text:
    Lee E. BAKER Jr., Appellant, v. Kenneth M. DUFFUS, Appellee.
    Supreme Court No. S-16427
    Supreme Court of Alaska.
    May 17, 2019 Rehearing Denied June 20, 2019
    Steven Jones, Jones Law Group, LLC, Anchorage, for Appellant.
    Adam W. Cook, Birch Horton Bittner & Cherot, Anchorage, for Appellee.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

After a limited liability company and its individual members failed to make payments on a real estate loan, the lender sued. One member, Kenneth Duffus, cross-claimed against a second member, Lee Baker, Jr., alleging breach of contract and tort claims related to the management of the business. Baker counterclaimed against Duffus, also alleging breach of contract and tort claims. After several years of litigation, only the claims by and between Duffus and Baker remained; the superior court granted partial summary judgment to Duffus, finding that the statutes of limitation barred Baker's counterclaims. A trial jury found against Baker on Duffus's breach of contract and tort claims, and awarded damages to Duffus. Baker appeals the grant of summary judgment and a number of procedural issues from the trial. Because it was error to conclude that Baker's claims were not compulsory counterclaims, thus changing the statutes of limitation analysis, we reverse the superior court's grant of summary judgment, vacate the judgment, and remand for a new trial on both Duffus's cross-claims and Baker's counterclaims.

II. FACTS AND PROCEEDINGS

A. Facts

Lee Baker, Jr., Lynn Lythgoe, and Kenneth Duffus are former business associates. They met in 2004, discussed developing residential property in Anchorage, and established Harvest Properties, LLC to purchase and develop a property. The LLC members were experienced in fields related to real estate development: Baker owned a construction company and was in charge of financing; and Duffus either had incorporated or was president of two engineering firms and was in charge of engineering.

The LLC members intended to purchase property referred to as Prominence Pointe, subdivide it into smaller residential lots, and sell the lots. Harvest obtained a $4.5 million loan from First National Bank Alaska (FNBA) to purchase the property, and the LLC members personally guaranteed the loan. But the Prominence Pointe project was never completed and Harvest was unable to make its required payments to FNBA.

B. Proceedings

On July 10, 2007, FNBA sued Harvest and the three LLC members in superior court after Harvest failed to make payments. Duffus answered FNBA's complaint on September 28; Baker answered on October 8. Later that month Duffus filed an amended answer and cross-complaint against Baker and Lythgoe. In his cross-complaint Duffus alleged that Baker and Lythgoe had failed to make required capital contributions to Harvest and that FNBA should therefore obtain recovery only from Harvest, Lythgoe, and Baker. Duffus also sought judgment against Baker and Lythgoe individually, seeking equitable contributions from them in the event that he paid more than his pro rata share of the FNBA debt.

Baker answered the cross-complaint a year later, in November 2008. He asserted that Duffus's cross-complaint failed to state a claim for relief and that individual members of Harvest could not sue to enforce capital contribution obligations. Baker amended his answer two months later to add claims against FNBA.

In late 2010 FNBA entered into settlements with Baker and Duffus, with the parties stipulating to dismissals of claims and FNBA's withdrawal from the litigation. Lythgoe was dismissed from the proceedings following his Chapter 11 bankruptcy. Harvest was later dismissed as a party during the trial between Duffus and Baker.

In April 2012 the parties stipulated to stay the case pending the resolution of unrelated criminal charges against Baker. At a status hearing in April 2013, the superior court scheduled trial for April 2014.

In October 2013 Duffus moved to amend his cross-complaint, adding additional cross-claims for breach of contract, breach of the duty of good faith, breach of the fiduciary duty of care, breach of the duty of loyalty, conversion, and unfair trade practices. Baker opposed the motion, arguing the new cross-claims made "an entirely new lawsuit based on entirely different theories than the original cross-claims." In December the superior court granted Duffus's motion. Baker answered the amended cross-complaint and added new counterclaims in February 2015, over a year after Duffus filed his amended cross-complaint. Baker alleged breach of fiduciary duty, breach of the duty of good faith, fraudulent misrepresentation, and unfair trade practices against Duffus.

In March 2015 Duffus moved to dismiss Baker's counterclaims pursuant to Alaska Civil Rule 12(b)(6), arguing that all of Baker's claims were barred by the relevant statutes of limitation. The court denied the motion in January 2016.

In February 2016 Duffus moved for summary judgment based upon the statutes of limitation. Baker opposed summary judgment, arguing that his counterclaims related back to the filing of FNBA's original complaint in 2007 or "at the minimum" to Duffus's 2007 cross-complaint. The superior court granted Duffus's motion in May, ruling that the counterclaims did not relate back to either the original FNBA complaint or Duffus's 2007 cross-complaint because they did not satisfy the compulsory counterclaims test and that the statutes of limitation on all four of Baker's counterclaims had run.

At the conclusion of a six-day trial, the jury returned a special verdict finding Baker liable for breach of contract, breach of the covenant of good faith and fair dealing, breach of the fiduciary duty of care, conversion, and unfair or deceptive acts or practices. The jury awarded damages of $170,917 for Baker's breach of contract; $174,466.67 for breach of the covenant of good faith; and $300,000 for breach of the fiduciary duty of care. The superior court entered a final judgment for $1,228,170.64, which included the jury's award, treble damages under the Unfair Trade Practices and Consumer Protection Act (UTPA), prejudgment interest, attorney's fees, and costs.

Baker appeals the grant of summary judgment and the court's decisions on a number of procedural issues.

III. STANDARD OF REVIEW

"We review a grant of summary judgment de novo." Interpreting the Alaska Civil Rules "presents a question of law that we review de novo." "[W]e review de novo whether an amendment satisfies Rule 15(c)'s requirements for relation back."

IV. DISCUSSION

A. It Was Error Not To Determine Whether Baker's 2015 Counterclaims Were Compulsory To Duffus's 2013 Amended Cross-Complaint.

The superior court granted Duffus's motion to amend his cross-complaint in December 2013. Duffus's amendment gave Baker the right to respond to the new cross-claims, including the right to bring any claims against Duffus that were compulsory to the newly asserted cross-claims. Baker's answer for the first time asserted counterclaims against Duffus. In response, Duffus moved to dismiss all of Baker's counterclaims as untimely because their respective statutes of limitation had run. After his motion to dismiss was denied, Duffus moved for summary judgment on the same grounds.

