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

2

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, 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

3

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).
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

4

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 

 

2GCNA 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. 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

5

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. 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

6

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.
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

7

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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

8

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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

9

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.
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

10

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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

11

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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

12

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.
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

13

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.
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

14

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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

15

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.”).
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

16

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 

 

9Because 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. 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

17

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.”
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

18

¶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 
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

19

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).
CEMEX v. FALCONE BROS. & ASSOCS., INC.

Opinion of the Court

20

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.

 

12Falcone, 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.