Cemex Construction Materials South, LLC v. Falcone Brothers & Associates, Inc.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
CEMEX CONSTRUCTION MATERIALS SOUTH, LLC,
A FOREIGN LIMITED LIABILITY COMPANY,
Plaintiff/Appellee,
v.
FALCONE BROTHERS & ASSOCIATES, INC., AN ARIZONA CORPORATION,
AND THE GUARANTEE COMPANY OF NORTH AMERICA, USA,
A MICHIGAN CORPORATION,
Defendants/Appellants.
No. 2 CA-CV 2014-0044
Filed April 30, 2015
Appeal from the Superior Court in Pima County
No. C20121949
The Honorable Carmine Cornelio, Judge
VACATED AND REMANDED
COUNSEL
Lewis Roca Rothgerber LLP
By Kimberly A. Demarchi, Phoenix, and
John A. Hinderaker, Tucson
Counsel for Plaintiff/Appellee
Vingelli & Errico, Tucson
By Michael J. Vingelli
and
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
William E. Druke, Tucson
Co-Counsel for Defendants/Appellants
Quarles & Brady LLP, Tucson
By Craig H. Kaufman and Deanna Conn
Counsel for Amicus Curiae Arizona Rock Products Association
OPINION
Presiding Judge Kelly authored the opinion of the court, in which
Judge Howard and Judge Vásquez concurred.
K E L L Y, Presiding Judge:
¶1 Falcone Brothers & Associates, Inc. (Falcone) appeals
from the trial court’s judgment awarding damages to Cemex
Construction Materials South, LLC (Cemex) for materials and labor
Cemex provided to a public works construction project for which
Falcone was the general contractor. Falcone argues the court erred
in concluding that notices sent by Cemex to Falcone regarding
amounts Cemex was owed satisfied the requirements of Arizona’s
“Little Miller Act.” See A.R.S. § 34-223(A) (requiring materialman to
provide estimate of costs within twenty days of supplying labor or
materials and notice of any unpaid balance within ninety days of
completion). Falcone contends Cemex’s notices, which were sent by
first class mail with a certificate of mailing, did not comply with
§ 34-223(A), and Cemex therefore was precluded from bringing its
action. For the following reasons, we vacate the judgment and
remand for a new trial.
Factual and Procedural Background
¶2 The record supports the following facts and procedural
history. Falcone was the general contractor for a City of Tucson
public works improvement project. The project was bonded and
guaranteed by The Guarantee Company of North America (GCNA).
Falcone subcontracted with J & S Commercial Concrete Contractors,
2
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
Inc. (J & S) for concrete work on the project and J & S, in turn,
subcontracted with Cemex to provide construction materials.
¶3 In 2011, Cemex filed a complaint against J & S, Falcone,
and GCNA, alleging it had not been paid for the materials it had
supplied to the project. J & S did not answer the complaint, and
Cemex obtained a default judgment against it. Cemex then moved
for summary judgment against Falcone and GCNA, claiming it was
entitled to recover against the statutory payment bond. In its
motion, Cemex asserted that it had filed four preliminary twenty
day notices to Falcone pursuant to § 34-223(A) before filing suit, and
that each notice had been mailed separately via first class mail,
postage prepaid, with a certificate of mailing.
¶4 In its response to Cemex’s motion, Falcone asserted that
“[a]t no time before, during or after The Project did [it] receive a
Preliminary Twenty-Day Notice from [Cemex] for materials” Cemex
had supplied to J & S, as is required by § 34-223(A).1 This claim was
supported by a declaration from Falcone’s owner, who asserted
Falcone had not received any twenty day notices. Falcone also
contended that genuine issues of material fact existed regarding
whether Cemex had delivered any concrete to the project and the
amount of concrete delivered. Subsequently, the trial court granted
Cemex’s request to withdraw its motion for summary judgment,
allowing the parties additional time for disclosure and discovery.
¶5 In December 2012, Cemex renewed in part its motion
for summary judgment on the issue of damages, urging that
Falcone’s discovery responses indicated Cemex had “supplied at
least 837 cubic yards of concrete to the project.” Falcone agreed the
project had required 837 cubic yards of concrete but maintained that
a genuine issue of material fact existed regarding “how much
concrete Cemex actually provided to J & S” for the project.
¶6 Falcone then filed a motion for summary judgment,
claiming it had not received the statutorily required twenty day
1Falcone admits it received the statutorily required ninety day
notices, which Cemex sent via certified mail. See § 34-223(A).
3
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
notices and Cemex therefore was precluded from bringing its action.
It further contended the notices were insufficient to satisfy the
statutory requirements because they were sent by first class, rather
than by registered or certified mail. Cemex maintained that the four
preliminary twenty day notices it had sent by first class mail with
certificates of mailing satisfied the statute’s requirements.