In ruling on the summary judgment motion, the superior court considered only whether Baker's claims were compulsory to the 2007 FNBA complaint and Duffus's 2007 cross-claim alleging that Baker failed to make capital contributions to Harvest. But the operative pleading at the time of the summary judgment motion was Duffus's 2013 amended cross-complaint. To determine whether Baker's claims were permitted as compulsory counterclaims, the court needed to analyze whether they were compulsory to the cross-claims in Duffus's 2013 amended cross-complaint.

Whether counterclaims are compulsory is a question of law. Alaska Civil Rule 13 governs counterclaims and cross-claims. Under Rule 13(a) a counterclaim is compulsory if it arises out of the same transaction or occurrence as the opposing party's claim. Claims arise out of the same transaction or occurrence if there is a " 'logical relationship' between the claims." To determine whether claims share a logical relationship we consider whether one party's ability to recover his or her alleged damages "depend[s] on the success or failure of [the other party's] claims" and whether "a decision on [the] counterclaims was ... necessary to the result in [the original] suit."

Baker's 2015 counterclaims are logically related to Duffus's 2013 cross-claims. In his 2013 cross-claims Duffus alleged that Baker failed to make contractually required capital contributions, breached the fiduciary duty of care as manager of the LLC, breached the duty of loyalty, and that Baker's actions amounted to conversion and UTPA violations. These claims all related to Baker's management responsibilities and duties with respect to the LLC, and can only be read to assert that Baker caused the Prominence Pointe project's ultimate failure and the alleged harm to Duffus that resulted.

Baker asserted in his 2015 counterclaims that Duffus caused the Prominence Point project's failure because of his negligent engineering and false representations that the property could be subdivided into more individual lots than was feasible. In his opposition to Duffus's motion for summary judgment, Baker also argued that his 2015 counterclaims related back and were in response to several of the cross-claims from Duffus's 2013 pleading. Thus, Duffus's 2013 cross-claims and Baker's 2015 counterclaims meet the logical-relationship test because they rely on opposing theories of causation. Because each party's ability to recover damages "depend[s] on the success or failure of [the other's] claim," their claims are compulsory to each other.

But the superior court never considered whether Baker's counterclaims were compulsory to Duffus's 2013 cross-claims. It was error for the court to consider only whether Baker's counterclaims were compulsory to FNBA's original claim and Duffus's 2007 cross-complaint. We therefore vacate the court's grant of summary judgment prohibiting Baker from asserting his counterclaims against Duffus.

B. Baker's Compulsory Counterclaims Relate Back.

1. Rule 15(c) is self-executing.

Because it did not consider whether Baker's counterclaims were compulsory to the proper pleadings, the superior court did not determine whether they related back. To determine whether Baker's counterclaims relate back to Duffus's 2013 cross-claims, it is necessary to look to Alaska Civil Rule 15(c), which governs when an amended pleading relates back.

Federal Rule of Civil Procedure 15(c) states: "An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that [is compulsory]." Alaska Rule 15(c) uses similar language: "Whenever the claim or defense in the amended pleading [is compulsory], the amendment relates back to the date of the original pleading." We have not previously had occasion to consider precisely how Alaska Rule 15(c) operates, but the United States Supreme Court has held that Federal Rule 15(c) is self-executing. Additionally, the use of the word "whenever" in Alaska Rule 15(c) indicates that it applies automatically in such circumstances. Therefore, by its terms, Rule 15(c) is self-executing and will automatically relate back a claim or defense if it is compulsory.

We determined that Baker's counterclaims were compulsory to Duffus's 2013 cross-claims because they were logically related. And they were logically related because they arose from the same transaction or occurrence. Baker's counterclaims therefore automatically relate back to Duffus's 2013 cross-claims because they were compulsory.

2. Baker's counterclaims are not barred by statutes of limitation.

Because Duffus originally filed suit against Baker in 2007, any statutes of limitation applicable to his claims and Baker's subsequent defenses and counterclaims would have run by 2009 or 2010. For Baker to "escape the bar of the ... statute[s] of limitation[ ]," his counterclaims must relate back to Duffus's original 2007 cross-complaint. We established that Baker's counterclaims were compulsory and therefore relate back to Duffus's 2013 cross-claims. Whether Baker's counterclaims are barred by the statutes of limitation therefore depends upon whether Duffus's 2013 cross-claims relate back to his original 2007 cross-complaint.

Like determining whether counterclaims are compulsory, determining whether amended pleadings relate back is a question of law that we review de novo. Comparing Duffus's 2013 amended cross-complaint with his original 2007 cross-complaint demonstrates that it relates back. Duffus's 2007 cross-complaint primarily focused on the operating agreement and each LLC member's duty to make capital contributions to Harvest. His 2013 amended cross-complaint expanded on these 2007 claims not only by incorporating the original claim that Baker failed to make contractually required capital contributions, but also by adding new claims of breach of fiduciary duty, breach of the duty of loyalty, and other general conversion and UTPA claims that specifically focused on the LLC's losses allegedly caused by Baker. Both of Duffus's pleadings focused on the transactions or occurrences that caused the LLC's losses; Duffus's 2013 cross-claims therefore relate back to his 2007 original cross-complaint.

Because Baker's counterclaims relate back to Duffus's 2013 amended cross-complaint, and Duffus's 2013 amended cross-complaint relates back to his original 2007 cross-complaint, Baker's counterclaims likewise relate back to Duffus's original 2007 cross-complaint. Relating back to the 2007 cross-complaint allows Baker to "escape the bar of the ... statute[s] of limitation[ ]."

V. CONCLUSION

We REVERSE the superior court's grant of summary judgment on Baker's claims because it was error to determine that his 2015 counterclaims were not compulsory to Duffus's 2013 cross-claims, VACATE the judgment, and REMAND for a new trial because both Duffus's 2013 cross-claims and Baker's 2015 counterclaims relate back to Duffus's original 2007 cross-complaint.

      See AS 45.50.531(a).

      Baker's other points on appeal relate to pretrial and trial rulings. Because we vacate summary judgment and hold that Baker's counterclaims relate back, these issues have been rendered moot.

      Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008) (citing Miller v. Safeway, Inc. , 170 P.3d 655, 658 (Alaska 2007) ).

      Ellingstad v. State, Dep't of Nat. Res. , 979 P.2d 1000, 1004 (Alaska 1999) ; see also City of Kodiak v. Parish , 986 P.2d 201, 202 (Alaska 1999).

