     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 16, 2019

                                2019COA77

No. 18CA0741, West Colo. Motors v. General Motors — Courts
and Court Procedure — Limitation of Actions —
Commencement of New Action Upon Involuntary Dismissal —
Remedial Revival Statute

     A division of the court of appeals considers whether Colorado’s

remedial revival statute, section 13-80-111, C.R.S. 2018, which

tolls the applicable statute of limitations when the original action

has been terminated for lack of jurisdiction, may be used to revive a

nonjusticiable claim. The division concludes that because section

13-80-111 is not itself a source of subject matter jurisdiction, and

because it only contemplates revival of an otherwise untimely

lawsuit in instances where the previous dismissal for lack of subject
matter jurisdiction has arisen from a curable defect, section 13-80-

111 cannot be employed to revive a nonjusticiable claim.

     The division further concludes that section 13-80-111(1)

requires a plaintiff to act diligently to revive a claim and that for a

new complaint to qualify as a “new action upon the same cause of

action” the initial lawsuit must have provided timely notice to the

defendant that the plaintiff had a present purpose to maintain the

plaintiff’s rights before the courts.

     Accordingly, the division affirms the holding of the district

court.
COLORADO COURT OF APPEALS                                       2019COA77


Court of Appeals No. 18CA0741
Douglas County District Court No. 17CV30861
Honorable Paul A. King, Judge


West Colorado Motors, LLC, d/b/a Autonation Buick GMC Park Meadows,

Plaintiff-Appellant,

v.

General Motors, LLC,

Defendant-Appellee.


                           JUDGMENT AFFIRMED

                                  Division V
                         Opinion by JUDGE GROVE
                              Terry, J., concurs
                        J. Jones, J., specially concurs

                          Announced May 16, 2019


Ballard Spahr LLP, Patrick G. Compton, Denver, Colorado, Williams & Connolly
LLP, Daniel F. Katz, Juli Ann Lund, Washington, DC, for Plaintiff-Appellant

Nelson Mullins Riley & Scarborough LLP, Mark T. Clouatre, Jacob F. Fischer,
Denver, Colorado, for Defendant-Appellee
¶1    Plaintiff West Colorado Motors, LLC, d/b/a Autonation Buick

 GMC Park Meadows (Park Meadows), appeals the district court’s

 order dismissing its complaint against defendant, General Motors,

 LLC (GM), as barred by the statute of limitations. We affirm.

                           I.    Background

¶2    This is the second appearance before this court of a long-

 running dispute between Park Meadows and GM concerning GM’s

 approval of the relocation of another dealership (Alpine) into what

 Park Meadows asserts is its territory. In the first case, after

 unsuccessfully protesting Alpine’s proposed relocation with the

 Executive Director of the Colorado Department of Revenue — who,

 in a letter to Park Meadows, said that she was declining to

 investigate or hold a hearing on the matter — Park Meadows filed

 suit against GM, Alpine, and the Executive Director in Denver

 District Court. See W. Colo. Motors, LLC v. Gen. Motors, LLC, 2016

 COA 103, ¶¶ 1-3 (W. Colo. Motors I). Park Meadows’ complaint

 included two claims. First, as authorized by Title 12, Article 6, Part

 1 of the Colorado Revised Statutes (the Dealer Act), 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,


                                    1
 and a cease and desist order against GM and Alpine with respect to

 the proposed relocation.” W. Colo. Motors I, ¶ 8. Second, and in the

 alternative, it sought a declaratory judgment and order compelling

 the Executive Director to “‘undertake a hearing or other activity’ . . .

 to determine whether the proposed relocation of Alpine was

 reasonable or unreasonable under section 12-6-120.3[, C.R.S.

 2014].” Id. at ¶ 9. 1

¶3    The Executive Director, GM, and Alpine all moved to dismiss

 Park Meadows’ first complaint for lack of subject matter

 jurisdiction. Concluding that the complaint was tantamount to an

 appeal of the Executive Director’s decision not to hold a hearing as

 to the reasonableness of the relocation, and noting that under

 section 12-6-120.3(4)(b)(II) “[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,” the district court granted

 the defendants’ motions to dismiss.




 1 The controlling statutes have been relocated and substantially
 amended since 2014. They are now codified at sections 44-20-101
 to -142, C.R.S. 2018.

