West Colorado Motors, LLC v. General Motors, LLC

COLORADO COURT OF APPEALS 2016COA103
Court of Appeals No. 15CA0842
City and County of Denver District Court No. 14CV34613
Honorable Catherine A. Lemon, Judge
West Colorado Motors, LLC, d/b/a Autonation Buick GMC Park Meadows,
Plaintiff-Appellant,
v.
General Motors, LLC; Alpine Buick GMC, LLC; and Barbara Brohl, as Executive
Director of the Colorado Department of Revenue,
Defendants-Appellees.
ORDERS AFFIRMED
Division VI
Opinion by CHIEF JUDGE LOEB
Kapelke* and Nieto*, JJ., concur
Announced June 30, 2016
Lindquist & Vennum LLP, Patrick G. Compton, Denver, Colorado; Williams &
Connolly LLP, Daniel Katz, Beth A. Levene, Washington D.C., for Plaintiff-
Appellant
Wheeler Trigg O’Donnell LLP, Mark T. Clouatre, John P. Streelman, Webster C.
Cash III, Denver, Colorado, for Defendant-Appellee General Motors LLC
Brownstein Hyatt Farber Schreck, LLP, Jonathan G. Pray, Hannah M. Caplan,
Denver, Colorado, for Defendant-Appellee Alpine Buick GMC LLC
Cynthia H. Coffman, Attorney General, Y.E. Scott, Senior Assistant Attorney
General, Austin P. Bernstein, Assistant Attorney General Fellow, Denver,
Colorado, for Defendant-Appellee Barbara Brohl
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1 In this case involving the relocation of an automobile
dealership, plaintiff, West Colorado Motors, LLC, d/b/a Autonation
Buick GMC Park Meadows (Park Meadows), appeals two district
court orders dismissing its claims against defendants General
Motors, LLC (GM), Alpine Buick GMC, LLC (Alpine), and Barbara
Brohl, as the Executive Director of the Colorado Department of
Revenue (Executive Director), for lack of subject matter jurisdiction
pursuant to C.R.C.P. 12(b)(1). Park Meadows also appeals the
district court’s order denying its motion for reconsideration of the
court’s order granting the Executive Director’s motion to dismiss.
We affirm.
I. Background and Procedural History
¶2 Park Meadows is a franchised Buick and GMC automobile
dealership located at 8101 East Parkway Drive, Lone Tree,
Colorado. Alpine is also a franchised Buick and GMC automobile
dealership and is located at 8120 W. Tufts Avenue, Denver,
Colorado. GM is a manufacturer and distributor of automobiles.
¶3 This case arose after GM provided statutory notice to Park
Meadows on April 22, 2014, in a written letter, that it intended to
approve the relocation of the Alpine dealership from its location in
1
Denver to a location in Littleton, Colorado. Pursuant to section
12-6-120.3(1), C.R.S. 2015, GM was required to provide at least
sixty days’ notice to certain of its franchised dealers if it intended to
relocate an existing motor vehicle dealer to a location that was
within another motor vehicle dealer’s “relevant market area.”
A. Communications Between Park Meadows and the Executive
Director
¶4 On June 12, 2014, pursuant to section 12-6-120.3(4)(b)(I),
Park Meadows sent a letter to the Executive Director protesting
GM’s approval of Alpine’s relocation and requesting that she
conduct an investigation of the relocation, hold a hearing, and/or
issue a cease and desist order. See §§ 12-6-120.3(4)(b)(I)(A)-(C). In
this letter, Park Meadows argued that it had a right to bring an
action before the Executive Director in order for GM to “meet its
burden of proof” regarding several factors articulated in section
12-6-120.3(4)(a)(I)-(IV), and further argued that “[t]he relocation of
Alpine by GM will result in a loss of sales and market share, as well
as service opportunity, by [Park Meadows].” Park Meadows
attached the following three documents to its letter: (1) a map
showing that Alpine’s relocation site was within 7.3 miles of Park
2
Meadows’ location; (2) a map showing the population of the Denver
area according to the 2010 census tract; and (3) a map illustrating
that Alpine’s relocation site would allegedly infringe on Park
Meadows’ “Area of Geographic Sales and Service Advantage.”
¶5 In a letter dated August 20, 2014, the Executive Director
responded to Park Meadows, stating, in pertinent part, as follows:
As you know, this office has authority to
investigate and resolve alleged violations of
part 1 of article 6 of title 12, C.R.S., or the
rules promulgated thereto. See, e.g., § 12-6-
105(1)(d), C.R.S. and § 12-6-120.3(4)(b)(I),
C.R.S. Your letter does not include any
allegation that a violation has occurred. See,
e.g., § 12-6-118(1), C.R.S. (grounds for
discipline of manufacturers and distributors)
and § 12-6-120, C.R.S. (unlawful acts).