      Sellers v. Kurdilla , 377 P.3d 1, 7 (Alaska 2016).

      See Alaska R. Civ. P. 15(a) (requiring party to plead in response to amended pleading either within time remaining to respond to original pleading or within 10 days of service of amended pleading, whichever is longer, unless the court orders otherwise); Thompson's Estate v. Mercedes-Benz, Inc. , 514 P.2d 1269, 1272 (Alaska 1973) (holding that adding cross-complaint to original answer qualifies as amended pleading governed by Rule 15 ).

      See Alaska R. Civ. P. 15(a) (containing nearly identical language to Fed. R. Civ. P. 15(a) ); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (3d ed. 2018) ("A pleading that has been amended under [Federal Rule of Civil Procedure] 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified."); Thompson's Estate , 514 P.2d at 1272 (finding that cross-claim amended original answer and treating cross-claim as amended pleading under Alaska Civil Rule 15 ); see also Musser v. Wells Fargo Home Mortg., Inc. , No. S-12155, 2008 WL 1914375, at *3 (Alaska Apr. 30, 2008) (citing 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) ) (acknowledging in an unpublished decision that "an amended complaint supersedes earlier pleadings").

      See Alaska R. Civ. P. 13, 15(c).

      See Ellingstad , 979 P.2d at 1004.

      See Alaska R. Civ. P. 13.

      Alaska R. Civ. P. 13(a) :
      Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

      Domke v. Alyeska Pipeline Serv. Co. , 137 P.3d 295, 301 (Alaska 2006) (quoting Ellingstad , 979 P.2d at 1010 ).

      Id. at 302.

      Id.

      See Recreational Data Servs. Inc. v. Trimble Navigation Ltd. , 404 P.3d 120, 132-36 (Alaska 2017) (discussing the causation element of breach of contract and breach of fiduciary duty claims).

      Domke , 137 P.3d at 302.

      Alaska R. Civ. P. 15(c) ; see also MacDonald v. Riggs , 166 P.3d 12, 17-18 (Alaska 2007) ("[I]f [a] counterclaim is compulsory, it will relate back."); Domke , 137 P.3d at 301 ("A compulsory counterclaim relates back ... a permissive counterclaim does not.").

      Fed. R. Civ. P. 15(c)(1)(B).

      Alaska R. Civ. P. 15(c).

      Krupski v. Costa Crociere S. p. A. , 560 U.S. 538, 553, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) ("Rule [15(c) ] mandates relation back once the Rule's requirements are satisfied; it does not leave the decision whether to grant relation back to the district court's equitable discretion."); see also Sellers v. Kurdilla , 377 P.3d 1, 6 n.4 (Alaska 2016) (quoting affirmatively Krupski , 560 U.S. at 553, 130 S.Ct. 2485 ).

      See Alaska R. Civ. P. 13(a) ; Domke , 137 P.3d at 301-02.

      See AS 45.50.531(f) (establishing a two-year statute of limitations for UTPA claims); AS 09.10.053 (establishing a three-year statute of limitations for breach of contract and liability claims); AS 09.10.070(a)(3) (establishing a two-year statute of limitations for conversion and other general tort claims).

      See Magestro v. State, 785 P.2d 1211, 1213 (Alaska 1990) ("Since the State properly raised the statute of limitations defense, we must next determine whether the proposed amendments relate back under Rule 15(c) and thus escape the bar of the ... statute of limitations.").

      Kurdilla , 377 P.3d at 7.

      Magestro, 785 P.2d at 1212.


source: Caselaw Access Project

author: JUSTICE LOPEZ, opinion of the Court:

license: Public Domain

text:
    Marcie NORMANDIN, Plaintiff/Appellant, v. ENCANTO ADVENTURES, LLC, et al., Defendants/Appellees.
    No. CV-18-0200-PR
    Supreme Court of Arizona.
    Filed May 17, 2019
    David L. Abney (argued), Ahwatukee Legal Office, PC, Phoenix; Matthew L. McClellan, The McClellan Law Firm PLC, Phoenix, Attorneys for Marcie Normandin
    Joseph L. Brownlee (argued), Joshua T. Greer, Moyes Sellers & Hendricks, Ltd., Phoenix, Attorneys for Encanto Adventures, LLC
    JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES TIMMER, BOLICK, GOULD, and PELANDER (RETIRED) and JUDGE ESPINOSA joined.

      Vice Chief Justice Robert Brutinel has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Philip G. Espinosa, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter.

   JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether Arizona's recreational use statute, A.R.S. § 33-1551, immunizes Encanto Adventures LLC ("Encanto") from liability in a simple negligence action for injuries Marcie Normandin, a recreational user, sustained after falling in Encanto Park. We hold that Encanto is not a "manager" of land used for recreational purposes and therefore it is not immune from liability under the statute.

I.

¶2 Encanto operates an amusement park in an area of Encanto Park known as Picnic Island. In 1991, the City of Phoenix (the "City") and Encanto's predecessor executed a concessionaire agreement (the "Agreement") to establish the amusement park wherein the City licensed certain exclusive rights to construct, maintain, and operate children's rides within a fenced-in area of Picnic Island known as Enchanted Island. The Agreement also allowed Encanto's predecessor to use an unfenced portion of Picnic Island adjacent to Enchanted Island known as the "piñata area."

¶3 There is no dispute that the Agreement governs Encanto's relationship with the City. Encanto's owner testified in a deposition that for twenty-five years, pursuant to the Agreement, he maintained Picnic Island, including the piñata area, by patrolling, maintaining, inspecting, preparing, and grooming the grounds. Although Encanto has been responsible for the piñata area's maintenance, it does not have exclusive rights to use the piñata area, nor does it otherwise control public access to it.

¶4 Normandin paid Encanto $287 for a "Pete's Package" to host her daughter's first birthday party at Enchanted Island. Pete's Package included all-day-ride wristbands for partygoers, as well as tables and a four-hour pavilion reservation. Although Encanto allowed customers to bring a piñata to their party if they broke it outside the fenced-in Enchanted Park, the package agreement explicitly stated that Encanto would not provide a piñata for the party and that no portion of Normandin's payment would be refunded if she declined to participate in a piñata activity.

¶5 Normandin brought a piñata to the party and Encanto accommodated her, as it did its other customers, by directing her to the public piñata area adjacent to the fenced-in Enchanted Park. An Encanto employee also led Normandin to the piñata area, hung the piñata for her from a tree outfitted for such purpose, and raised and lowered the piñata as the partygoers tried to break it.

