Court of Appeals of Arizona, First Division, Department D
BLUE SKY INTERNATIONAL, INC., an Arizona corporation dba BLUE SKY MANAGEMENT; BLUE SKY MANAGEMENT, a sole proprietorship, Plaintiffs/Appellants,
GRAND CANYON EDUCATION, INC., formerly known as SIGNIFICANT EDUCATION, INC., Defendant/Appellee.
Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County Cause No. CV2012-000064 The Honorable Robert H. Oberbillig, Judge
Law Offices of Stephen B. Manion, Stephen B. Manion Attorney for Plaintiffs/Appellants
Schern Richardson Finter Decker, PLC, Michael A. Schern and Mark A. Hanson Attorneys for Defendant/Appellee
MICHAEL J. BROWN, Judge
¶1 Blue Sky Management ("Blue Sky") appeals the superior court's dismissal of its complaint against Grand Canyon Education, Inc. ("Grand Canyon"). For the following reasons, we vacate the dismissal order in part and remand for further proceedings.
¶2 In March 2007, Blue Sky entered a Financial Advisor Agreement ("the agreement") with Grand Canyon's predecessor, Significant Education (hereinafter referred to as Grand Canyon). Pursuant to the agreement, Blue Sky agreed to act as Grand Canyon's "financial advisor and business development consultant" and utilize Blue Sky's "relationships in the banking industry" to introduce Grand Canyon to potential lenders. In exchange for Blue Sky's services, the agreement provided that Grand Canyon would pay a $17, 500 retainer fee and, in the event Grand Canyon obtained a loan from a Blue Sky "source, " Grand Canyon would pay "an amount in cash equal to ½ of 1 Percent (.005) of the gross transaction amount[.]"
¶3 A few months after entering the agreement, Grand Canyon obtained a loan from Bank of America, a Blue Sky source, for $6, 000, 000 and paid Blue Sky the corresponding $30, 000 fee. In April 2009, Grand Canyon obtained another loan from Bank of America for $25, 675, 000 (the 2009 loan) and paid Blue Sky the corresponding $128, 375 fee.
¶4 In April 2011, Grand Canyon entered an "Amended and Restated Loan Agreement" ("amended loan agreement") with Bank of America. Pursuant to the amended loan agreement, the maturity date for the 2009 loan was extended from April 2014 to March 2016. In addition, the amended loan agreement provided Grand Canyon with a $50, 000, 000 revolving line of credit and "standby letters of credit" up to $10, 000, 000 (the "revolver loan"). As consideration for the revolver loan, Grand Canyon paid a nonrefundable fee of $200, 000 and also agreed to pay an "unused commitment fee" on "any difference between" the $50, 000, 000 line of credit and the "outstanding amounts actually advanced" in the amount of .25% per year. The maturity date for the revolver loan is March 2016.
¶5 Upon discovering that Grand Canyon had obtained the revolver loan, Blue Sky demanded a $250, 000 fee, which Grand Canyon refused to pay. Blue Sky then filed a complaint alleging Grand Canyon breached the agreement. Grand Canyon eventually moved to dismiss the complaint, arguing Blue Sky's claims were contrary to the express and unambiguous terms of the agreement. Following oral argument on the motion, the superior court dismissed the complaint with prejudice. Blue Sky timely appealed.
¶6 Blue Sky contends the superior court erred by dismissing its complaint. Specifically, Blue Sky argues that the fee provision of the agreement extends to the revolver loan.
¶7 We review a superior court's ruling on a motion to dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012) . Likewise, we review de novo a superior court's determination whether a contract term is ambiguous. Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 395, ¶ 11, 87 P.3d 81, 83 (App. 2004) . Because "the question whether written language is 'reasonably susceptible' to the meaning asserted is a matter of law, " the dismissal of a complaint is appropriate when the written language underlying the complaint's claims "is not reasonably susceptible ...