Based on the information you have provided, I
find no basis to proceed with an investigation
or to issue a cease and desist order.
¶6 On September 1, 2014, Park Meadows sent a second letter to
the Executive Director. In its second letter, Park Meadows “sought
redress for GM’s unreasonable approval of the relocation of Alpine,”
which would result “in loss of sales, market share and service
opportunities for [Park Meadows].” Park Meadows stated that GM’s
unreasonable approval of Alpine’s relocation violated section
3
12-6-120.3(1.5) (“A manufacturer shall reasonably approve or
disapprove of a motor vehicle dealer facility . . . relocation request
within sixty days after the request . . . .”), which, in turn, also
violated section 12-6-120(1)(h), C.R.S. 2015 (“It is unlawful and a
violation of this part 1 for any manufacturer, distributor, or
manufacturer representative . . . [t]o violate any duty imposed by, or
fail to comply with, any provision of section 12-6-120.3 . . . .”).
Based on these alleged violations, Park Meadows argued that it was
entitled to bring an action before the Executive Director pursuant to
section 12-6-120.3(4)(a) (“If a licensee . . . brings an action or
proceeding before the executive director or a court pursuant to this
part 1, the manufacturer shall have the burden of proof . . . .”), and
again asked the Executive Director to conduct an investigation,
hold a hearing, and issue a cease and desist order.
¶7 In a letter dated November 6, 2014, the Executive Director
sent a second response to Park Meadows, stating as follows:
In your letter, you renewed your request that
this office conduct an investigation and issue a
cease and desist order, or issue a notice of
charges to General Motors, LLC and hold a
hearing, in connection with the proposed
relocation of Alpine Buick. . . .
4
As I stated in my letter of August 20, 2014,
this office has authority to investigate and
resolve alleged violations of part 1 of article 6
of title 12, C.R.S., or the rules promulgated
thereto. See, e.g., § 12-6-105(1)(d), C.R.S., and
§ 12-6-120.3(4)(b)(1), C.R.S. Based upon your
letters of June 12 and September 1, 2014, and
the attachments, I see no indication that a
violation of part 1 or the rules promulgated
thereto has occurred. See, e.g., § 12-6-118(1),
C.R.S. (grounds for discipline of manufacturers
and distributors) and § 12-6-120, C.R.S.
(unlawful acts).
Therefore, based on the information you have
provided, I again find no basis to proceed with
an investigation, to issue a cease and desist
order, or to take other action.
B. District Court Proceedings
¶8 On December 9, 2014, Park Meadows filed a complaint in
Denver District Court, alleging two claims for relief. Park Meadows’
first claim for relief was directed against GM and Alpine, alleging
that GM unreasonably approved Alpine’s relocation in violation of
section 12-6-120.3(1.5). Park Meadows sought a stay of the
relocation of Alpine, a hearing and a judgment as to the
reasonableness of GM’s approval of Alpine’s relocation, and a cease
and desist order against GM and Alpine with respect to the
proposed relocation.
5
¶9 Park Meadows’ second claim for relief was brought in the
alternative against the Executive Director only, stating: “If the Court
determines that it does not have jurisdiction to conduct the hearing
and grant the relief requested because of [Park Meadows’] prior
correspondence with the Executive Director, then [Park Meadows]
pleads this Second Claim for Relief as an alternative to the First
Claim for Relief.” Park Meadows requested a declaration from the
district court that, in its June 12 and September 1 letters to the
Executive Director, it had sufficiently alleged a violation of section
12-6-120.3 due to GM’s allegedly unreasonable approval of Alpine’s
relocation, and a declaration that the Executive Director must
“undertake a hearing or other activity” upon receipt of Park
Meadows’ protest. Park Meadows also requested that the district
court issue an order pursuant to C.R.C.P. 106 compelling the
Executive Director to determine whether the proposed relocation of
Alpine was reasonable or unreasonable under section 12-6-120.3.
¶ 10 The Executive Director subsequently filed a motion to dismiss
Park Meadows’ second claim for relief for lack of subject matter
jurisdiction pursuant to C.R.C.P. 12(b)(1) and section
12-6-120.3(4)(b)(II), which states: “The court of appeals has initial
6
jurisdiction to review all final actions and orders that are subject to
judicial review of the executive director made pursuant to this
subsection (4).” The Executive Director contended that her
November 6 letter constituted a “final agency action,” and, thus,
any judicial review of the action must be sought in the court of
appeals. Alpine filed a motion to join in the Executive Director’s
motion to dismiss.
