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


                                            2
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


                                             4
       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.”
                                                          5
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.
                                                  6
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.

                                            7
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.
                                                  8
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.
                                                     9
     Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.




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