¶7 In March 2013, the trial court denied Cemex’s motion
for partial summary judgment on the issue of damages. After a
hearing, the court also denied Falcone’s motion for summary
judgment, concluding that Cemex’s certificates of mailing and
affidavits were “sufficient to meet the purposes of” § 34-223(A).
After a bench trial on the sole issue of damages, the court entered
judgment in favor of Cemex, awarding it $81,913.04 in damages
along with prejudgment interest, costs, and attorney fees. Falcone
timely appealed. 2 We have jurisdiction pursuant to A.R.S.
§ 12-2101(A).
Discussion
¶8 Falcone argues the trial court erred by concluding that
the twenty day notices Cemex sent to Falcone by first class mail
satisfied § 34-223(A) as a matter of law.3 Falcone asserts the statute
2 GCNA joined with Falcone for purposes of this suit, but
“tendered its defense to Falcone.” Accordingly, only Falcone filed
briefs in this appeal.
3We generally do not review on appeal the denial of a motion
for summary judgment, even after entry of a final judgment. Strojnik
v. Gen. Ins. Co. of Am., 201 Ariz. 430, ¶ 11, 36 P.3d 1200, 1203 (App.
2001). But we may review such orders when, as here, the motion is
denied on an issue of law. See id., citing Hauskins v. McGillicuddy, 175
Ariz. 42, 49, 852 P.2d 1226, 1233 (App. 1992); see also A.R.S. § 12-
2102(A). Although Falcone asserted at oral argument that this
appeal did not involve the denial of summary judgment because
Cemex had prevailed on its motion for summary judgment as to
notice, this is clearly incorrect; Cemex moved for summary
judgment on the sole issue of damages, which the trial court denied.
4
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
specifies that both twenty and ninety day notices must be sent only
by registered or certified mail, as provided for in the last sentence of
that section. See § 34-223(A) (“Such notice shall be served by
registered or certified mail, postage prepaid . . . .”). Cemex, by
contrast, claims that because this sentence contains the singular form
(“[s]uch notice”), it applies only to ninety day notices; this,
according to Cemex, leaves an “unfilled statutory gap,” which we
should fill by applying the mailing provision found in A.R.S.
§ 33-992.01(F) (the mechanic’s lien law). Because § 33-992.01 allows
for service by first class mail with a certificate of mailing, Cemex
maintains its notices were sufficient. We review issues of statutory
interpretation and application de novo. Schwarz v. City of Glendale,
190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997).
¶9 “The primary rule of statutory construction is to find
and give effect to legislative intent.” Mail Boxes, Etc., U.S.A. v. Indus.
Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). To determine
that intent, we look first to the plain language of the statute. Canon
Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500,
503 (1994). “When a statute is clear, we do not ‘resort to other
methods of statutory interpretation to determine the legislature’s
intent because its intent is readily discernible from the face of the
statute.’” In re Estate of Wyatt, 235 Ariz. 138, ¶ 5, 329 P.3d 1040, 1041
(2014), quoting State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243
(2003). But when a statute’s language is ambiguous, we resort to
principles of statutory interpretation to discern the legislature’s
intent. Bentley v. Building Our Future, 217 Ariz. 265, ¶ 13, 172 P.3d
860, 865 (App. 2007). Although statutes such as the LMA are to be
construed liberally in favor of the materialman, such construction
“must give way to express limitations imposed by the legislature.”
Maricopa Turf, Inc. v. Sunmaster, Inc., 173 Ariz. 357, 361, 842 P.2d
1370, 1374 (App. 1992); Coast to Coast Mfg. v. Carnes Constr., Inc., 145
Ariz. 112, 113, 700 P.2d 499, 500 (App. 1985).
¶10 Both Cemex and Falcone conceded at argument that the
notice provision of the statute is ambiguous. Because the term “such
Falcone filed its motion for summary judgment on the issue of
notice, which the court also denied.
5
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
notice” is susceptible to both parties’ interpretations, we agree. We
therefore look to the language of the statute as well as principles of
statutory interpretation to discern the legislature’s intent.
See Bentley, 217 Ariz. 265, ¶ 13, 172 P.3d at 865.
¶11 Arizona’s “Little Miller Act” (LMA),4 A.R.S. §§ 34-221
through 34-227, requires a general contractor on a public project to
post a bond to ensure that all who supply labor or materials to the
project are paid. § 34-222. Both a payment bond and a performance
bond, executed by a surety company, must be posted before public
work begins. Id. The LMA provides a materialman with a right to
recover from the payment bond when it has not been paid for
material or labor it has provided. § 34-223. To maintain an action on
the bond, a claimant must comply with the notice requirements of
§ 34-223(A), which provides in pertinent part:
[A]ny such claimant having a direct
contractual relationship with a
subcontractor of the contractor furnishing
such payment bond but no contractual
relationship express or implied with such
contractor shall have a right of action upon
such payment bond upon giving the
contractor only a written preliminary
twenty day notice, as provided for in § 33-
992.01, subsection C, paragraphs 1, 2, 3 and
4 and subsections E and H, and upon
giving written notice to such contractor
within ninety days from the date on which
such claimant performed the last of the
labor or furnished or supplied the last of
the material for which such claim is made,
stating with substantial accuracy the
amount claimed and the name of the party
to whom the material was furnished or
4The LMA is modeled after the federal Miller Act, 40 U.S.C.