¶ 11 In a written order dated March 19, 2015, the district court
granted the Executive Director’s motion to dismiss Park Meadows’
second claim for relief, concluding that the Executive Director’s
November 6 letter constituted final agency action. Accordingly, the
district court concluded that it had no subject matter jurisdiction
over the second claim for relief because any judicial review of the
Executive Director’s decision should have been sought in the court
of appeals. The court did not address Park Meadows’ first claim for
relief against Alpine and GM because Alpine’s purported joinder did
not “constitute a separate motion.”
¶ 12 Thereafter, Park Meadows filed a motion for reconsideration,
requesting the district court to reconsider its order granting the
Executive Director’s motion to dismiss. The district court denied
7
Park Meadows’ motion for reconsideration in an order dated April
15, 2015.
¶ 13 Additionally, Alpine filed its own motion to dismiss Park
Meadows’ first claim for relief against it, pursuant to C.R.C.P.
12(b)(1) and section 12-6-120.3(4)(b)(II). The district court granted
Alpine’s motion to dismiss on May 13, 2015, dismissing Park
Meadows’ first claim for relief against both Alpine and GM and
dismissing this action in its entirety.
¶ 14 In its May 13 order, the court construed Park Meadows’ first
claim for relief against Alpine and GM as a request for the court to
determine the reasonableness of GM’s approval of Alpine’s
relocation. Because Park Meadows “first sought this determination
through Ms. Brohl as the Executive Director of the Colorado
Department of Revenue[,]” the court concluded that Park Meadows
was “asking the [c]ourt to review and effectively overrule [the
Executive Director’s] determination — the ‘final agency action.’”
Pursuant to section 12-6-120.3(4)(b)(II), the court concluded that
“jurisdiction for such relief lies in the Court of Appeals, not in the
District Court.”
8
¶ 15 Further, Park Meadows had argued in response to Alpine’s
motion to dismiss that section 12-6-122(3), C.R.S. 2015,1 provided
the district court with jurisdiction to resolve Park Meadows’ first
claim against GM and Alpine. However, the district court also
concluded in its May 13 order that Park Meadows’ first claim for
relief against GM and Alpine did not seek damages under section
12-6-122(3), but instead only sought a stay, followed by a cease and
desist order, with respect to Alpine’s proposed relocation. Thus, the
court found that Park Meadows’ citation to section 12-6-122(3) in
its response to Alpine’s motion to dismiss could not alter the nature
of the relief actually sought in the complaint, and did not “bypass or
cure any jurisdictional issues underlying [Park Meadows’]
Complaint.”
¶ 16 Park Meadows now appeals the following three district court
orders: the March 19 order granting the Executive Director’s motion
to dismiss; the April 15 order denying Park Meadows’ motion for
1Section 12-6-122(3), C.R.S. 2015, states: “If any licensee suffers
any loss or damage because of a violation of section 12-6-120(1) or
12-6-120.3(5), the licensee shall have a right of action against the
manufacturer, distributor, or manufacturer representative.”
9
reconsideration; and the May 13 order granting Alpine’s motion to
dismiss and dismissing the case in its entirety.
II. Pertinent Statutory Provisions
¶ 17 The following statutory provisions regarding automobile
dealers are pertinent to this appeal.
Section 12-6-120, entitled “Unlawful Acts,” provides:
(1) It is unlawful and a violation of this part 1
for any manufacturer, distributor, or
manufacturer representative:
...
(h) To violate any duty imposed by, or fail to
comply with, any provision of section 12-6-
120.3, 12-6-120.5, or 12-6-120.7.
¶ 18 Section 12-6-120.3, entitled “New, reopened, or relocated
dealer -- notice required -- grounds for refusal of dealer license --
definitions -- rules,” provides, in pertinent part:
(1) No manufacturer or distributor shall
establish an additional new motor vehicle
dealer, reopen a previously existing motor
vehicle dealer, or relocate an existing motor
vehicle dealer without first providing at least
sixty days’ notice to all of its franchised dealers
and former dealers whose franchises were
terminated, cancelled, or not renewed by a
manufacturer, distributor, or manufacturer
representative in the previous five years due to
the insolvency of the manufacturer or
distributor within whose relevant market area
10
the new, reopened, or relocated dealer would
be located. . . .
(1.5) A manufacturer shall reasonably approve
or disapprove of a motor vehicle dealer facility
initial site location or relocation request within
sixty days after the request or after sending
the notice required by subsection (1) of this
section to all of its franchised dealers and
former dealers whose franchises were
terminated, cancelled, or not renewed in the
previous five years due to the insolvency of the
manufacturer or distributor, whichever is
later, but not to exceed one hundred days.
....
