applying the last antecedent rule to both contracts and statutes
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- applying the last antecedent rule to both contracts and statutes
Written by the judges who cited it.
The opinion
FOR PUBLICATION
Nov 20 2013, 10:07 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY A. MANGES LESA C. DUVALL
DAVID E. BAILEY STEPHANIE L. BLOOMER
Fort Wayne, Indiana KRISTIN D. CALDWELL
Duvall Bloomer & Caldwell, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THE CITY OF FORT WAYNE, )
)
Appellant/Petitioner, )
)
vs. ) No. 02A04-1306-CC-283
)
CONSOLIDATED ELECTRICAL )
DISTRIBUTORS, INC. d/b/a ALL-PHASE )
ELECTRIC SUPPLY CO., )
)
Appellee/Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Nancy Eshcoff Boyer, Judge
Cause No. 02D01-1204-CC-507
November 20, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
This case arises from a light-installation project on Courthouse Green, a park
owned by the city of Fort Wayne (“the City”). Consolidated Electrical Distributors, Inc.,
otherwise known as All-Phase Electrical Supply Co. (“All-Phase”), was a subcontractor
on the project and supplied thousands of dollars’ worth of materials. Though the City
paid the general contractor, the general contractor never paid All-Phase.
All-Phase served notice of its unpaid subcontractor’s claim on the mayor of Fort
Wayne and filed suit against the City, seeking payment. Both parties moved for
summary judgment. At issue was All-Phase’s compliance with the notice requirements
of Indiana Code section 36-1-12-12, which provides a right of recovery to an unpaid
subcontractor. The City argued that All-Phase was not entitled to payment because
notice was not given within sixty days of the date All-Phase last provided materials and
served improperly on the mayor, rather than the parks department. The trial court
disagreed and granted summary judgment for All-Phase.
When read in conjunction with relevant statutory provisions, we conclude that
Section 36-1-12-12 allowed All-Phase to serve notice of its unpaid subcontractor’s claim
on the mayor of Fort Wayne. We also find that All-Phase provided timely notice of its
claim. Finding that summary judgment was properly granted for All-Phase, we affirm.
Facts and Procedural History
In November 2010, the Courthouse Green project was awarded to a construction
company called Lights & Signals, Inc. (“LSI”). The contract for the project was worth
$35,990. All-Phase was a subcontractor on the project and supplied $24,050.71 worth of
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materials to LSI. Though the City paid LSI ninety-five percent of the contract price, LSI
never paid All-Phase. LSI ultimately stopped doing business and declared bankruptcy.
In April 2011, All-Phase sent notice of LSI’s nonpayment to the mayor of Fort
Wayne, Thomas C. Henry. An attorney for the City responded to the notice and advised
All-Phase that the City had paid LSI the full contract price, minus a small amount in
retainage. The City declined to pay All-Phase any amounts owed.
All-Phase filed suit against the City and issued requests for admissions. In its
response, the City made the following admission:
REQUEST NO. 4: Admit that during the period from on or about
December 14, 2010, through February 7, 2011, ALL-PHASE supplied
$24,050.71 worth of materials to LSI for construction of the Project on the
City’s Real Estate.
RESPONSE: Admit.
Appellant’s App. p. 82 (emphasis added). The City also admitted that it received All-
Phase’s notice of claim on April 6, 2011. Id.
Both parties filed summary-judgment motions. At issue was All-Phase’s
compliance with the notice requirements of Indiana Code section 36-1-12-12, which
provides a right of recovery to an unpaid subcontractor. All-Phase’s designated evidence
included the affidavit of its Credit Manager, Jay Orchard. In his affidavit, Orchard
confirmed that All-Phase provided materials to LSI from December 14, 2010, through
February 7, 2011. In paragraph 8 of his affidavit, he also confirmed that notice of All-
Phase’s claim was sent to the mayor on April 6, 2011, “which was 58 days after [All-
Phase] supplied the last of the materials for the project.” Id. at 60. The City moved to
strike paragraph 8, but the trial court denied the City’s motion.
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After a hearing, the trial court granted summary judgment for All-Phase. The City
now appeals.
Discussion and Decision
On appeal, the City contends that the trial court erred by granting summary
judgment for All-Phase. The City argues that All-Phase improperly served notice of its
claim on the mayor of Fort Wayne. The City also claims that All-Phase gave untimely
notice of its claim.
Summary judgment is only appropriate when the moving party affirmatively
shows that there are no genuine issues of material fact with regard to a particular issue or
claim. See Ind. Trial Rule 56(C); Holiday Hospitality Franchising, Inc. v. AMCO Ins.