                                     2
¶4    A division of this court affirmed, holding that the Executive

 Director’s letter was a final agency action and that, by statute,

 “review of the Executive Director’s decision fell within the court of

 appeals’ exclusive jurisdiction.” W. Colo. Motors I, ¶ 48. In

 addition, the division held that the district court lacked subject

 matter jurisdiction over Park Meadows’ claim for equitable relief

 against GM and Alpine because the governing statute, section 12-6-

 120.3(4)(a), allowed Park Meadows to bring “an action or proceeding

 before the executive director or a court.” Id. at ¶ 49. This

 disjunctive phrasing, the division concluded, meant that a dealer in

 Park Meadows’ position could seek relief from the Executive

 Director or a state district court, but not both. Id. The division

 therefore held that, by opting to seek relief from the Executive

 Director first, Park Meadows stripped the district court of subject

 matter jurisdiction over any subsequent request for relief that the

 Executive Director was also empowered to grant. Id.

¶5    Park Meadows filed a petition for a writ of certiorari that the

 Colorado Supreme Court accepted and then, after the governing

 statute was substantially amended in 2017, dismissed as

 improvidently granted.


                                    3
¶6    After the mandate was issued, and apparently having failed to

 prevent Alpine from moving into what it maintained was its

 territory, Park Meadows gave up on its claims for equitable relief. It

 instead filed a new lawsuit in district court — the instant case —

 naming GM as the only defendant. Park Meadows’ new complaint

 seeks damages from GM under two theories: (1) enforcement under

 section 12-6-122(3), C.R.S. 2014, which Park Meadows asserts

 entitles it to compensation for all damages resulting from GM’s

 allegedly unreasonable approval of Alpine’s relocation (the statutory

 damages claim); and (2) breach of the dealership agreement

 between Park Meadows and GM.

¶7    By this time, however, more than three years had passed since

 GM first notified Park Meadows of Alpine’s impending relocation.

 GM thus moved to dismiss both claims as time barred. See

 § 13-80-101(1)(a), C.R.S. 2018 (establishing three-year statute of

 limitations for breach of contract); § 13-80-102(1)(i), C.R.S. 2018

 (establishing two-year statute of limitations for statutory damages

 claim).

¶8    Park Meadows responded by amending its complaint to assert

 that “[i]n accordance with the remedial revival statute,


                                   4
 § 13-80-111[, C.R.S. 2018], Park Meadows filed this action on

 September 14, 2017, less than 90 days after the previous dismissal

 for lack of subject-matter jurisdiction.” GM again moved to dismiss,

 and the district court granted the motion. In a detailed written

 order, the district court concluded that “[b]ecause the claim

 asserted in this litigation is for monetary damages not previously

 made and because of the findings of the Executive Director, . . .

 [s]ection 13-80-111 cannot serve to permit the Plaintiff to bring its

 statutory violation claim.” As for Park Meadows’ claim for breach of

 contract, the district court concluded that because “this claim was

 never brought in the original action filed in Denver[,] . . . [s]ection

 13-80-111 cannot be used as a basis to permit this claim to be filed

 outside the statute of limitations.”

¶9    Park Meadows now appeals, arguing that section 13-80-111

 applies to both of its claims for relief, and that its new lawsuit

 against GM should therefore be deemed timely. We conclude that

 we need not consider whether Park Meadows’ claim for statutory

 damages qualifies for revival under section 13-80-111 because we

 hold that W. Colo. Motors I — which neither party challenges —

 controls the disposition of Park Meadows’ statutory claim. With


                                     5
  respect to the claim for breach of contract, we hold that section 13-

  80-111(1) does not apply because that claim is not “upon the same

  cause of action” as Park Meadows’ original lawsuit. Although we

  acknowledge that the same event triggered both lawsuits, Park

  Meadows’ claim for breach of contract did not arise from the same

  set of operative facts as its demand for relief under the Dealer Act.

  We thus affirm the district court’s order dismissing Park Meadows’

  complaint.

               II.     Standard of Review and Preservation

¶ 10   We review de novo a district court’s dismissal of a complaint

  on statute of limitations grounds. Harrison v. Pinnacol Assurance,

  107 P.3d 969, 971 (Colo. App. 2004). We also review de novo

  questions of statutory interpretation. Roup v. Commercial Research,

  LLC, 2015 CO 38, ¶ 8.

¶ 11   The parties agree, as do we, that Park Meadows preserved its

  argument that the remedial revival statute should apply to the

  instant complaint.