(4)(a) If a licensee . . . brings an action or
proceeding before the executive director or a
court pursuant to this part 1, the
manufacturer shall have the burden of proof
on the following issues:
(I) The size and permanency of investment and
obligations incurred by the existing motor
vehicle dealers of the same line-make located
in the relevant market area;
(II) Growth or decline in population and new
motor vehicle registrations in the relevant
market area;
(III) The effect on the consuming public in the
relevant market area and whether the opening
of the proposed additional, reopened, or
relocated dealer is injurious or beneficial to the
public welfare; and
(IV) Whether the motor vehicle dealers of the
same line-make in the relevant market area
11
are providing adequate and convenient
customer care for motor vehicles of the same
line-make in the relevant market area,
including but not limited to the adequacy of
sales and service facilities, equipment, parts,
and qualified service personnel.
(b)(I) In addition to the powers specified in
section 12-6-105, the executive director has
jurisdiction to resolve actions or proceedings
brought before the executive director pursuant
to this part 1 that allege a violation of this part
1 or rules promulgated pursuant to this part 1.
The executive director may promulgate rules to
facilitate the administration of such actions or
proceedings, . . . .
(II) The court of appeals has initial jurisdiction
to review all final actions and orders that are
subject to judicial review of the executive
director made pursuant to this subsection (4).
Such proceedings shall be conducted in
accordance with section 24-4-106, C.R.S.
¶ 19 Section 12-6-122(3), entitled “Right of action for loss,”
provides:
If any licensee suffers any loss or damage
because of a violation of section 12-6-120(1) or
12-6-120.3(5), the licensee shall have a right of
action against the manufacturer, distributor,
or manufacturer representative. In any court
action wherein a manufacturer, distributor, or
manufacturer representative has been found
liable in damages to any licensee under this
part 1, any licensee so damaged shall also be
entitled to recover reasonable attorney fees
and costs as part of his or her damages.
12
III. Standard of Review
¶ 20 A C.R.C.P. 12(b)(1) motion to dismiss challenges a court’s
subject matter jurisdiction. Tulips Invs., LLC v. State ex rel. Suthers,
2015 CO 1, ¶ 11. Appellate courts apply a clearly erroneous
standard of review when resolution of the jurisdictional issue
involves a factual dispute. Id. However, when there are no
disputed facts, as is the case here, the determination of a court’s
subject matter jurisdiction presents a question of law which we
review de novo. Id.; see also Barry v. Bally Gaming, Inc., 2013 COA
176, ¶ 8.
¶ 21 A motion to reconsider is addressed to the sound discretion of
the district court. Hytken v. Wake, 68 P.3d 508, 512 (Colo. App.
2002).
¶ 22 Statutory interpretation is a question of law subject to de novo
review. Tulips, ¶ 11. Our primary task when interpreting a statute
is to ascertain and give effect to the intent of the legislature. Id. If
the statutory language is clear, we interpret the statute according to
its plain and ordinary meaning without resort to other statutory
construction aids. Marks v. Gessler, 2013 COA 115, ¶ 26.
13
Additionally, we read the statute as a whole, giving consistent,
harmonious, and sensible effect to all parts. Tulips, ¶ 11.
IV. Analysis
¶ 23 As discussed above, Park Meadows appeals three district court
orders — two orders granting the Executive Director’s and Alpine’s
motions to dismiss pursuant to C.R.C.P. 12(b)(1), and one order
denying Park Meadows’ motion for reconsideration. The district
court granted the Executive Director’s and Alpine’s motions to
dismiss and denied Park Meadows’ motion for reconsideration
based on its conclusion that the Executive Director’s November 6
letter was a final agency action giving the court of appeals sole
jurisdiction to review the Executive Director’s decision. See § 12-6-
120.3(4)(b)(II). Thus, the central issue in this appeal is whether the
Executive Director’s November 6 letter constituted final agency
action subject to judicial review by the court of appeals.
A. Final Agency Action
¶ 24 Park Meadows contends that the Executive Director’s
November 6 letter did not satisfy the requisite elements of a “final
agency action” under Colorado law. We disagree.
14
1. Statutory Requirements For “Action” and “Final Agency
Action”
¶ 25 As stated above, section 12-6-120.3(4)(b)(II) provides that
“[t]he court of appeals has initial jurisdiction to review all final
actions and orders that are subject to judicial review of the
executive director . . . . Such proceedings shall be conducted in
accordance with section 24-4-106, C.R.S.” Section 12-6-120.3,
however, does not define the terms “action” or “final action.”
¶ 26 Nonetheless, the State Administrative Procedure Act (APA),
sections 24-4-101 to -108, C.R.S. 2015, serves as a gap-filler, and
“its provisions apply to agency actions unless they conflict with a
specific provision of the agency’s statute or another statutory
provision preempts the provisions of the APA,” Marks, ¶ 29 (quoting
V Bar Ranch LLC v. Cotten, 233 P.3d 1200, 1205 (Colo. 2010)).