Co., 983 N.E.2d 574, 577 (Ind. 2013) (citing Town of Avon v. W. Cent. Conservancy
Dist., 957 N.E.2d 598, 602 (Ind. 2011)). The non-moving party then bears the burden of
producing designated evidence showing the existence of a genuine issue of material fact.
Holiday, 983 N.E.2d at 577.
“An appellate court reviews these cases through the same lens, and we view all
designated evidence and reasonable inferences in a light most favorable to the non-
moving party; any doubts are resolved against the moving party.” Id. We will affirm a
trial court’s grant of summary judgment on any theory supported by the record. Id.
(citing Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012)).
When the facts are not disputed, reversal is only appropriate if the trial court incorrectly
applied the law to those facts. Id.
I. Notice Properly Served
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The City first claims that All-Phase improperly served notice of its claim on the
mayor of Fort Wayne. All-Phase argues that the relevant statutory provisions allow it to
serve notice on the mayor. All-Phase’s argument is based on its reading of the provisions
in Title 36 of the Indiana Code.
Indiana Code section 36-1-12-12 provides a right of recovery to an unpaid
subcontractor. However, in order for a subcontractor to receive payment, the
subcontractor “must file a claim with the board not later than sixty (60) days after that
person performed the last labor, furnished the last material, or performed the last service .
. . .” Ind. Code § 36-1-12-12(b) (emphasis added). According to the definitions section
of the chapter, “‘board’ means the board or officer of a political subdivision or an agency
having the power to award contracts for public work.” Ind. Code § 36-1-12-1.2(1)
(emphasis added).
A “political subdivision” is a municipal corporation or special taxing district. Ind.
Code § 36-1-2-13.1 Elsewhere in Title 36, Article 1, “municipal corporation” is defined
as, among other things, a unit. Ind. Code § 36-1-2-10. “Unit,” in turn, means a county,
municipality, or township. Ind. Code § 36-1-2-23. Finally, a “municipality” is defined as
a city or town. Ind. Code § 36-1-2-11.
Synthesizing Title 36’s definitions of these terms, All-Phase contends that the City
is a “municipality, which is a unit, which is a municipal corporation, which is a political
subdivision.” Appellee’s Br. p. 12. And to follow All-Phase’s logic, because notice must
be served on the board, defined in Section 36-1-12-1.2(1) as an “officer of a political
1
Section 36-1-2-1 states that “the definitions in this chapter apply throughout this title.”
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subdivision,” All-Phase properly served the mayor, an officer of the political subdivision
of Fort Wayne.
In response, the City argues that the final phrase in Section 36-1-12-1.2(1)—
“having the power to award contracts for public work,” applies to all three entities named
in the section: the board, officer of a political subdivision, and an agency. The City
argues that the mayor did not have the power to award this public-works contract—only
the park board did.2 But this interpretation conflicts with longstanding rules of statutory
construction.
“To get at the thought or meaning expressed in a statute, a contract, or a
constitution, the first resort, in all cases, is to the natural signification of the words, in the
order of grammatical arrangement in which the framers of the instrument have placed
them.” FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1176 (Ind. Ct. App. 2012),
(citations omitted), reh’g denied, trans. denied. “As a matter of strict grammatical
construction, the descriptive words in a phrase should, in the absence of punctuation, be
referred to their nearest antecedent, and had the intent been, by means of punctuation, to
bring out a meaning which would refer these qualifying words to more than their
immediate antecedent, a comma should have been inserted after said word.” Id. (citation
omitted). This is sometimes called the last-antecedent rule.
Section 36-1-12-1.2(1) reads: “‘Board’ means the board or officer of a political
subdivision or an agency having the power to award contracts for public work.”
Applying the last-antecedent rule to the Section, it is clear that the phrase “having the
2
The City’s argument hinges on language not found in the statute; specifically the power to
award the contract at issue. See Appellee’s Reply Br. p. 4. But we need not address the City’s addition
to the statute; as we explain below, their interpretation of the section fails.
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power to award contracts for public work,” modifies “an agency,” the phrase immediately
preceding it. For this reason, the City’s argument fails, and we conclude that All-Phase
properly served notice of its claim on the mayor of Fort Wayne.
II. Notice Timely Served
The City also claims that All-Phase failed to give timely notice of its claim. The
trial court concluded that as a result of the City’s admission, it was undisputed that All-
Phase provided materials through February 7, 2011, making All-Phase’s notice timely.