§§ 3131 through 3134.
6
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
supplied for whom the labor was done or
performed. Such notice shall be served by
registered or certified mail, postage
prepaid, in an envelope addressed to the
contractor at any place the contractor
maintains an office or conducts business, or
at the contractor’s residence.
The statute requires a materialman claimant to send both a
preliminary twenty day notice and a final ninety day notice, and
neither notice may substitute for the other. Westburne Supply, Inc. v.
Diversified Design & Constr., Inc., 170 Ariz. 598, 600, 826 P.2d 1224,
1226 (App. 1992).
¶12 The purpose of these notice requirements is “‘to fix a
time limit after which the prime contractor could make payment to
the subcontractor with certainty that he would not thereafter be
faced by claims of those who had supplied labor and materials to the
subcontractor,’” United States ex rel. Blue Circle W., Inc. v. Tucson
Mech. Contracting Inc., 921 F.2d 911, 914 (9th Cir. 1990), quoting
Bowden v. United States ex rel. Malloy, 239 F.2d 572, 577-78 (9th Cir
1956), and to “protect those who furnish labor or materials in the
construction setting,” W. Asbestos Co. v. TGK Constr. Co., 121 Ariz.
388, 391, 590 P.2d 927, 930 (1979). Section 34-223(A) also “relieve[s] a
prime contractor of liability to sub-subcontractors or materialmen
(who have no contractual relation to the prime contractor) after
ninety days so that the prime contractor may safely pay his
subcontractor without the fear of being subject to ‘double payments’
to sub-subcontractors.” Coast to Coast Mfg., 145 Ariz. at 113, 700 P.2d
at 500.
¶13 Section 34-223(A) requires twenty day notices to
conform to certain provisions contained in § 33-992.01, which
establishes requirements for persons seeking to pursue a claim
against a mechanic’s or materialman’s lien. Specifically, § 34-223(A)
states that twenty day notices shall be prepared “as provided for” by
§ 33-992.01(C)(1), (2), (3), and (4), as well as § 33-992.01(E) and (H).
Those subsections, respectively, specify the information that must be
included in a twenty day notice, § 33-992.01(C), permit materialmen
7
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
to file twenty day notices for subsequent work or materials even if a
preliminary twenty day notice for earlier work or deliveries was not
mailed, § 33-992.01(E), and state the effect on payment when a
materialman provides labor or services exceeding the description in
a twenty day notice, § 33-992.01(H). Pertinent to this opinion,
subsection (F) of that statute, which is not included in § 34-223(A),
also states:
The notice or notices required by [§ 33-
992.01] may be given by mailing the notice
by first class mail sent with a certificate of
mailing, registered or certified mail,
postage prepaid in all cases, addressed to
the person to whom notice is to be given at
the person’s residence or business address.
Service is complete at the time of the
deposit of notice in the mail.
Applicability of § 33-992.01(F) to the LMA
¶14 Falcone maintains that § 34-223(A) requires LMA
notices to be sent by registered or certified mail and does not
authorize service of twenty day notices by first class mail with
certificates of mailing. It contends the legislature “expressly
excluded” § 33-992.01(F)—the mechanic’s lien provision permitting
its twenty day notices to be sent by first class mail with a certificate
of mailing—from § 34-223(A) of the LMA. Cemex, by contrast,
urges that § 33-992.01(F) is “implicitly incorporated” into
§ 34-223(A), and that notices sent by first class mail with a certificate
of mailing therefore are proper.
¶15 To determine whether the mailing provision in
§ 33-992.01(F) applies to twenty day notices sent pursuant to
§ 34-223(A) of the LMA, we apply the doctrine of expressio unius est
exclusio alterius, an established rule of statutory construction
meaning “‘the expression of one or more items of a class indicates an
intent to exclude all items of the same class which are not
expressed.’” See Boynton v. Anderson, 205 Ariz. 45, ¶ 8, 66 P.3d 88,
90-91 (App. 2003), quoting State v. Fell, 203 Ariz. 186, ¶ 11, 52 P.3d
8CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
218, 221 (App. 2002). When we apply this doctrine to the plain
language of § 34-223(A), it is clear the legislature did not intend the
mailing provision of § 33-992.01(F) to apply to the notices required
by § 34-223(A). Section 34-223(A) specifically refers to subsections
(C)(1), (2), (3), and (4), and subsections (E) and (H). As noted above,
subsections (C), (E), and (H) refer to the content and treatment of
twenty day notices. By excluding subsection (F) from the list of
provisions applicable to twenty day notices under the LMA, the
legislature indicated it did not intend subsection (F)’s mailing
provisions to apply. Cf. PAM Transp. v. Freightliner Corp., 182 Ariz.