¶6 While walking through the piñata area, Normandin fell, breaking her ankle and injuring her arm. She alleged she fell because she stepped into a sprinkler-head divot or depression covered by grass. In her complaint, Normandin pleaded a single count of premises liability, a simple negligence claim, against the City and Encanto. Encanto and the City moved for summary judgment based on the recreational use immunity provided by § 33-1551(A). The trial court granted the motions.

¶7 The court of appeals affirmed the trial court's summary judgment in favor of the City and Encanto, concluding that (1) Encanto is immune as a "manager" under § 33-1551(A) ; (2) Normandin was a "recreational user" under § 33-1551(A) ; (3) the statute does not violate the anti-abrogation clause of article 18, section 6 of the Arizona Constitution (as applied to Encanto); (4) the statute does not violate the equal privileges and immunities clause of article 2, section 13 of the Arizona Constitution (as applied to Encanto); and (5) the statute is not an unconstitutional special law as applied to managers of defined land in compliance with article 4, part 2, section 19(13), (20) of the Arizona Constitution. See generally Normandin v. Encanto Adventures LLC , 245 Ariz. 67, 425 P.3d 243 (App. 2018).

¶8 We granted review because the scope of immunity under § 33-1551 presents a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution. Because we resolve this case on the dispositive issue of Encanto's status as a "manager" under the statute, we need not address Normandin's other statutory and constitutional arguments. See, e.g. , Hayes v. Cont'l Ins. Co. , 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994) (noting that "if possible we construe statutes to avoid unnecessary resolution of constitutional issues"). Normandin does not contest the City's immunity under the statute.

II.

¶9 "We review the interpretation of a statute de novo." Glazer v. State , 237 Ariz. 160, 163 ¶ 12, 347 P.3d 1141, 1144 (2015). Because § 33-1551(A)"limits common-law liability, we must construe it strictly." Ward v. State , 181 Ariz. 359, 362, 890 P.2d 1144, 1147 (1995) ; see also Smith v. Ariz. Bd. of Regents , 195 Ariz. 214, 216 ¶ 9, 986 P.2d 247, 249 (App. 1999) ("[W]e must construe [ § 33-1551 ] strictly to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action."). Summary judgment is appropriate only if "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo, and we view the evidence in the light most favorable to the non-moving party. Glazer , 237 Ariz. at 167 ¶¶ 28-29, 347 P.3d at 1148.

¶10 Arizona's recreational use statute, § 33-1551(A), provides:

A public or private owner, easement holder, lessee, tenant, manager or occupant of premises is not liable to a recreational or educational user except on a showing that the owner, easement holder, lessee, tenant, manager or occupant was guilty of wilful, malicious or grossly negligent conduct that was a direct cause of the injury to the recreational or educational user.

Encanto's sole claim to immunity under § 33-1551(A) rests on its asserted status as a "manager" of the piñata area at the time of Normandin's fall. This claim is unavailing. We are unpersuaded by Encanto's reasoning that its mere maintenance of the piñata area qualifies it as a "manager" under § 33-1551(A), and we also find the court of appeals' reliance on a dictionary definition of "manager" insufficient to discern its proper statutory meaning. Normandin , 245 Ariz. at 72-73 ¶¶ 13-14, 425 P.3d at 248-49. As discussed below, we conclude that a "manager," when read in the context of the statute and considering the purpose of recreational use immunity, is someone imbued with authority to control the public's access to land for recreational use.

¶11 We first examine the text of the statute to determine the meaning of "manager." See, e.g. , Wilks v. Manobianco , 237 Ariz. 443, 446 ¶ 8, 352 P.3d 912, 915 (2015) ("When interpreting a statute, our primary goal is to give effect to the legislature's intent," and "[w]e derive that intent by examining the statute's language; if the language is ambiguous, we look to the statute's history, context, consequences, and purpose."(citation omitted)). We do not determine the meaning of a word in a statute in isolation; instead, "a statutory term is interpreted in context of the accompanying words." Estate of Braden ex rel. Gabaldon v. State , 228 Ariz. 323, 326 ¶ 13, 266 P.3d 349, 352 (2011) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195-96 (2012) (discussing the noscitur a sociis canon and stating that it "especially holds that 'words grouped in a list should be given related meanings' " (quoting Third Nat'l Bank in Nashville v. Impac Ltd. , 432 U.S. 312, 322, 97 S.Ct. 2307, 53 L.Ed.2d 368 (1977) )).

¶12 Section 33-1551 does not define "manager," but it provides a critical contextual clue as to the term's meaning. Notably, every other person or entity granted recreational use immunity under § 33-1551(A) -"public or private [land] owner, easement holder, lessee, tenant, ... or occupant of premises"-possesses a measure of authority and control over access to property in which that person or entity holds an interest. See Ward , 181 Ariz. at 362, 890 P.2d at 1147 (holding that a party is not an "occupant" for purposes of § 33-1551(A) unless they can admit or deny access to the land); Champie v. Castle Hot Springs Co. , 27 Ariz. 463, 468, 233 P. 1107 (1925) ("Private property is, in its nature and purpose, a monopoly .... One of the most cherished principles of our common law, to use the old phrase, is that 'a man's house is his castle, from which he may exclude any and all persons at will ....' "); Restatement (Second) of Prop.: Landlord & Tenant § 6.2 cmts. a-b (Am. Law Inst. 1977) (noting tenants and lessees have the right to possess the leased property free of third-party interference); Restatement (First) of Prop. § 450 cmt. h (Am. Law Inst. 1944) (noting that easement holders have a property interest in the easement and are protected against interference from third parties); cf. A.R.S. § 33-1310(16) (" 'Tenant' means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others."). Thus, in its statutory context, "manager" connotes a person or entity with the power to exclude or otherwise control access to property. Any definition of "manager" that includes persons or entities lacking such authority is incongruous with the most relevant characteristic of the other classes listed in § 33-1551(A).