¶ 27 Pursuant to section 24-4-102(1), C.R.S. 2015, the definition of
the term “‘[a]ction’ includes the whole or any part of any agency
rule, order, interlocutory order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act.” Section 24-4-102(1)
further provides that “[a]ny agency rule, order, license, sanction,
relief, or the equivalent or denial thereof which constitutes final
15
agency action shall include a list of all parties to the agency
proceeding and shall specify the date on which the action becomes
effective.”
¶ 28 Park Meadows does not dispute that the Executive Director’s
November 6 letter constituted agency “action,” pursuant to section
24-4-102(1). Park Meadows contends, however, that the Executive
Director’s letter constituted only a “failure to act,” and it argues that
a “failure to act” cannot constitute “final agency action” because the
second sentence of section 24-4-102(1) does not include the phrase
“failure to act” when listing what “final agency action” must
include.2 We need not address this contention, however, because
we conclude that the Executive Director’s November 6 letter was an
“order” and not a “failure to act.” Section 24-4-102(10) defines the
term “order” as “the whole or any part of the final disposition
(whether affirmative, negative, injunctive, or declaratory in form) by
any agency in any matter other than rule-making.” The November
2We note, however, that a division of this court held in Roosevelt
Tunnel, LLC v. Norton, 89 P.3d 427, 429 (Colo. App. 2003), that an
agency’s total failure to rule on a request for a temporary discharge
permit constituted both a “failure to act” and also “final agency
action.”
16
6 letter meets this definition and thus is a “final action” under the
APA.
¶ 29 Unlike Roosevelt Tunnel, LLC v. Norton, 89 P.3d 427, 428-29
(Colo. App. 2003), where an agency simply did not respond at all
after the plaintiff filed a request for a temporary discharge permit,
thus constituting a “failure to act,” here the Executive Director sent
a written response to Park Meadows which addressed the merits of
Park Meadows’ request. The Executive Director looked to the
applicable statutes and the information Park Meadows provided and
found that there was no basis to proceed with an investigation, to
issue a cease and desist order, or to take any other action; she did
not see any “indication that a violation of part 1 [of article 6 of title
12, C.R.S.] or the rules promulgated thereto ha[d] occurred.” Thus,
the Executive Director’s letter was an “order,” § 24-4-102(10), and
constituted agency “action,” § 24-4-102(1).
¶ 30 Section 24-4-102(1) also provides that “[a]ny agency rule,
order, license, sanction, relief, or the equivalent or denial thereof
which constitutes final agency action shall include a list of all
parties to the agency proceeding and shall specify the date on which
the action becomes effective.” Here, as the district court found, the
17
Executive Director’s letter prominently displayed the date of
November 6, 2014, in its heading, thus qualifying as the effective
date of her action. Additionally, as found by the district court, the
Executive Director’s letter included the names of Park Meadows and
the Executive Director, the only parties involved in the agency
proceeding at that time. Thus, we are satisfied that the Executive
Director’s November 6 letter contained all of the required elements
according to section 24-4-102(1) to constitute agency “action” and
“final agency action.”
2. Colorado Case Law on the Requirements for Final Agency
Action
¶ 31 Colorado case law is clear that, for agency action to be final
and subject to judicial review, the action must “(1) mark the
consummation of the agency’s decision-making process and not be
merely tentative or interlocutory in nature, and (2) constitute an
action by which rights or obligations have been determined or from
which legal consequences will flow.” Chittenden v. Colo. Bd. of
Social Work Exam’rs, 2012 COA 150, ¶ 26.
¶ 32 In Chittenden, the State Board of Social Work Examiners
investigated a complaint filed by a parent of one of the plaintiff’s
18
patients. Id. at ¶¶ 1, 3-4. The Board found reasonable grounds to
believe that the plaintiff, a licensed clinical social worker, had
violated various statutory provisions. Id. at ¶¶ 1, 4. The Board
made the plaintiff a settlement offer, but rather than accepting or
rejecting this offer, the plaintiff submitted a petition for a
declaratory order to the Board. Id. at ¶¶ 4-5. The Board then
issued an order stating that it would not rule on the plaintiff’s
petition for a declaratory order. Id. at ¶ 6.
¶ 33 A division of this court concluded that the Board’s order did
not mark the consummation of the agency’s decision-making
process because the plaintiff’s disciplinary action with the Board
was still ongoing. Id. at ¶ 28. The division further concluded that
the Board’s order did not determine the plaintiff’s rights and
obligations, nor did any legal consequences flow from it because it
did not determine whether the plaintiff would ultimately be subject
to discipline. Id. at ¶ 29. Thus, the division concluded that the
Board’s order did not constitute “final agency action.” Id. at ¶ 25.