                                     6
       III.   The Disposition of Park Meadows’ Statutory Claim is
                        Controlled by W. Colo. Motors I

¶ 12   We first consider whether the district court should have

  applied section 13-80-111 to Park Meadows’ request for statutory

  damages. We conclude that because section 13-80-111 is not itself

  a source of subject matter jurisdiction, it cannot be employed to

  revive Park Meadows’ statutory claim.

                         A.    Section 13-80-111

¶ 13   Section 13-80-111, titled “Commencement of a new action

  upon involuntary dismissal,” states in relevant part as follows:

              (1) If an action is commenced within the
                  period allowed by this article and is
                  terminated because of lack of jurisdiction
                  or improper venue, the plaintiff . . . may
                  commence a new action upon the same
                  cause of action within ninety days after the
                  termination of the original action . . . and
                  the defendant may interpose any defense,
                  counterclaim, or setoff which might have
                  been interposed in the original action.

              (2) This section shall be applicable to all
                  actions which are first commenced in a
                  federal court as well as those first
                  commenced in the courts of Colorado or of
                  any other state.

¶ 14   Although the scope varies from jurisdiction to jurisdiction,

  nearly every state has a similar statute. Colorado’s version has


                                     7
  been dubbed the “remedial revival statute,” Soehner v. Soehner, 642

  P.2d 27, 28 (Colo. App. 1981); courts in other states often refer to

  similar legislation as “savings” or “renewal” statutes, see, e.g.,

  Gresham v. Harris, 765 S.E.2d 400 (Ga. Ct. App. 2014) (renewal);

  Ewing v. State Dep’t of Transp., 235 P.3d 776 (Utah Ct. App. 2010)

  (savings). No matter what they are called, however, the general

  purpose of these statutes is the same — “to prevent minor or

  technical mistakes from precluding a plaintiff from obtaining his

  day in court and having his claim decided on the merits.” Furnald

  v. Hughes, 804 N.W.2d 273, 276 (Iowa 2011).

¶ 15   When properly invoked, section 13-80-111(1) “tolls the

  running of the applicable statute of limitations when the original

  action has been terminated for lack of jurisdiction.” Nguyen v.

  Swedish Med. Ctr., 890 P.2d 255, 256 (Colo. App. 1995). The

  statute “reflects a legislative intent to enable litigants to avoid

  hardships which might result from strict adherence to the

  provisions of statutes of limitations” in cases where a litigant

  diligently pursues claims from the time that they are discovered.

  Soehner, 642 P.2d at 28. What section 13-80-111 does not do,

  however, is invite piecemeal litigation by a plaintiff that chooses to


                                      8
  parcel out its grievances in dribs and drabs. Consistent with the

  principles of stability and finality underlying Colorado’s statutes of

  limitations, the remedial revival statute cannot be used as a means

  for excusing a plaintiff’s failure to diligently and timely prosecute

  known claims.

¶ 16   Remedial statutes “relate only to remedies or procedures” that

  are created to enforce substantive rights or liabilities. Vetten v.

  Indus. Claims Appeals Office, 986 P.2d 983, 986 (Colo. App. 1999).

  Remedial legislation “must ‘be liberally construed to accomplish its

  object.’” Mishkin v. Young, 198 P.3d 1269, 1273 (Colo. App. 2008)

  (quoting Colo. & S. Ry. v. State R.R. Comm’n, 54 Colo. 64, 77, 128 P.

  506, 512 (1912)). But we must still give “consistent, harmonious,

  and sensible effect” to every part of a statute, and strive to “avoid[]

  constructions that would . . . lead to illogical or absurd results.”

  Pineda-Liberato v. People, 2017 CO 95, ¶ 22; accord 3 Norman

  Singer & Shambie Singer, Sutherland Statutory Construction

  § 60:1, Westlaw (7th ed. database updated Nov. 2018) (“Remedial

  statutes should not be construed so broadly as to create the

  possibility of results that are unreasonable, illogical or inconsistent

  with common sense.”).


                                      9
   B.    Section 13-80-111 Cannot Be Used to Revive Nonjusticiable
                                 Claims

¶ 17    Park Meadows maintains that its statutory and contract

  claims both satisfy the remedial revival statute’s requirements. In

  support, it points out that (1) its first lawsuit was timely; (2) it filed

  the instant complaint within ninety days of the issuance of the

  mandate; and (3) the division in W. Colo. Motors I, ¶ 49, held that

  “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).” GM does not dispute the timing of either

  lawsuit, nor does it question the previous division’s conclusion that

  the district court lacked subject matter jurisdiction over either of

  Park Meadows’ claims for relief in W. Colo. Motors I.