¶13 Because the text alone is not dispositive, we also consider the purpose of the statute to assess its meaning. We recognized in Ward that the recreational use statute's purpose is "to encourage landowners and others to open lands to recreational users and to continue to keep the lands open." Ward , 181 Ariz. at 362, 890 P.2d at 1147 ; see also Dickey ex rel. Dickey v. City of Flagstaff , 205 Ariz. 1, 2 ¶ 7, 66 P.3d 44, 45 (2003). In Ward , plaintiffs sued the State of Arizona alleging that it (through the Arizona Game and Fish Commission) negligently caused a boating accident on Apache Lake that resulted in their injuries. See Ward , 181 Ariz. at 361, 890 P.2d at 1146. The State-which had an agreement with the United States Forest Service to administer a maritime navigational aid program on the lake-argued it was immune from liability because it was an "occupant" of Apache Lake for purposes of § 33-1551(A). Id. at 361-62, 890 P.2d at 1146-47. The trial court granted, and the appellate court affirmed, the State's motion for summary judgment. Id. at 361, 890 P.2d at 1146. On review, we reversed because the State did not qualify as an "occupant" under the statute. Id. at 362-63, 890 P.2d at 1147-48. Because "occupant" was not defined in § 33-1551, we considered the statute's purpose to encourage owners to open property for recreational use and determined that the State did not meet that purpose because it lacked authority to control access to Apache Lake-it merely had an agreement to create and maintain a system of navigational aids. Id.

¶14 Here, Encanto's expansive definition of "manager," like the State's proposed definition of "occupant" in Ward , fails to advance the purpose of the recreational use statute because Encanto does not have the authority to open, or for that matter to close, the piñata area for recreational use. See Stramka v. Salt River Recreation, Inc. , 179 Ariz. 283, 286, 877 P.2d 1339, 1342 (App. 1994) (reasoning that the purpose of the recreational use statute is not fulfilled by granting immunity to a concessionaire who does not open land for public use but merely uses it to generate business profits for itself). Our decision in Ward forecloses Encanto and the court of appeals' expansive definition of "manager."

¶15 The legislative history of § 33-1551 bolsters our conclusion that Encanto's broad definition of "manager" is incongruent with the text and purpose of the statute. The term was added to the statute in 2011 to clarify that immunity applies to "managers" just as it applies to "landowners" and "lessees." Ariz. State Senate Fact Sheet for S.B. 1229, 50th Leg., 1st Reg. Sess. (Apr. 14, 2011)

(stating that the amendment "[c]larifies that tenants and managers of public and private land are among those landowners and lessees that are not liable to a recreational or educational user who engages in prescribed activities on their premises"). The 2011 amendments also modified the statutory definition of "recreational user" to include "persons engaging in off-highway vehicle, off-road recreational motor vehicle, all-terrain vehicle, other outdoor recreational pursuits and operation of aircraft" (each of which often occur on state land) and clarified that the State Land Department's issuance of recreational permits or "off-highway vehicle indicia" to recreational users for such purposes did not impact the statute's immunity provisions. Id. Thus, to the extent the legislative history analogizes "managers" to "landowners" and "lessees" and otherwise associates the term with the State Land Department's management of state lands, it refutes any notion that "manager" was included to extend recreational use immunity to someone who lacks authority to open land for recreational use.

¶16 Here, applying our definition of "manager," we conclude that Encanto does not qualify as such under the recreational use statute. Encanto contends that it is a "manager" because it patrols, maintains, inspects, prepares, and grooms the piñata area. But Encanto's relationship with the City belies Encanto's claim to any managerial status; it merely maintains the piñata area and pays the City as part of its concession. It is also clear from paragraph 41 of the Agreement that Encanto is an independent contractor-a licensee and not a lessee-and the parties have no other relationship beyond the contours of the Agreement. Indeed, "manager" is never mentioned in the Agreement. More importantly, although Encanto is required to maintain the premises, including the piñata area, as noted above, it lacks any authority to open or close the piñata area for recreational use. The City, not Encanto, has this authority. Finally, if Encanto's broader definition of "manager" were correct, any independent contractor (e.g., landscaper, sprinkler repairer, tree-trimmer, or groundskeeper) would be a "manager," thus enlarging the class of persons granted immunity beyond the purpose of the statute.

III.

¶17 The text, purpose, and legislative history of § 33-1551, our decision in Ward , and our imperative to narrowly construe the statute, support our conclusion that a person or entity does not qualify as a "manager" in the absence of authority to open or close land for recreational use. Accordingly, we reverse the trial court's summary judgment in favor of Encanto and remand for further proceedings consistent with this opinion. We vacate paragraphs 1 and 11 through 42 of the court of appeals' opinion pertaining to Encanto but leave intact the part of the opinion affirming summary judgment for the City of Phoenix.


text:
    CITY OF GOLDEN, Colorado and Jeff Hansen, in his official capacity as Finance Director of the City of Golden, Colorado, Petitioners v. SODEXO AMERICA, LLC, Respondent.
    Supreme Court Case No. 17SC735
    Supreme Court of Colorado.
    May 20, 2019
    Attorneys for Petitioners: Williamson & Hayashi, LLC, David S. Williamson, Mathew M. Munch, Boulder, Colorado
    Attorneys for Respondent: Silverstein & Pomerantz LLP, Neil I. Pomerantz, Mark E. Medina, Michelle Bush, Denver, Colorado
    Attorneys for Amicus Curiae Colorado Department of Revenue: Philip J. Weiser, Attorney General, Russell D. Johnson, Assistant Solicitor General, Denver, Colorado
    Attorneys for Amici Curiae Colorado Higher Education Institutions: Philip J. Weiser, Attorney General, Stephanie Scoville, Senior Assistant Attorney General, Denver, Colorado, Jeremy Hueth, Special Assistant Attorney General, Denver, Colorado
    Attorney for Amicus Curiae Colorado Municipal League: Dianne M. Criswell, Denver, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 Imagine that two students enter a dining hall at the Colorado School of Mines in the City of Golden. One pays with cash; the other swipes a "BlasterCard" to use a meal-plan credit. Sodexo, Mines' food service provider, collects sales tax on the cash transactions and remits the tax to Golden. Not so when a student swipes a BlasterCard to use a meal-plan credit. That disparity in tax treatment culminated in this case.

¶2 A little background information about BlasterCards helps to flesh out the legal dispute. During the time at issue, Mines loaded each meal-plan student's BlasterCard, which is a student's identification card, with an individual meal plan choice. To use their meal plans, students swiped their BlasterCards at a dining facility. Sodexo had nothing to do with loading the students' BlasterCards with their meal plans-that was all Mines. Sodexo also had no way of knowing if a student had fully paid for his or her meal plan, and Sodexo had no way of enforcing collections against a student who hadn't fully paid. Again, that was all taken care of by Mines. But neither Mines nor Sodexo collected any sales tax on these meal-plan meals.

