,000), and then lien A for
                  $10,000. See George A. Nation, III, Circuity of Liens Arising From
                  Subordination Agreements: Comforting Unanimity No More, 83 B.U. L.
                  Rev. 591, 593-94 (2003).

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                 subordination. We review an order granting summary judgment de novo,
                 viewing all evidence "in a light most favorable to the nonmoving party."
                 Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). We
                 have held that "[s]ummary judgment is appropriate under NRCP 56 when
                 the pleadings, depositions, answers to interrogatories, admissions, and
                 affidavits, if any, that are properly before the court demonstrate that no
                 genuine issue of material fact exists, and the moving party is entitled to
                 judgment as a matter of law." Id. at 731, 121 P.3d at 1031. Additionally,
                 "[w]hen the facts in a case are not in dispute, contract interpretation is a
                 question of law, which this court reviews de novo."           Lehrer McGovern
                 Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1115, 197 P.3d 1032,
                 1041 (2008).
                                Different courts have reached different conclusions about
                 whether a general subordination agreement effects complete or partial
                 subordination. See Caterpillar, 710 F.3d at 693-94; In   IT   Price Waterhouse
                 Ltd., 46 P.3d 408, 410 (Ariz. 2002); see also George A. Nation, III, Circuity
                 of Liens Arising From Subordination Agreements: Comforting Unanimity
                 No More, 83 B.U. L. Rev. 591, 592-93 (2003). The minority view concludes
                 that a general subordination agreement results in complete subordination.
                 See, e.g., AmSouth Bank, N.A. v. J & D Fin. Corp.,       679 So. 2d 695, 698
                 (Ala. 1996). Relying on         Black's Law Dictionary's         definition of
                 "subordination agreement," this view contends that "[13137 definition,
                 'subordination' contemplates a reduction in priority. Nothing in the
                 definition contemplates raising a lower priority lienholder up to the
                 position of the subordinating party."     Id.   Thus, this view holds that
                 lienholders can only step into the shoes of another lienholder when the



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                agreement explicitly indicates that there is a transfer of priority rights.
                Id.
                            In contrast, the United States Court of Appeals for the
                Seventh Circuit adopted the majority approach and held in favor of partial
                subordination when the subordination agreement was silent on the issue.
                Caterpillar, 710 F.3d at 693-94. This approach holds that nonparties are
                unaffected by the subordination agreement and "simply swaps the
                priorities of the parties to the subordination agreement." Id. It reasoned
                that the party agreeing to subordinate its higher-priority lien surely wants
                the subsequent loan to occur so that the debtor would be strengthened, but
                that complete subordination would "drop the subordinating creditor to the
                bottom of the priority ladder," thus benefiting "a nonparty to the
                subordination agreement." Id. Therefore, as a practical matter, the court
                "cfouldin't think why [the subordinating party] would have insisted on
                complete subordination." Id. at 694.
                            We agree with the reasoning in Caterpillar. In the instant
                case, complete subordination would move APCO's mechanics' liens
                (nonparties to the subordination agreement) into the first-priority position
                and leave SFC's liens junior to all mechanics' liens. Partial subordination,
                however, would leave $38,000,000 of the Construction Deed of Trust in
                first priority and the mechanics' liens in the same position they were in
                prior to the subordination agreement. We cannot determine any reason
                SFC would have intended to completely subordinate the Mezzanine Deeds
                of Trust, only for APCO's mechanics' liens to then take the first-priority
                position. Moreover, this aligns with SFC's claimed intent for the
                subordination agreement—that it should be "allowed to freely contract the
                order of payment as between" itself. The subordination agreement neither

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                  stated it intended to create complete subordination nor mentioned the
                  mechanic's lien. Absent this clear intent, we conclude that a common-
                  sense approach weighs in favor of partial subordination.
                  NRS 108.225 does not preclude partial subordination
                               APCO argues that, while parties may contractually
                  subordinate the priorities of their liens, NRS 108.225 does not permit
                  partial subordination, only complete subordination; specifically, APCO
                  asserts that NRS 108.225 prevents SFC from partially subordinating the
                  Mezzanine Deeds of Trust in favor of the Construction Deed of Trust.
                  That statute, which protects the right to payment for those who have
                  worked to improve property, states, in pertinent part, that mechanics' and
                  materialmen's liens are senior to "[a]ny lien, mortgage or other
                  encumbrance which may have attached to the property after the
                  commencement of construction of a work of improvement." NRS
                  108.225(1)(a); see In re Fontainebleau Las Vegas Holdings, LLC, 128 Nev.,
                  Adv. Op. 53, 289 P.3d 1199, 1211 (2012); Hardy Cos., Inc. v. SNMARK,
                  LLC, 126 Nev. 528, 538, 245 P.3d 1149, 1156 (2010). SFC argues that
                  NRS 108.225 does not preclude other lienholders from contracting for a
                  partial subordination with respect to their lien priorities. This court
                  reviews questions of statutory construction de novo.   L Cox Constr. Co. v.
                  CH2 Invs., LLC, 129 Nev., Adv. Op. 14, 296 P.3d 1202, 1203 (2013).
                               The statute gives priority to mechanics' liens over liens that
                  attach after the commencement of the work of improvement. It does not,
                  however, address subordination agreements between other lienholders. 7