¶ 34 Here, by contrast, the Executive Director’s November 6 letter
“marked the consummation of the agency’s decision-making
process” and was not “merely tentative or interlocutory in nature.”
19
Id. at ¶ 26. The Executive Director concluded in her letter that
there was “no basis to proceed with an investigation, to issue a
cease and desist order, or to take other action.” Unlike the Board’s
order in Chittenden, there was no separate ongoing action pending
before the Executive Director. Instead, the Executive Director’s
letter indicated that her decision-making process and review of Park
Meadows’ request was complete.
¶ 35 Additionally, the Executive Director’s November 6 letter
“constitute[d] an action by which rights or obligations have been
determined or from which legal consequences will flow.” Id. Unlike
in Chittenden, where the Board’s order did not determine whether
the plaintiff would ultimately be subject to discipline, the Executive
Director’s letter here determined on the merits that she was not
going to take any action against GM or Alpine to stay or overturn
GM’s relocation decision. Id. at ¶ 29. Thus, if Park Meadows
wanted to seek judicial review of the Executive Director’s decision, it
was required to do so in the court of appeals. See
§ 12-6-120.3(4)(b)(II).
¶ 36 We also reject Park Meadows’ argument that the Executive
Director’s November 6 letter was not a final agency action because
20
it did not contain the word “final.” In support of its argument, Park
Meadows relies on Colorado State Board of Medical Examiners v.
Lopez-Samayoa, 887 P.2d 8, 14 (Colo. 1994), a case in which an
agency’s final action was captioned “Final Board Order.” However,
the court in Lopez-Samayoa did not hold that the board’s order
there must contain the word “final” in order to be a final agency
action, nor are we aware of any statute or case law in Colorado that
mandates such a requirement.
B. Formal Adjudicatory Proceeding Not a Prerequisite to Final
Agency Action
¶ 37 Park Meadows also contends that a formal adjudicatory
proceeding is a prerequisite to final agency action. Thus, Park
Meadows argues that what it characterizes as an informal exchange
of letters between itself and the Executive Director lacked the
formality necessary for an adjudicatory proceeding, and,
accordingly, the November 6 letter could not constitute final agency
action. We are not persuaded.
¶ 38 To support its argument, Park Meadows relies on several
rulemaking cases and other inapposite cases, none of which
articulates any requirement that a formal adjudicatory proceeding
21
must precede a final agency action. See Colo. Office of Consumer
Counsel v. Mountain States Tel. & Tel. Co., 816 P.2d 278 (Colo.
1991); CF & I Steel, L.P. v. Air Pollution Control Div., 77 P.3d 933
(Colo. App. 2003). Additionally, in Marks, ¶ 34, a division of this
court specifically rejected the argument that a formal adjudication
is a procedural prerequisite to every agency action. The division in
Marks, ¶ 39, stated that the APA defines “action” without reference
to “adjudication,” see § 24-4-102(1), and the judicial review section
of the APA “does not once use the term ‘adjudication,’” see
§ 24-4-106, C.R.S. 2015. The division concluded that “[t]he
prerequisite for judicial review under section 24-4-106 is a final
agency action, not a final agency adjudication.” Marks, ¶ 39.
¶ 39 We agree with the reasoning in Marks, and conclude that a
formal adjudication was neither necessary nor required as a
prerequisite to the Executive Director’s final agency action. Rather,
as explained above, section 24-4-102(1) and the definition of final
agency action as articulated in Chittenden, ¶ 26, set forth the
requirements for what constitutes final agency action.
¶ 40 In any event, we note that there was a proceeding here.
Section 24-4-102(13) defines “proceeding” as “any agency process
22
for any rule or rule-making, order or adjudication, or license or
licensing.” (Emphasis added.) As explained above, the Executive
Director’s November 6 letter constituted an order — an order that
was issued pursuant to an agency process that Park Meadows itself
began in its June 12 letter and which concluded with the Executive
Director’s determination that there was no basis to proceed with an
investigation, issue a cease and desist order, or to take any other
action against GM or Alpine.
C. The Executive Director’s August 20 Letter
¶ 41 According to Park Meadows, defendants’ argument (and the
district court’s conclusion) that the Executive Director’s November 6
letter constituted final agency action is illogical because the
Executive Director had issued a nearly identical letter on August
20, and thus both letters could not have been final.3 We disagree.
3 We question whether, as Park Meadows argues, the Executive
Director’s August 20 and November 6 letters were “nearly identical.”
In the August 20 letter, the Executive Director merely concluded
that Park Meadows’ June 12 letter “did not include any allegation
that a violation has occurred.” By contrast, the November 6 letter
ruled directly on the merits of Park Meadows’ allegations and
concluded that there was “no indication that a violation has
occurred.”
