Id. In this case, the context drawn from the plain language does not support applying the last
antecedent rule, nor does the syntax, grammatical structure, or even sense of the sentence support
its application. As noted above, the application of the adverbial phrase to the first three utilities
does nothing to the sense of the sentence, but it does not create a more coherent interpretation
that would recommend applying the last antecedent rule over the serial qualifier rule.
For these reasons, the Court finds that the plain and reasonable reading of Section 12(b)
requires the application of the adverbial phrase to the sentence to a whole, and that interpretation
is imbedded in the plain language of the sentence.
2. A Brief Analysis of the Circumstances
Plaintiff argues that the Court must look beyond the plain language of the Lease to the
circumstances of its formation to see that the resulting interpretation that all utility charges would
be addressed through the CAM costs is ambiguous. Plaintiff cites the Vermont Supreme Court’s
decision in Isbrandtsen v. N. Branch Corp. and its progeny for the principle that even if the
language of the agreement appears unambiguous, the Court may look at circumstances
surrounding contract formation that would demonstrate ambiguity. Isbrandtsen, 150 Vt. at 578–
79.
As a preliminary issue, this investigation into the circumstances is only supported when
the agreement could support a different interpretation. Id. at 579. As indicated above, the Court
does not find the Plaintiff’s interpretation of Section 12(b) to be supported by the syntax or plain
meaning of the phrase. Nevertheless, the Court has reviewed the circumstances proffered by
Plaintiff as there is some question as to whether the Court’s syntax and interpretation analysis
automatically shuts down an analysis of circumstances, or if the circumstances should always be
considered to highlight a substantive ambiguity belied by a facial consistency. See id. 579–80
9
(describing the interwoven process of contract interpretation between plain language,
circumstances, and canons of construction). Given that the Court has relied, in part, on a canon
of construction to explain its analysis, it would be remiss if it abdicated further circumstance-
based analysis.
To that end, Plaintiff’s primary argument relies upon the initial contract formation
documents and correspondence. These documents show: (1) that Plaintiff’s initial offer
contained language that made the utilities Defendants’ responsibility; (2) that the initial draft of
the contract did not contain the adverbial phrase directing payment through the CAM cost
provisions; and (3) correspondence from Defendants that indicate general agreement with the
provisions as proposed and the addition of the phrase during the contract editing process. The
inference that Plaintiff seeks from these facts is to show that it was not the intent of the parties to
run the utilities through the CAM cost process but rather that the language evolved from what
might be colloquially classed as sloppy drafting, where one limited modification changed the
meaning of the entire clause.
In response, Defendants bring forward the fact that the utilities at the time of contract
formation were run through a single meter. Plaintiff objects to this fact on technical grounds, but
the primary objection is that the utilities were either capable of being separately metered as
installed (electricity) or could have been passed along to the Defendants (district heat).
The Court does not find any of the circumstances compelling or requiring a different
interpretation of Section 12(b). Plaintiff’s arguments, at best, demonstrate that the parties could
have allocated the expenses in a different manner than Section 12(b) reads. The Lease could
have required Defendants to put electric in its own name and specified that Plaintiff would pay
the City of Montpelier directly for any district heat expenses. But the Lease does not say any of
this. In fact, a similar argument could be made about the allocation of property taxes in the
CAM costs. In this respect, mere possibility does not make probability.
Whether fully intended or not, the parties, both sophisticated business actors with the
assistance of counsel, amended the earlier drafts of the Lease to modify how utilities would be
paid. While Plaintiff now claims that it did not intend this interpretation, the circumstances only
support a finding of unilateral mistake, and they do not support the type of mutual mistake that
would require a retroactive interpretation obligating Defendants from day-one of the Lease to