See Appellant’s App. p. 12.
At issue is the following admission made by the City:
REQUEST NO. 4: Admit that during the period from on or about
December 14, 2010, through February 7, 2011, ALL-PHASE supplied
$24,050.71 worth of materials to LSI for construction of the Project on the
City’s Real Estate.
RESPONSE: Admit.
Id. at 82 (emphasis added). The City also admitted that it received All-Phase’s notice of
claim on April 6, 2011. Id.
The City now claims that the trial court erred by concluding, based on the City’s
admission, that All-Phase provided materials through the last date in the provided range,
February 7, 2011, making All-Phase’s notice timely under the sixty-day window for
unpaid subcontractor’s claims. The City argues that its admission only “establishes that
All-Phase provided materials at some point within the time period . . . . All-Phase did not
ask the City to admit, and the City did not admit, that All-Phase provided materials on
February 7.” Appellant’s Br. p. 14. We agree that the admission establishes that All-
Phase provided materials at some point or points during the date range, not throughout.
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But the City plainly admitted that All-Phase provided materials during the period from on
or about December 14, 2010, through February 7, 2011. The City is bound by its
admission; it may not now exclude February 7, 2011, from that range.3
The City also argues that the trial court should have stricken paragraph 8 of Jay
Orchard’s affidavit. In his affidavit, Orchard confirmed that All-Phase provided
materials for the project through February 7, 2011. Specifically, in paragraph 8, Orchard
stated that notice of All-Phase’s claim was sent to the mayor on April 6, 2011, “which
was 58 days after [All-Phase] supplied the last of the materials for the project.”
Appellant’s App. p. 60. Thus, in addition to the City’s admission, Orchard’s affidavit
established that All-Phase gave timely notice of its unpaid claim.
The City argues that its motion to strike should have been granted because there is
nothing in Orchard’s affidavit that established his personal knowledge of the fact that
All-Phase provided materials through February 7, 2011. But “an affidavit need not
contain an explicit recital of personal knowledge when it can be reasonably inferred from
its contents that the material parts thereof are within the affiant’s personal knowledge.”
DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 701
(Ind. Ct. App. 2012) (citing Decker v. Zengler, 883 N.E.2d 839, 844 (Ind. Ct. App.
2008), trans. denied), trans. denied. Here, it can be reasonably inferred that Orchard had
personal knowledge of when All-Phase provided materials for the project because as All-
Phase’s Credit Manager, Orchard was responsible for maintaining the company’s books
3
Although an admission is ordinarily binding on the party who made it, there are exceptions,
such as where an admission no longer is true because of changed circumstances or when an honest error
occurred. See Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889
(Ind. 1991). The City does not argue that it should not be bound by its admission for any such reason,
and to the extent the City implies that the request was ambiguous, we disagree.
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and records. See id. (court could reasonably infer that affiant had personal knowledge of
documents at issue and corresponding accounts based on affiant’s position as a Litigation
Recovery Specialist); Skaggs v. Merchs. Retail Credit Ass’n, Inc., 519 N.E.2d 202, 203
(Ind. Ct. App. 1988) (because affiant was employed by phone company and responsible
for customer billing and collections, court could reasonably infer that recital of payments
and credits made by phone-service customer were based on personal knowledge). The
trial court did not err by denying the City’s motion to strike.
Finally, the City argues that there was evidence establishing that All-Phase last
provided materials on February 3, 2011, instead of February 7, 2011, which created a
genuine issue of material fact precluding summary judgment. The City points to two
delivery tickets as support for its claim. But the tickets do not clearly establish when All-
Phase last provided materials.4 And the evidence before the trial court was the City’s
admission that All-Phase provided materials through February 7, 2011, as well as
Orchard’s affidavit to that effect. We cannot say that the trial court erred by concluding
that All-Phase provided timely notice of its unpaid subcontractor’s claim.
The party moving for summary judgment bears the burden of establishing that no
genuine issue of material facts exists. The burden then shifts to the nonmoving party to
establish that a genuine issue does in fact exist. As the moving party, All-Phase made a
prima facie showing that no genuine issue of material fact existed as to its right to recover
under Indiana Code section 36-1-12-12; the City failed to establish the contrary. We
therefore conclude that the trial court properly granted summary judgment for All-Phase.
4
The City acknowledges that the ticket upon which it largely relies is not plainly dated. While
there is a ship date listed, there is no pickup or delivery date next to the signature. See Appellant’s App.
p. 76.
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Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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