23
¶ 42 “[A]lthough a quasi-judicial decision may completely determine
the rights of the parties and end the particular action, the existence
of such a final decision, in and of itself, does not bar the quasi-
judicial body from reopening the action on its own motion.”
Citizens for Responsible Growth v. RCI Dev. Partners, Inc., 252 P.3d
1104, 1107 (Colo. 2011). “Until judicial review is initiated or
jurisdiction is divested in some other way, a quasi-judicial body is
not necessarily precluded from reconsidering and superseding its
own final decision.” Id. Nonetheless, if a quasi-judicial body is
authorized to reconsider and actually reconsiders a prior decision,
the earlier decision ceases to be final and “the superseding decision
that ultimately ends the action . . . is subject to judicial review.” Id.
¶ 43 In this case, the Executive Director’s August 20 letter did not
undermine the finality of her November 6 determination. Park
Meadows had not initiated judicial review prior to sending the
Executive Director a “renewed” request on September 1 to initiate
an investigation, issue a cease and desist order, or take other action
against GM and Alpine. See § 24-4-106(11)(b) (requiring judicial
review of a final agency action to commence within forty-nine days
after the date of the service of the final order). Furthermore, forty-
24
nine days had not passed between August 20, when the Executive
Director issued her first letter, and September 1, when Park
Meadows sent its “renewed” request to the Executive Director. See
id. Thus, the Executive Director retained jurisdiction over the
matter and properly addressed Park Meadows’ “renewed” request.
RCI, 252 P.3d at 1107. Even if we assume that the Executive
Director’s August 20 decision constituted final agency action, that
decision ceased to be final when she issued her November 6
decision, and the November 6 decision was then subject to judicial
review.4 Id.
4 Alpine contends that, because Park Meadows was required to
commence judicial review of the Executive Director’s November 6
decision within forty-nine days of the decision, see
§ 24-4-106(11)(b), C.R.S. 2015, this court does not have jurisdiction
over the appeal and must dismiss it as untimely. This contention
misses the point. Although Alpine is correct that Park Meadows
had forty-nine days from November 6 to file an appeal in this court,
Park Meadows has never filed a direct appeal from the Executive
Director’s November 6 letter. Rather, here, Park Meadows appeals
from the two district court orders granting the Executive Director’s
and Alpine’s motions to dismiss, and from the district court’s order
denying Park Meadows’ motion for reconsideration. Park Meadows
timely appealed these orders, and, thus, we have jurisdiction over
this matter.
25
D. Section 12-6-122(3)
¶ 44 Park Meadows also contends that section 12-6-122(3), which
authorizes an action by a dealer for damages against a
manufacturer (but not against another dealer) under certain
circumstances, provided the district court with subject matter
jurisdiction to resolve its claim against GM and allowed the court to
disregard the jurisdictional limitations set forth in section
12-6-120.3(4)(b)(II). Thus, Park Meadows contends that the district
court erred by granting Alpine’s motion to dismiss pursuant to
C.R.C.P. 12(b)(1) and dismissing the case in its entirety.5 We
disagree.
¶ 45 “In considering a motion to dismiss for lack of subject matter
jurisdiction pursuant to C.R.C.P. 12(b)(1), a district court examines
the substance of the claim based on the facts alleged and the relief
requested.” Barry, ¶ 8. Here, Park Meadows’ first claim for relief
against GM and Alpine sought a stay, followed by a cease and desist
order, with respect to Alpine’s proposed relocation, pursuant to
section 12-6-120.3. Park Meadows never sought damages under
5Park Meadows acknowledges that section 12-6-122(3) does not
authorize an action for damages against Alpine because Alpine is
not a manufacturer.
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section 12-6-122(3). We agree with the district court that, “[c]iting
[section] 12-6-122(3) now, . . . cannot alter the nature of the relief
sought through [Park Meadows’] Complaint.” Accordingly,
pursuant to section 12-6-120.3(4)(b)(II), the court of appeals
retained sole jurisdiction to review the Executive Director’s final
agency action.
E. The Result of the Executive Director’s November 6 Letter
Constituting Final Agency Action
¶ 46 Having concluded that the Executive Director’s November 6
letter constituted final agency action, we next determine whether
the district court properly granted defendants’ motions to dismiss
and properly denied Park Meadows’ motion for reconsideration.
¶ 47 As pertinent here, section 12-6-120.3(4)(a) provides that a
licensee may bring “an action or proceeding before the executive
director or a court pursuant to this part 1,” (emphasis added), and
section 12-6-120.3(4)(b)(II) provides that “[t]he court of appeals has
initial jurisdiction to review all final actions and orders that are
subject to judicial review of the executive director made pursuant to
this subsection (4).” Because we interpret clear statutory language
according to its plain and ordinary meaning, Marks, ¶ 26, we
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interpret the word “or” in section 12-6-120.3(4)(a) to be used in the
disjunctive sense, as applied to the facts here.6 Armintrout v.