132, 133, 893 P.2d 1295, 1296 (1995) (“[I]f a statute specifies under
what conditions it is effective, we can ordinarily infer that it
excludes all others.”).
¶16 Nothing in the legislative history of these statutes
contradicts this conclusion. See Carrow Co. v. Lusby, 167 Ariz. 18, 20,
804 P.2d 747, 749 (1990) (“Legislative intent often can be discovered
by examining the development of a particular statute.”). When the
LMA was enacted in 1969, it only required a claimant to provide a
ninety day notice to the contractor. 1969 Ariz. Sess. Laws, ch. 52,
§ 11. Section 34-223(A) was amended in 1984 to include the
requirement that a claimant also provide a written preliminary
estimate within twenty days of furnishing services or materials.
1984 Ariz. Sess. Laws, ch. 242, § 1. In doing so, § 34-223(A)
incorporated by reference certain subsections of the mechanic’s lien
law: specifically, § 33-992.01(C)(1), (2), (3), and (4), as well as
subsections (D), (E), and (I). Id.
¶17 The LMA was amended again in 1992 to account for
§ 33-992.01 having been renumbered that same year. 1992 Ariz.
Sess. Laws, ch. 353, § 8. In pertinent part, § 33-992.01(I) was
renumbered as subsection (H) and subsection (G) was renumbered
as subsection (F) following the deletion of § 33-992.01(D). 5 1992
Ariz. Sess. Laws, ch. 353, § 1. Accordingly, § 34-223(A) removed the
5Section 33-992.01(F) also was amended to require, inter alia,
that a certificate of mailing accompany notices sent by first class
mail. 1992 Ariz. Sess. Laws, ch. 353, § 1.
9
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
reference to § 33-992.01(D) and renumbered its reference to
§ 33-992.01(I) as subsection (H). 1992 Ariz. Sess. Laws, ch. 353, § 8.
The act was amended again in 1992 to remove gender-specific
references, but the pertinent language was not altered. 1992 Ariz.
Sess. Laws, ch. 227, § 4.
¶18 Although the legislature could have incorporated the
mailing requirements of subsection (F) into § 34-223(A) while
making any of these amendments, it did not, creating a strong
inference it did not intend to allow LMA notices to be mailed via
first class mail. See Boynton, 205 Ariz. 45, ¶¶ 10-11, 66 P.3d at 91
(concluding legislature did not intend to incorporate statutory
provision into a related statute when it “could have . . . but decided
not to” amend statutory language to include such provision). We
presume that “‘what the Legislature means, it will say.’” Canon Sch.
Dist. No. 50, 177 Ariz. at 529, 869 P.2d at 503, quoting Padilla v. Indus.
Comm’n, 113 Ariz. 104, 106, 546 P.2d 1135, 1137 (1976).
Implicit Incorporation
¶19 In an amicus brief filed with this court, the Arizona
Rock Products Association (ARPA) notes that § 34-223(A) expressly
refers to § 33-992.01(C), which in turn refers to § 33-992.01(B) (“The
preliminary twenty day notice referred to in subsection B of this
section shall be given not later than twenty days after the claimant
has first furnished labor”); subsection (B), in turn, refers to the
requirement that a claimant file a “written preliminary twenty day
notice as prescribed by this section.” ARPA contends that “[t]he
express reference to providing notice ‘as prescribed by this section’
refers to the entire section 33-992.01, and not just subsection B.”
And because § 33-992.01 relies on subsection (F) to prescribe
acceptable methods of notice, including notice by first class mail
with a certificate of service, ARPA maintains that subsection (F)’s
mailing provision implicitly applies to § 34-223(A).
¶20 But this is a strained reading of the statute that
contradicts its plain language. First, ARPA’s argument would
appear to incorporate every provision of § 33-992.01 into the LMA.
Such a reading would render meaningless the legislature’s express
10
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
intent to include certain provisions and exclude others, leaving
§ 33-223(A)’s specific references to § 33-992.01 irrelevant.
See Weitekamp v. Fireman’s Fund Ins. Co., 147 Ariz. 274, 275, 709 P.2d
908, 909 (App. 1985) (when interpreting statutes, no part of statute
may be “rendered void, superfluous, contradictory or
insignificant”).