                        7 Tobe sure, contractual partial subordination differs from equitable
                  subrogation, which we addressed in In re Fontainebleau Las Vegas
                  Holdings, LLC, 128 Nev., Adv. Op. 53, 289 P.3d 1199, 1209-12 (2012)
                                                                     continued on next page...
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                     This court does not "fill in alleged legislative omissions based on
                     conjecture as to what the [IA] egislature would or should have done."
                     Falcke v. Cnty. of Douglas, 116 Nev. 583, 589, 3 P.3d 661, 665 (2000)
                     (internal quotations omitted). Therefore, we conclude that NRS 108.225
                     does not prohibit negotiations between lienholders with priority over
                     mechanics' liens and those with lesser priority in situations where the
                     mechanics' liens will be left in exactly the same position as if the
                     subordination agreement had never occurred. In other words, the statute
                     does not preclude partial subordination.
                                 Here, when APCO began work on Manhattan West, it did so
                     with notice of SFC's Mezzanine Deeds of Trust and knowledge that its
                     mechanics' liens would be in second priority to those liens. Crucially,
                     nothing about the subordination agreement alters the amount of debt that
                     APCO was junior to, and thus, the subordination agreement does not
                     violate NRS 108.225. To read the statute in a way that would grant APCO
                     first priority even though the subordination agreement did not prejudice


                     ...continued
                     (concluding that NRS 108.225 precludes the application of equitable
                     doctrines that would advance the priority of a junior lienholder above the
                     priority of a mechanic's lien). We note that Fontainebleau's distinguishing
                     factor is that the mechanic's lien claimants there were parties to the
                     subordination agreement and attempted to subordinate their priority
                     positions despite NRS 108.225's constraints.        Id. at 1208. Unlike
                     Fontainebleau, APCO is not a party to the subordination agreement and
                     the subordination agreement has not changed APCO's priority position.
                     Here, the contractual partial subordination arises as a result of a
                     subordination agreement, not equity principles. See, e.g., Bratcher v.
                     Buckner, 109 Cal. Rptr. 2d 534, 53940 (Ct. App. 2001) (court relied on
                     subordination agreement, not equitable principles, "to enforce the
                     objective intent of the parties").

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                   APCO's lien position—or change APCO's status whatsoever—would be an
                   over-reading of the statute.
                                                  CONCLUSION
                               The district court did not improperly determine that the
                   subordination contract effected a partial subordination. Further, NRS
                   108.225 does not preclude parties from contracting for a partial
                   subordination.
                               Accordingly, we deny APCO's petition for a writ of mandamus
                   and prohibition.



                                                                                  C.J.
                                                       Hardesty


                   I concur:



                                                  J.
                   Douglas




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                 CHERRY, J., dissenting
                               I would not entertain this writ at this stage of the proceedings.
                 A short order stating that intervention is unnecessary at this time would
                 suffice
                               I am troubled by the fact that this court previously denied
                 APCO's request for a stay, which would have allowed the district court to
                 conclude this case with a final disposition that could then be appealed to
                 this court.
                               In reviewing the district court's order granting Scott Financial
                 Corporations' motion for summary judgment filed on May 7, 2012, some
                 three years ago, the order states:
                                      IT IS FURTHER ORDERED, ADJUDGED,
                               AND DECREED that SFC's loan of
                               $110,000,000.00 is in first position priority
                               regarding the other claimants in the principal
                               amount of $38,000,000.00. Thereafter, the
                               mechanic lien claimants are in second position and
                               the remainder of SFC's $110,000,000.00 principal
                               amount loan, namely $72,000,000.00 in principal
                               is in third position, and the Original Mezzanine
                               Deeds of Trust along with the post-April 2007
                               Mezzanine Deeds of Trust are in junior priority
                               position to the aforementioned encumbrances.
                                     IT IS FURTHER ORDERED, ADJUDGED
                               AND DECREED a further stay of this litigation is
                               granted pending a petition to the Nevada Supreme
                               Court provided such is timely filed and for which
                               no bond is required.
                               In cases such as this one, where the right to appeal a final
                 disposition is still viable, the best practice would have been to not only
                 deny APCO's motion for a stay, but also to immediately deny APCO's writ
                 as soon as possible without the necessity of extensive appellate
                 proceedings.
SUPREME COURT
        OF
     NEVADA


(01 1447A    e
                            For the above reasons, I would agree the writ should be
                denied, but I worry that in considering the writ, we are sending the wrong
                message to the Nevada Bar concerning pretrial extraordinary writs.'




                      "This is not to say that the published opinion by the majority is not
                an excellent appellate disposition because it is a well-written opinion
                affirming the district court in all respects.

SUPREME COURT
        OF
     NEVADA
                                                     2
(0) 1947A
