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terms. Id. If the writing can support different interpretations, which appear “when it is read in
light of the surrounding circumstances, and both interpretations are reasonable,” then there is an
ambiguity, and the Court then must look to evidence outside of the agreement, including
testimony from the parties, to resolve. Id. (quoting Isbrandtsen v. N. Branch Corp., 150 Vt. 575,
579 (1988)). If the meaning of a contract is ambiguous, then interpretation becomes a mixed
question of fact and law, and summary judgment may not be appropriate. Cate v. City of
Burlington, 2013 VT 64, ¶ 15.
B. The Interpretation of Section 12(b)
The central question for the present motion may be broken into two parts. First, how
should the Court interpret the adverbial phrase in Section 12(b)? Does it modify the series of
expenses listed or simply the last item? Second, if the Court interprets the adverbial phrase to
modify the series in the whole sentence, do the circumstances suggest a latent ambiguity?
1. The Plain Language Syntax under the Serial Qualifier Rule
As to the first question, the Court is guided by the parallel construction of the sentence
and consistency of all nouns and verbs. As Justice Scalia and Professor Garner have instructed:
“When,” in a contract or statute, “there is a straightforward, parallel construction that involves all
nouns or verbs in a series,” a modifier following the last item in the list “normally applies to the
entire series.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 147 (2012) (quoted in United States for Use and Benefit of Central Southern Construction
Corp. v. Gulf Building, 568 F.Supp.3d 1395, 1399 (S.D. Ga 2021). This rule of construction is
known as a “series qualifier.” United States v. Lockhart, 749 F.3d 148, 152 (2d Cir. 2014), aff’d,
577 U.S. 347 (2016). While the series qualifier rule is neither fixed, nor mandatory, its
reasoning is largely consistent with the language of the sentence and the context of the
agreement for six reasons.
First, the adverbial phrase at issue (“to be billed through CAM based on Tenant’s
proportionate share”) does not modify the proceeding noun, but it modifies the verb “to pay.”
The sentence commands Defendants “to pay” and then lists the four types of utilities that they
have to pay. The adverbial clause modifies the verb by specifying how these expenses are to be
paid. This modification, by virtue of the sentence structure, then applies to all four categories
without distinction. Applying it to some of the nouns in the sentence, but not others, would be
inconsistent with the syntax.
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Second, the nature of the listed items in Section 12(b) are parallel in construction. They
are all utilities billed by third parties that would be directly attributable to the Defendants as
tenants and their use of the space. Electricity, heat, propane, and water and sewer, while
different utilities, are all, functionally, the same. They are delivered, usually automatically, to
the property; they are used at a rate that is dependent on the intensity of use; and their costs are
periodically invoiced. All four utilities are essential not only to the tenant but to maintaining the
premises. Failure to maintain heat or electricity could lead to freezing pipes and damage to the
structure.7 Lack of water and sewer renders the premises uninhabitable. They are effectively the
same necessary third-party services in which both landlord and tenant have a strong interest in
ensuring that they are paid on a regular and continuing basis.
Third, there is no question, at least as the present motion is framed, that Defendants were
responsible for all of the utility costs attributable to their rental space. The sole question is
whether payments were intended to flow through Plaintiff’s CAM costs or directly to the
supplier. Section 12(b) is the only part of the lease that addresses these utility expenses, and the
only instruction as to how these expenses were to be paid is found in the final part of the
sentence—the adverbial phrase assigns payment through CAM costs. There is no express
language in Section 12(b) that the first three utilities are to be paid directly to the suppliers.
Plaintiff’s argument, to this extent, would require the Court to infer that term out of necessity
through the exclusion of the adverbial phrase. Such an interpretation is disfavored because it
would substitute an implied term for an express one. See Sutton v. Purzycki, 2022 VT 56, ¶ 37
(“A contract ‘must be interpreted according to the parties’ intent as expressed in the writing.’”)
(quoting Lussier v. Lussier, 174 Vt. 454, 455 (2002) (mem.)).
Fourth, there is the general silence of the contract as to Defendants setting up their own
accounts. Unlike the insurance provision of Section 8, there is no language instructing
Defendants to establish their own accounts with the electrical supplier, the City (for water,
sewer, and district heat), or a propane supplier.
Fifth, the contract itself envisions an active, on-premises landlord. Plaintiff retained a
majority of the premise’s square footage and assigned itself responsibility for maintaining the