¶21 This interpretation also would incorporate into the
LMA certain provisions of the mechanic’s lien law that expressly
conflict with the LMA’s own requirements. For example, the
mechanic’s lien law requires a claimant to serve twenty day notices
on the project owner, the original contractor, the construction lender,
if any, and to the person the claimant contracted with to provide
labor or materials. § 33-992.01(G). The LMA, by contrast, requires
its twenty and ninety day notices be served on “the contractor only.”
§ 34-223(A). Similarly, a claimant under the mechanic’s lien law
must bring an action to enforce the lien within six months after the
lien is recorded. A.R.S. § 33-998(A). The LMA allows an action to be
brought within one year from the date a materialman last provided
labor or materials. § 34-223(B).
¶22 Additionally, to preserve a claim under the mechanic’s
lien law, a lien claimant must state under oath, inter alia, that it gave
§ 33-992.01’s preliminary twenty day notice, and must attach “the
proof of mailing required by § 33-992.02.” A.R.S. § 33-993(A); see also
A.R.S. § 33-981(D) (“A person required to give preliminary twenty
day notice pursuant to § 33-992.01 is entitled to enforce the lien
rights . . . only if he has given such notice and has made proof of
service pursuant to § 33-992.02.”); Allstate Util. Constr., LLC v. Towne
Bank of Ariz., 228 Ariz. 145, ¶ 13, 263 P.3d 694, 696-97 (App. 2011).
The LMA has no such requirement, and reading into § 34-223(A) the
additional provisions of the mechanic’s lien law would effectively
alter how an LMA claimant may perfect and pursue its claim.
¶23 The results would be equally untenable if ARPA’s
argument could somehow be construed as urging only that
subsection (F)’s mailing provision be implicitly incorporated into
§ 34-223(A). That subsection of the mechanic’s lien law states that
service of any notice required under that section “is complete at the
11
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
time of the deposit of notice in the mail.” § 33-992.01(F). This
provision, known as the “mailbox rule,” has been determined not to
apply to § 34-223(A). In Maricopa Turf, we examined whether the
mailbox rule contained in § 33-992.01(F) 6 could be read into
§ 34-223(A). 173 Ariz. at 362-63, 842 P.2d at 1375-76. After noting
that the LMA only “incorporates the form of notice set out in the”
lien statute, we concluded the legislature had “excluded those
provisions not mentioned” by § 34-223(A), including § 33-992.01(F)’s
mailing requirements. Id. at 362, 842 P.2d at 1375.
¶24 In doing so, we pointed out that the “timely filing of a
written claim with the contractor before the expiration of ninety days
is a condition precedent to recovery under a Little Miller Act bond.”
Id. at 363, 842 P.2d at 1376, citing Coast to Coast Mfg., 145 Ariz. at 113,
700 P.2d at 500; Greaig v. Park W. Constr. Co., 130 Ariz. 576, 579, 637
P.2d 1079, 1082 (App. 1981); see also W. Asbestos, 121 Ariz. at 390, 590
P.2d at 929. To incorporate the mailbox rule into the LMA would
effectively alter the stringent time requirements within which a
claimant must file its notices.7 Maricopa Turf, 173 Ariz. at 362-63, 842
P.2d at 1375-76. Although, as Cemex has pointed out, this analysis
was discussed in dicta, we nonetheless find this logic persuasive. To
incorporate subsection (F) into § 34-223(A) would effectively allow
both twenty and ninety day notices to be mailed on the day the
LMA requires the notices to be received, in violation of both the
express terms of the LMA and its stated policy to protect contractors
6When Maricopa Turf was decided, the mailbox rule appeared
in § 33-992.01(G). Because subsection (G) now has been renumbered
subsection (F), 1992 Ariz. Sess. Laws, ch. 353, § 1, we refer to it
accordingly.
7Cemex suggests the court in Maricopa Turf did not apply the
mailbox rule to § 34-223(A) because it would “have substantively
changed the provisions of the Little Miller Act by extending the time
to serve a valid notice,” a consideration which it claims is not “at
play here.” But we will not conclude that a select part of the
subsection applies to the LMA but another does not, particularly
without any indication that the legislature intended such a result.
12
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
from late-filed claims.8 See United States ex rel. Blue Circle W., Inc.,
921 F.2d at 914; Coast to Coast Mfg., 145 Ariz. at 113, 700 P.2d at 500.
¶25 For these reasons, ARPA’s argument must fail. We
cannot expand the language of the LMA so drastically as to
incorporate all provisions of the mechanic’s lien law without
producing contradictory and confusing results. And we cannot,
absent express statutory language, selectively choose which
provisions may have been implicitly incorporated into § 34-223(A)’s
language. We therefore conclude that § 34-223(A) of the LMA does
not incorporate the mailing provision found in § 33-992.01(F).