¶3 When Golden's Finance Department audited Sodexo and discovered that sales tax for these meal plans had not been collected, it issued a sales and use tax assessment. Sodexo protested and lost, so Sodexo appealed to the district court. The court granted summary judgment for Golden, finding that Sodexo had engaged in taxable retail sales directly to Mines' students, rather than tax-exempt wholesale sales to Mines.

¶4 Undeterred, Sodexo appealed again. This time, a unanimous division of the court of appeals reversed the judgment of the district court, concluding that there were two sales transactions at issue: one between Mines and Sodexo, and the other between Mines and its students. The division further concluded that Mines and Sodexo were engaged in tax-exempt wholesale transactions. Accordingly, the division remanded for entry of judgment in Sodexo's favor.

¶5 We granted Golden's request to review the division's decision. But, having done so, we agree with the division that two transactions took place: one between Sodexo and Mines, another between Mines and its students. Like the division below, we conclude that Sodexo sold the meal-plan meals to Mines at wholesale, and, accordingly, these transactions were exempt from taxation under the Code. We therefore affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶6 Mines is a public post-secondary education institution. At all relevant times, it required all students residing in an on-campus residence hall to purchase a meal plan.

¶7 Mines and its students entered into Residence Hall Contracts, which detailed the various meal plans available for purchase and the prices per plan. These contracts also outlined the number of meals included in each meal plan option, as well as the amount of "Munch Money," a declining balance of points loaded onto each student's identification card that was accepted at any on-campus dining facility, apportioned to each plan. Students with meal plans paid Mines directly for the cost of the plans.

¶8 In May 2011, Mines separately contracted with Sodexo to fulfill its obligations to provide meals and food options for its students. Sodexo agreed to "provide food services for [Mines'] students, faculty, staff, employees and guests." "Food services" was defined as "the preparation, service and sale of food, beverages, and select goods, merchandise and other items to be agreed upon by [Mines] and [Sodexo] ... including catering, concessions, retail and meal plans." Mines agreed to purchase meals exclusively from Sodexo that Sodexo would then prepare and serve at Mines' dining facilities. The contract required Sodexo to operate and manage all of Mines' dining facilities using its own employees, not Mines' employees.

¶9 Though Mines delegated the actual food services preparation, service, and sales to Sodexo, it retained much contractual authority over the way Sodexo provided these services. The products Sodexo produced pursuant to the contract became the sole property of Mines. Mines set the prices of the meal plans, and those prices could only change with Mines' prior written approval. Mines also required Sodexo to meet its food quality standards. The contract even included a provision giving Mines the authority to, "at its discretion, require inclusion of certain foods and food supplies, or specific brands in the inventory and menus of [Sodexo]."

¶10 Cash-paying students, faculty, and staff paid Sodexo directly at the register. (And Sodexo collected sales tax from its cash-paying patrons, as required by Golden's Municipal Code.) However, that wasn't the case for the students using meal plans or Munch Money. Receiving payment from those students took two steps.

¶11 Step One: the BlasterCards. As noted, students purchased meal plans and Munch Money from Mines through their Residence Hall Contracts. Each BlasterCard was linked to a student's account and loaded with the student's meal plan and Munch Money balance. Students then swiped their cards to obtain meals at a dining hall or use their Munch Money. Each swipe of a BlasterCard reduced the number of available meals or Munch Money left for the semester.

¶12 Step Two: the invoices. Sodexo provided Mines with reports detailing student participation in the meal plans. Using these reports, Sodexo then invoiced Mines based on the student participation in the meal plans and the per-meal price established in the contract. Those prices were far less than the per-meal prices Mines charged students through their Residence Hall Contracts. And Mines kept the difference.

¶13 Sodexo didn't directly charge the meal-plan students-that responsibility fell to Mines. Mines billed each student at the beginning of the semester for the cost of their tuition, room and board, which included the meal plan, and other fees. And as noted, students paid Mines directly, and those funds were placed into a deposit account where the funds "intermingled" with Mines' other funds. Mines didn't set the students' payments aside for Sodexo. Rather, Mines paid Sodexo monthly from its general deposit account, presuming it had sufficient budgeted funds for this purpose from the State.

¶14 If a student was derelict in paying her meal plan fees under the Residence Hall Contract, then Mines alone had the authority to take action against that student. Mines could place a hold on a student's account or prevent a student from entering a dining facility. Sodexo, on the other hand, had no recourse against a student who failed to pay her meal plan charges. And, Sodexo had no way of knowing whether a student's account was up-to-date or in default.

¶15 Golden audited Sodexo, and in November 2014, it levied a three percent tax amounting to $234,481 covering the period from June 2011 through March 2013. This amount was not based on the amount the students paid Mines for their meal plans; instead, it was based on the lower prices that Mines paid Sodexo. Sodexo protested the assessment. After a hearing, Golden denied Sodexo's appeal through the city's Finance Director, who concluded that Sodexo was involved in taxable retail sales.

¶16 Sodexo filed an appeal in the district court, arguing, in part, that the services Sodexo provided pursuant to its contract with Mines were tax-exempt wholesale transactions under Golden's Municipal Code. Golden countered that Sodexo "is engaged in non-exempt retail sales directly to dining patrons and is not making wholesale sales to [Mines]."

¶17 Both parties moved for summary judgment. The district court ruled for Golden, concluding that Golden established that there was no genuine issue of material fact, and "that there is significant doubt that Sodexo is entitled to [Golden's Municipal Code's] wholesale sales exemption." In coming to this conclusion, the court cited City of Golden v. Aramark Educational Services, LLC , 2013 COA 45, 310 P.3d 262, for the proposition that tax exemptions must be construed narrowly and in favor of the taxing authority. The trial court pointed to two facts that raised doubts as to whether Mines acquired Sodexo's food and food services for resale: (1) Mines didn't obtain physical possession over the food items because the food was solely in Sodexo's possession until served to the meal-plan students, and (2) Mines' purpose in buying food and food services from Sodexo was to fulfill its contractual obligations to the meal-plan students, as set out in the Residence Hall Contracts. Accordingly, the trial court reasoned that because it "must resolve these doubts against the exemption," Sodexo did not meet its burden to establish a genuine issue of material fact supporting its claim for tax exemption.