People, 864 P.2d 576, 581 (Colo. 1993) (“[W]hen the word ‘or’ is
used in a statute, it is presumed to be used in the disjunctive
sense, unless legislative intent is clearly to the contrary.”).
¶ 48 We conclude that the district court properly granted the
Executive Director’s motion to dismiss pursuant to C.R.C.P.
12(b)(1), and further did not abuse its discretion in denying Park
Meadows’ motion for reconsideration. See Hytken, 68 P.3d at 512
(stating that motions for reconsideration are addressed to the sound
discretion of the trial court); see also C.R.C.P. 121, § 1-15(11). Park
Meadows’ second claim for relief, directed against the Executive
Director, sought a declaration from the district court that Park
Meadows had sufficiently alleged a violation of section 12-6-120.3,
and sought an order pursuant to C.R.C.P. 106 compelling the
Executive Director to determine whether the proposed relocation of
Alpine was reasonable. However, the Executive Director had
6 We need not decide whether a plaintiff who brings an action or
proceeding before the Executive Director pursuant to section
12-6-120.3 and successfully demonstrates a manufacturer’s
violation of the statute can subsequently bring an action in the
district court to recover damages for that violation.
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already issued a final decision determining that, based on Park
Meadows’ submissions, there was no indication of any violation by
GM or Alpine of the applicable statutes. That letter constituted a
final agency action, and review of the Executive Director’s decision
fell within the court of appeals’ exclusive jurisdiction. § 12-6-
120.3(4)(b)(II).
¶ 49 Additionally, because section 12-6-120.3(4)(a) allowed Park
Meadows to bring an “action or proceeding before the executive
director or court pursuant to this part 1,” (emphasis added), the
district court did not err in concluding that Park Meadows was
barred from bringing an additional action before the district court,
Armintrout, 864 P.2d at 581. Park Meadows chose to bring an
initial proceeding before the Executive Director and thereafter could
not bring a separate action in the district court merely because it
did not receive the relief it requested. Thus, the district court
properly granted the Executive Director’s motion to dismiss for lack
of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), and did
not abuse its discretion by denying Park Meadows’ motion for
reconsideration. See Hytken, 68 P.3d at 512-13.
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¶ 50 We also conclude that the district court properly granted
Alpine’s motion to dismiss pursuant to C.R.C.P. 12(b)(1) and
dismissed the case in its entirety. Like the district court, we
construe Park Meadows’ first claim for relief against Alpine and GM
as a request for the district court to determine the reasonableness
of GM’s approval of Alpine’s relocation. Because Park Meadows first
sought this same determination through the Executive Director, the
court of appeals had sole jurisdiction to review the Executive
Director’s decision. § 12-6-120.3(4)(b)(II). Thus, Park Meadows
could not bring a proceeding or an action seeking the same relief
before both the Executive Director and the district court.
§ 12-6-120(4)(a); Armintrout, 864 P.2d at 581.
F. Miscellaneous Contentions
¶ 51 Because of our resolution of this matter, we need not address
certain other miscellaneous contentions of the parties.
¶ 52 GM contends that, if the district court did have subject matter
jurisdiction over Park Meadows’ claims, any error by the district
court was harmless because Park Meadows’ claims are barred by
the doctrine of issue preclusion. We need not address this
30
contention because we have concluded that the district court did
not have subject matter jurisdiction over Park Meadows’ claims.
¶ 53 For the first time on appeal, the Executive Director argues that
it is within her discretion to take enforcement action, and that her
discretionary decision not to do so here was not subject to judicial
review by any court, including the court of appeals.7 She also
argues that, because it was within her discretion to decide whether
to investigate alleged violations of section 12-6-120.3, Park
Meadows lacked standing to present a claim against her because it
had no “injury-in-fact.” Colo. Med. Soc. v. Hickenlooper, 2012 COA
121, ¶ 20 (citation omitted). We do not address these arguments
because we have already concluded that the November 6 letter
constituted final agency action, which was the only argument made
by the Executive Director in the district court and was the basis
upon which the district court granted the Executive Director’s
motion to dismiss.
7 We note that, while this appeal was pending before our court, the
Colorado Supreme Court decided Colorado Ethics Watch v.
Independent Ethics Commission, 2016 CO 21. While Colorado
Ethics Watch does address some arguments similar to those in our
case, that case involved a constitutionally created commission and
was decided on the basis of various constitutional provisions.
Thus, it is inapplicable here.
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V. Conclusion
¶ 54 The orders are affirmed.
JUDGE KAPELKE and JUDGE NIETO concur.
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