Section 34-223(A)’s Mailing Requirements
¶26 We next must resolve how the notices required by
§ 34-223(A) are to be mailed. To determine whether the last sentence
of § 34-223(A) applies to both the twenty and ninety day notices, we
look first to the statute’s language. See Citadel Care Ctr. v. Ariz. Dep’t
of Revenue, 200 Ariz. 286, ¶ 11, 25 P.3d 1158, 1161 (App. 2001).
Unless a word is otherwise defined, we will construe statutory
language pursuant to its ordinary and common meaning. Id.; A.R.S.
§ 1-213; accord Beatie v. Beatie, 235 Ariz. 427, ¶ 19, 333 P.3d 754, 758
(App. 2014). In doing so, we seek to avoid “impossible or absurd
consequences.” Boynton, 205 Ariz. 45, n.2, 66 P.3d at 92 n.2. If the
statute’s language does not disclose the legislative intent, “we
scrutinize the statute as a whole and give it a fair and sensible
meaning.” Citadel Care Ctr., 200 Ariz. 286, ¶ 11, 25 P.3d at 1161.
¶27 The language of the statute contradicts Cemex’s
argument. First, the meaning of the word “such” encompasses a
plural construction. “Such” is defined as “[o]f this or that kind,” or
“[t]hat or those; having just been mentioned.” Black’s Law Dictionary
1661 (10th ed. 2014). This indicates that the term “such notice” is
8 To the extent Maricopa Turf may have suggested that
subsection (F) applies to the LMA’s twenty day notices, 173 Ariz. at
363, 842 P.2d at 1376, we disagree for the reasons set forth in this
opinion.
13
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
applicable to both the twenty and ninety day notices. Because the
rest of the sentence is written in the singular, the term “such notice”
likewise is applicable to each individual notice sent by an LMA
claimant.
¶28 Second, even if the last sentence of § 34-223(A) was
written solely in the singular form, it would not compel Cemex’s
proposed interpretation that it applies only to the ninety day notices.
It is an established rule of statutory construction that “[w]ords in the
singular number include the plural, and words in the plural number
include the singular,” A.R.S. § 1-214(B), “unless the legislature
expresses ‘manifest intent’ to the contrary,” N. Valley Emergency
Specialists, L.L.C. v. Santana, 208 Ariz. 301, ¶ 18, 93 P.3d 501, 505
(2004), quoting Homebuilders Ass’n of Cent. Ariz. v. City of Scottsdale,
186 Ariz. 642, 649, 925 P.2d 1359, 1366 (App. 1996). The legislature
did not indicate a “manifest intent” that the last sentence of
§ 34-223(A) apply only to the ninety day notices; rather, as the
sentence is the only provision in the LMA that addresses notice
mailing requirements, we conclude the legislature intended it to
apply to both the twenty and ninety day notices. See Homebuilders
Ass’n of Cent. Ariz., 186 Ariz. at 649, 925 P.2d at 1366 (we presume
legislature “meant what it said” when it enacted rules of statutory
construction and was aware of those rules when enacting statutes).
Had the legislature intended this sentence to apply to only the
ninety day notice, we presume it would have said so. See, e.g., 1992
Ariz. Sess. Laws, ch. 353, § 2 (amending § 33-992.02 to replace the
term “[s]uch affidavit” with the term “[t]he affidavit” when
referring to one specific form).
¶29 Moreover, our “scrutin[y of] the statute as a whole [to]
give it a fair and sensible meaning” compels the same conclusion.
See Citadel Care Ctr., 200 Ariz. 286, ¶ 11, 25 P.3d at 1161. Applying
the last sentence to only the ninety day notice would, as Cemex has
pointed out, result in a gap in the statute, depriving a claimant of
guidance regarding how to mail a twenty day notice. This is an
absurd result, which we will neither presume nor give effect.
See State v. Medrano–Barraza, 190 Ariz. 472, 474, 949 P.2d 561, 563
(App. 1997) (“We presume the framers of the statute did not intend
an absurd result and our construction must avoid such a
14
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
consequence.”); Ariz. Health Care Cost Containment Sys. v. Bentley,
187 Ariz. 229, 233, 928 P.2d 653, 657 (App. 1996) (courts must give
statutes sensible constructions and avoid absurd results). The more
logical construction is to conclude that the legislature intended the
last sentence to apply to both the twenty and ninety day notices,
requiring that each be sent by registered or certified mail.
¶30 Cemex and ARPA have pointed out that “requir[ing]
certified or registered mail for twenty day notices would increase
the cost of construction for both public and private jobs with no real
benefit” and will “deprive contractors of payment who relied upon
first class mail pursuant to industry understanding.” ARPA
maintains that the “industry has relied upon first class mail in
conjunction with sending all preliminary twenty day notices for
more than thirty years, since 1984, [and] the Court’s ruling could
undermine all of the notices that have been sent in reliance upon this
industry practice that are currently pending.” It further urges that
reading the LMA to require the twenty day notices to be sent via
registered or certified mail would “increase the costs of construction
for both public and private jobs with no real benefit” and “makes
[no] legislative sense.”