¶18 A unanimous division of the court of appeals reversed. It reasoned that "consideration is exchanged for food on two occasions: once when a student pays Mines for a meal plan or Munch Money, and again when Mines pays Sodexo periodically based on the number and types of meals provided to [the meal-plan] students." Sodexo Am., LLC v. City of Golden , 2017 COA 118, ¶ 21, --- P.3d ----. The division concluded that Sodexo and the meal-plan students "aren't engaging in a buyer-seller transaction" because, by using their BlasterCards, these students weren't giving Sodexo consideration for the food and services they obtained. Id. at ¶¶ 20-21. Instead, the students were merely reducing the amount of meals or Munch Money available under their meal plan. Id. at ¶ 21. The division then considered what type of sales occur when Mines pays Sodexo for meals: taxable retail sales or tax-exempt wholesale sales? The court of appeals held that Sodexo sells meal plans to Mines at wholesale and, since the Golden Municipal Code expressly exempts wholesale transactions from taxation, Golden's assessment was invalid. Id. at ¶¶ 27-29. The division recognized that its holding conflicted with another division's opinion in Aramark , which held just the opposite-that a different food service vendor for Mines was not entitled to the wholesale exemption. See id. at ¶¶ 34-36.

¶19 Golden filed a petition for certiorari, arguing that Sodexo was engaged in direct retail sales to all students, including those students with meal plans, and therefore was not entitled to the wholesale sales exemption. According to Golden, Mines was just a collection agent-merely receiving money from the students with meal plans and transferring those sums to Sodexo. Sodexo argues that it was engaged in tax-exempt wholesale sales to Mines, not direct retail sales to the meal-plan students.

¶20 We granted certiorari.

II. Analysis

¶21 We begin with a brief recitation of the applicable standard of review and interpretive principles. We then turn to the relevant provisions of Golden's Municipal Code. Focusing on the plain language of these ordinances, we conclude that two transactions occurred here-one between Mines and Sodexo, another between Mines and its students. Then, based on our interpretation of the Code's provisions, we determine that Mines and Sodexo were engaged in wholesale transactions. We ultimately conclude Sodexo was entitled to the wholesale sales exemption.

A. Standard of Review & Interpretive Principles

¶22 This court reviews a trial court's grant of summary judgment de novo. Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP , 2018 CO 54, ¶ 27, 420 P.3d 223, 229 (citing Hardegger v. Clark , 2017 CO 96, ¶ 13, 403 P.3d 176, 180 ). Similarly, the interpretation of a municipal ordinance is a question of law and thus subject to de novo review. Town of Erie v. Eason , 18 P.3d 1271, 1274 (Colo. 2001).

¶23 When interpreting a municipal ordinance, we employ our well-worn tools of statutory interpretation. See MDC Holdings, Inc. v. Town of Parker , 223 P.3d 710, 717 (Colo. 2010). "Our primary task when interpreting local government legislation is to determine and give effect to the intent of the body enacting it." Id. So, we look first to the text of the ordinance, and if it is clear and unambiguous, we apply it as written. Id. "[I]f the language ... is susceptible of more than one reasonable interpretation, and is therefore considered ambiguous," then we may turn to interpretive aids "to help determine which of these reasonable interpretations actually embodies the legislative intent." City & Cty. of Denver v. Expedia, Inc. , 2017 CO 32, ¶ 14, 405 P.3d 1128, 1132 (plurality opinion) (citations omitted). Because we ultimately conclude that the Code is clear and unambiguous, we don't resort to additional constructive canons and interpretive aids.

B. Golden's Municipal Code

¶24 Golden is a home-rule municipality and, as such, has the authority to levy and collect taxes. Golden, Colo. Charter Preamble (2018); see also Colo. Const. art. XX, § 6.

¶25 Golden levies a three percent sales tax on the purchase price of "all sales of tangible personal property and services specified in subsection 3.03.030(a)." Golden, Colo., Municipal Code § 3.03.010(a) (2015). "[S]ales tax" is the "tax to be collected and remitted by a retailer on sales taxed under this Code." Golden, Colo., Municipal Code § 3.02.010 (2015). So, a "sale" by a "retailer" triggers the taxable event.

¶26 The Code defines a "sale" or "purchase" as "the acquisition for any consideration by any person of tangible personal property or taxable services." Id. (emphasis added). The Code specifies that "sale" or "purchase" includes "property and services acquired by ... [t]ransfer ... of title or possession or both to tangible personal property." Id. ("Acquisition" is not expressly defined in the code. See id. ) A "retailer" sells "tangible personal property or services at retail." Id. And a retail sale is defined broadly by what it is not: "[A]ll sales except wholesale sales." Id.

¶27 Subsection 3.03.030(a) of the Code outlines which sales transactions are subject to tax, and it specifically includes "all sales of food, prepared food, or food for immediate consumption." Golden, Colo., Municipal Code § 3.03.030(a)(4) (2015). The Code also exempts certain transactions from sales tax, including wholesale sales. Golden, Colo., Municipal Code § 3.03.040(13) (2015). A wholesale sale is a "sale[ ] to licensed retailers, jobbers, dealers, or wholesalers for resale . Sales by wholesalers to consumers are not wholesale sales." § 3.02.010 (emphasis added). Those latter types of sales would constitute taxable retail sales. See id.

¶28 We've already noted that a "sale" constitutes the taxable event, so we must determine when the "sale" of the meals occurred. See id. A "sale" is completed when one party acquires property, products, or services in exchange for consideration. We know the students obtained their meals at the dining halls. We therefore must determine when the students provided consideration for their meals. See id. Was consideration for the meals exchanged when the students paid Mines for the meal plans, as Sodexo suggests? Or, did the taxable event occur when the students swiped their BlasterCards and physically obtained the meals, as Golden argues?

¶29 We agree with Sodexo and the division below. The "sale" of the meals occurred when the students paid Mines for their meal plans as part of their Residence Hall Contracts. While the students were the ultimate consumers of Sodexo's food and food services, that doesn't establish that the meal-plan students bought their food from Sodexo. Indeed, these students didn't provide any consideration to Sodexo for the meals. All these students did was swipe their BlasterCards at Mines' dining premises. And the students didn't pay or promise to pay Sodexo anything with their swipe. There was no "bargained-for" exchange between Sodexo and the students because Sodexo had no control over the price of the meal plans-it was Mines that the students exchanged consideration with. By the time the students swiped their BlasterCards, they have already paid (or at least promised to pay) Mines for the meals-they did so when they signed their Residence Hall Contracts and selected their meal plan. And Mines paid Sodexo monthly for Sodexo's provision of the meals obtained as part of the meal plans. The "swipe" functioned as nothing more than an accounting mechanism that allowed Mines to track the number of meals that a student had used. Sodexo didn't sell its meals directly to the meal-plan students; it sold the meal-plan meals directly to Mines.