¶31 We acknowledge that this opinion may have a negative
impact on an apparently longstanding industry practice. But “it is
well-settled that ‘we cannot legislate,’” and that “‘[o]ur province is
to construe the law as written.’” Westburne Supply, 170 Ariz. at 601,
826 Ariz. at 1227, quoting Reichenberger v. Salt River Project, 61 Ariz.
465, 471, 150 P.2d 758, 760 (1944) (alteration in Westburne). Although
the legislature could have taken the approach urged by Cemex and
ARPA, specifying first class mail as a permissible method of
delivering LMA notices, it did not. See id. If the legislature so
intends, it can amend the statute accordingly. See Galloway v.
Vanderpool, 205 Ariz. 252, ¶ 17, 69 P.3d 23, 27 (2003) (“[I]f the court
interprets the statute other than as the legislature intended, the
legislature retains the power to correct us.”).
15
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
Actual Notice
¶32 Arizona and federal courts have, to an extent, mitigated
the stringency of the notice requirements by determining the
requirements are satisfied when the contractor receives actual notice
of a materialman’s claim. 9 In Western Asbestos, 121 Ariz. at 390,
590 P.2d at 929, our Supreme Court addressed whether § 34-223(A)’s
notice requirements were satisfied when a materialman sent a letter
to the general contractor via a method other than the required
registered or certified mail. 10 In holding that the materialman’s
deviation in the method of mailing was not fatal to its claim, the
court quoted with approval the United States Supreme Court’s
rationale in Fleisher Engineering & Construction Co. v. United States,
311 U.S. 15, 19 (1940), that the purpose of the statutory registered
mail provision
was to assure receipt of the notice, not to
make the described method mandatory so
as to deny right of suit when the required
written notice within the specified time had
actually been given and received. In the
face of such receipt, the reason for a
particular mode of service fails. It is not
reasonable to suppose that Congress
intended to insist upon an idle form.
Rather, we think that Congress intended to
provide a method which would afford
9 Because Arizona’s Little Miller Act was modeled after its
federal counterpart, cases interpreting the federal statute are
persuasive in interpreting Arizona’s act. Greaig, 130 Ariz. at 579-80
& n.2, 637 P.2d at 1082-83 & n.2.
10Although Western Asbestos was decided before § 34-223(A)
was amended to require twenty day notices, our conclusion that the
last sentence applies to both twenty and ninety day notices
persuades us that its reasoning applies.
16
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
sufficient proof of service when receipt of
the required written notice was not shown.
121 Ariz. at 390, 590 P.2d at 929. The Western Asbestos court
concluded its decision was “supported by the great weight of case
law to the effect that this statute is remedial in nature and must be
interpreted so as to effectuate its intent to protect those who furnish
labor or materials in the construction setting.” Id. at 391, 590 P.2d at
930; see also Norman S. Wright & Co. v. Slaysman, 124 Ariz. 321, 324,
604 P.2d 252, 254 (1979); Maricopa Turf, 173 Ariz. at 362, 842 P.2d at
1375; Greaig, 130 Ariz. at 578-79, 637 P.2d at 1081-82.
¶33 Federal cases similarly have deemed the notice
requirements satisfied when the contractor received actual notice.
See United States ex rel. Moody v. Am. Ins. Co., 835 F.2d 745, 747-48
(10th Cir. 1987) (noting most circuit courts found notice not sent by
prescribed means sufficient when contractor had actual notice of
claim against him); see also United States ex rel. Water Works Supply
Corp. v. George Hyman Constr. Co., 131 F.3d 28, 32 (1st Cir. 1997);
United States ex rel. Hillsdale Rock Co. v. Cortelyou & Cole, Inc., 581 F.2d
239, 243 (9th Cir. 1978). Thus, if a notice sent pursuant to the LMA is
actually received by a contractor, the fact that it was sent by a
method other than registered or certified mail will not preclude a
materialman’s action on the bond.
Remedy
¶34 In light of this conclusion, our final task is to determine
the appropriate remedy in this case. Falcone, urging the “trial court
committed reversible error in ruling that Cemex’s 20-day notices
were valid,” asks us to enter “summary judgment against Cemex as
a matter of law.” It claims the record contains a declaration from
Falcone’s owner stating Falcone did not receive the notices and,
consequently, there is no genuine issue of fact regarding actual
notice that would preclude entry of summary judgment. Cemex
contends that “the appropriate remedy is a remand for trial on the
factual issue of actual receipt of the preliminary twenty-day
notices.”
17
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
¶35 Summary judgment is appropriate only if “there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). On
appeal, “we determine de novo whether any genuine issues of
material fact exist and whether the trial court properly applied the
law.” Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502,
¶ 10, 269 P.3d 678, 682 (App. 2011); see also Ray Scottsdale Lumber Co.
v. First Fed. Sav. & Loan Ass’n of Phoenix, 3 Ariz. App. 366, 368, 414
P.2d 754, 756 (1966) (appellate court examines record to determine
existence of dispute of material fact).
¶36 Our review of the record reveals a genuine dispute of
material fact. In its motion for summary judgment, Falcone asserted
it had not received any of Cemex’s twenty day notices. It supported
this contention with a declaration prepared by Falcone’s owner,
Gaetano “Tom” Falcone, who stated without further explanation
that Falcone did not receive any of the notices Cemex had mailed.
Cemex replied that it had sent four twenty day notices to Falcone on
four separate occasions, each with an affidavit of service and
certificate of mailing. It supported this contention with a declaration
from the person who had mailed the notices as well as copies of the
certificates of mailing, which had been stamped, dated, and initialed
by a postal employee. Falcone does not dispute that the notices
were mailed.
¶37 At the hearing on the summary judgment motions,
Cemex stated it had no evidence Falcone had received the notice
aside from “pro[of] that the notice went into the mail.” It argued,
however, that it would be unlikely for a general contractor “on the
job” to be completely unaware of the source of its materials for that
project. The court responded that it did not “have facts as to this”
and that it was “not going to make any rulings based on” the factual
issue of actual notice. The court then concluded that the twenty day
notices did not need to be mailed via registered or certified mail and
that Cemex’s affidavits and notices were “sufficient to meet the
purposes of the statute.”
¶38 In so ruling, the trial court purposefully did not make
findings as to whether Falcone actually had received Cemex’s
18
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
twenty day notices. Although Falcone urges that Mr. Falcone’s
declaration conclusively resolves this issue, we disagree. His
declaration is an insufficient basis upon which a court may make a
determination, as a motion for summary judgment may not be
granted or denied when supported solely by a self-serving and
conclusory affidavit. See Florez v. Sargeant, 185 Ariz. 521, 526-27, 917
P.2d 250, 255-56 (1996) (self-serving affidavits or affidavits setting
forth ultimate facts or legal conclusions lack “relevant foundation”
and “can neither support nor defeat a motion for summary
judgment”).
¶39 Mr. Falcone’s declaration states “Falcone has never
received any communication” from Cemex and “[a]t no time did
Falcone receive a Preliminary Twenty-Day Notice” from Cemex.
But it provided no evidence that Mr. Falcone was the person
designated to receive such notices or specify any steps Falcone took
to verify it had not, in fact, received them; nor did it suggest any
possible reason—such as an incorrect address or missing postage—
that might explain why each of four separate notices might not have
reached Falcone. Mr. Falcone’s declaration does not conclusively
demonstrate that Falcone did not receive the notices, nor establish
the absence of a genuine issue of material fact. Accordingly, we
vacate the judgment and remand this case to the trial court for a new
trial.
Attorney Fees
¶40 Cemex has requested its reasonable attorney fees
pursuant to the terms of the bond, 11 which provides that “[t]he
prevailing party or any party which recovers judgment on this bond
shall be entitled to such reasonable attorney’s fees as may be fixed
11Cemex also has requested its attorney fees pursuant to A.R.S.
§ 12-341.01, which permits a court to award a successful party
attorney fees in “any contested action arising out of a contract.” But
an action against an LMA bond is a statutory remedy, and as such
does not “aris[e] out of a contract” pursuant to § 12-341.01. Maricopa
Turf, 173 Ariz. at 363, 842 P.2d at 1376; see also § 34-222(B).
19
CEMEX v. FALCONE BROS. & ASSOCS., INC.
Opinion of the Court
by the court or a judge thereof.” 12 Because neither party has
prevailed on appeal, we make no award at this time. If Cemex
ultimately is the prevailing party, the trial court may consider an
award to Cemex for attorney fees incurred during this appeal. See
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, ¶ 37, 165
P.3d 173, 182 (App. 2007) (deferring party’s request for attorney fees
on appeal “to the trial court’s discretion pending resolution of the
matter on the merits”).
Disposition
¶41 For the foregoing reasons, we vacate the judgment and
remand for a new trial.
12 Falcone, for the first time in its reply brief, likewise has
requested its attorney fees pursuant to § 12-341.01 and the terms of
the payment bond. But Rule 21(a)(1), Ariz. R. Civ. App. P., requires
a party claiming attorney fees to do so in an opening or answering
brief on appeal. We therefore do not consider this request.
20