¶30 So, we count two distinct transactions where consideration is exchanged for the meal-plan meals. One, when the students paid Mines for their meal plans pursuant to the Residence Hall Contracts, and two, when Mines paid Sodexo under the monthly invoice. We must now consider what type of transaction occurred between Mines and Sodexo to determine whether the transaction was taxable. Again, we agree with Sodexo and the division below-these were wholesale sales transactions.

¶31 Sodexo purchased, prepared, and served food pursuant to its contract with Mines; Mines sold that prepared food and those services to its students under the Residence Hall Contracts at a higher price than what it paid Sodexo. A wholesale sales transaction occurs when a seller sells a product to a buyer for that buyer to subsequently resell. See § 3.02.010; see also Wholesale , Black's Law Dictionary (10th ed. 2014) (defining "wholesale" as "[t]he sale of goods or commodities usu[ally] to a retailer for resale, and not to the ultimate consumer"). Sodexo's sale of its food and services thus constituted a "sale for resale," and not a sale to the "ultimate consumer" because Sodexo didn't receive any consideration from the ultimate consumer, the students. Rather, it was Mines, acting as a retailer, that sold Sodexo's products and services to the ultimate consumer, the students who purchased meal plans. Sodexo was therefore entitled to the wholesale sales tax exemption in section 3.03.040(13).

¶32 As noted, a different division of the court of appeals confronted the same substantive legal question in Aramark that we address today: Whether Aramark, a company that operated food service facilities on Mines' campus, was engaged in retail sales transactions with students on Mines' meal plans or wholesale sales to Mines. Aramark , ¶¶ 13-14, 310 P.3d at 266. The division concluded that the vendor couldn't claim the exemption. In reaching this conclusion, the division discussed the need to construe tax exemptions narrowly and resolve any doubts against the party claiming the exemption. Id. at ¶ 11, 310 P.3d at 265-66. The court then turned to the arguments advanced and found both parties offered "several tenable arguments" supporting their positions. See id. at ¶¶ 32-34, 310 P.3d at 269-70. The court then declined to decide whose tenable argument was better. See id. at ¶ 35, 310 P.3d at 270. Instead, the court determined that there was sufficient doubt as to whether the vendor was entitled to the tax exemption. Id. Accordingly, because any such doubts should be resolved against the party seeking the exemption, the court held that the vendor wasn't entitled to the tax exemption. See id.

¶33 The Aramark division erred because it failed to give controlling significance to the plain language of Golden's Municipal Code. To the extent that Aramark conflicts with our opinion here, we overrule it.

III. Conclusion

¶34 We hold that Sodexo sold meal-plan meals to the Colorado School of Mines at wholesale, and accordingly, these transactions were exempt from taxation under the Code. We therefore affirm the court of appeals' decision with directions to remand to the district court for further proceedings consistent with this opinion.

      We granted certiorari to review the following issue:
      1. Whether the court of appeals erred in determining that Sodexo sells food to the Colorado School of Mines at wholesale, such that the subject transactions are exempt from taxation under the Golden Municipal Code.

      Like the court of appeals, we apply the 2015 version of the Code. The briefs and the trial court documents don't clearly specify which code year has been used and, accordingly, without any information to the contrary, we too will review the same ordinances that were reviewed by the court below.

      Our resolution based on the plain language of the Code is further supported by our common-law test laid out in A.B. Hirschfeld Press, Inc. v. City & County of Denver , 806 P.2d 917 (Colo. 1991).
      At issue in A.B. Hirschfeld was whether a commercial printing company's purchase of pre-press materials, such as film and press plates, to fill customers' orders constituted a tax-exempt wholesale purchase or a taxable retail purchase. See id. at 919. We created a primary purpose test for determining whether a transaction is wholesale: "[A] purchase of an item of tangible personal property is a purchase for resale and therefore not a purchase at retail if the primary purpose of the transaction is the acquisition of the item for resale in an unaltered condition and basically unused by the purchaser." Id. at 921 (emphasis added).
      Here, Mines purchased food and food preparation services from Sodexo, not for its own use and consumption, but instead to sell that food and those services to its students, thus fulfilling its contractual promises in the Residence Hall Contracts. This satisfies the primary purpose test: Mines purchased food and food preparation services from Sodexo for the primary purpose of reselling that food to its students in an unaltered condition. See also Slater Corp. v. S.C. Tax Comm'n , 270 S.C. 405, 242 S.E.2d 439, 440 (1978) (concluding that a food service vendor was engaged in wholesale sales to a university because "[t]he meals in question were clearly purchased for resale with the students buying their food from the college[ ] rather than from [the food service vendor]").

      We are not persuaded otherwise by Golden's invocation of the Tenth Circuit's decision in Hodgson v. Prophet Co. , 472 F.2d 196 (10th Cir. 1973), to support its claim that Mines was merely acting as a collection agent for Sodexo.
      In Prophet , the Tenth Circuit was tasked with determining whether a food service vendor to a college was exempt from the minimum wage and overtime requirements of the Fair Labor and Standards Act (FLSA). See id. at 201. The Tenth Circuit concluded that, for purposes of the FLSA, the food service vendor was a "retail or service establishment" because the college did not resell the food prepared by the vendor to the students. Id. "[A]ll the college did was to act in the role of a collection agent, rather than a purchaser" by collecting fees from the students and paying the vendor accordingly, while keeping a portion for its trouble. Id. at 204-05. Golden urges us to similarly conclude that Mines was merely a collection agent for Sodexo. Golden argues Mines did just that: It charged its students a slightly higher price for Sodexo's services, collected payment on Sodexo's behalf, and kept the difference as its collection fee. See id.
      Prophet is distinguishable. There, a federal court interpreted a federal law. And one with specific requirements and specialized definitions. Golden acknowledges as much, but still urges us to follow the Tenth Circuit's analysis and conclude that Sodexo directly sold its meals to the students in retail transactions. But, here we are concerned with municipal tax ordinances, not a federal labor statute.