¶ 18    What Park Meadows overlooks is that statutes like section 13-

  80-111 only contemplate revival of an otherwise untimely lawsuit in

  instances where the previous dismissal for lack of subject matter

  jurisdiction arose from a curable defect. This occurs most often

  when a plaintiff mistakenly files a claim in federal court that asserts

  a question arising under state law and does not establish federal

  subject matter jurisdiction. See, e.g., Phillips v. Beethe, 679 P.2d



                                      10
  126, 127-28 (Colo. App. 1984) (applying remedial revival statute to

  medical malpractice claims dismissed from United States District

  Court for lack of subject matter jurisdiction). Section 13-80-111(1)

  accounts for this situation by permitting a plaintiff which finds

  itself in such a situation to file “a new action upon the same cause

  of action” in a court that has subject matter jurisdiction over the

  claims asserted.

¶ 19   But section 13-80-111 is not a means for skirting justiciability

  problems. To be sure, while the statute creates leeway for a

  plaintiff to fix and refile claims that have been dismissed for lack of

  subject matter jurisdiction, the mere act of refiling is not itself such

  a fix. Put another way, the remedial revival statute implicates only

  the statute of limitations — it has no effect on any other bounds of

  subject matter jurisdiction. “Although dismissal for lack of subject

  matter jurisdiction does not adjudicate the merits of the claims

  asserted, it does adjudicate the court’s jurisdiction.” Sandy Lake

  Band of Miss. Chippewa v. United States, 714 F.3d 1098, 1103 (8th

  Cir. 2013); see also Kulinski v. Medtronic Bio-Medicus, Inc., 112 F.3d

  368, 373 (8th Cir. 1997) (dismissal of the plaintiff’s complaint

  without prejudice for lack of subject matter jurisdiction would


                                     11
  prevent the plaintiff from bringing another claim on the same

  jurisdictional basis, although the plaintiff would remain free to

  bring “the same claim under a different theory and jurisdictional

  basis”); Coffin v. Cottle, 33 Mass. (16 Pick.) 383, 386 (1835) (“The

  proviso in the [Massachusetts] statute . . . declares that where the

  plaintiff has been defeated by some matter not affecting the merits,

  some defect or informality, which he can remedy or avoid by a new

  process, the statute shall not prevent him from doing so.”)

  (emphasis added).

¶ 20   And this is where Park Meadows’ statutory claim runs

  aground. The district court’s lack of subject matter jurisdiction

  over its statutory claims — having been settled in W. Colo. Motors I,

  and going unchallenged here — cannot be remedied or avoided by a

  new process. In W. Colo. Motors I, ¶¶ 49-50, a division of this court

  held that by seeking a ruling on the reasonableness of GM’s

  approval of Alpine’s relocation from the Executive Director in the

  first instance, Park Meadows deprived the district court of subject

  matter jurisdiction over that claim. Yet despite the instant

  complaint’s reliance on precisely the same alleged statutory

  violation — GM’s ostensibly unreasonable approval of Alpine’s

                                    12
  move, contrary to section 12-6-120.3(1.5) — Park Meadows does

  not contest W. Colo. Motors I’s jurisdictional analysis.

¶ 21   While Park Meadows emphasizes that it now seeks damages,

  rather than the injunctive relief it requested in W. Colo. Motors I,

  this is a distinction without a difference. Regardless of the specific

  relief requested, any claim arising under section 12-6-120.3(1.5)

  must establish as a threshold matter that the manufacturer’s

  approval of a “motor vehicle dealer facility initial site location or

  relocation request” was unreasonable. Absent that showing, Park

  Meadows is not entitled to any relief under section 12-6-120.3(1.5).

  But as W. Colo. Motors I held, Park Meadows’ decision to seek relief

  from the Executive Director closed the jurisdictional door to the

  district court’s consideration of the reasonableness of GM’s

  decision. Park Meadows does not ask us to revisit that

  jurisdictional analysis, and, in any event, we see no compelling

  reason to do so. Consequently, because the defect in subject

  matter jurisdiction that led to the dismissal of Park Meadows’

  statutory claim cannot be cured by refiling, we hold that the

  remedial revival statute does not apply to that claim.




                                     13
   IV.   Application of the Remedial Revival Statute to Park Meadows’
                          Claim for Breach of Contract

¶ 22     We next address Park Meadows’ argument that the district

  court should have revived its claim for breach of contract because it

  was “upon the same cause of action” as its first complaint and

  otherwise satisfied the requirements of the remedial revival statute.

                   A.   “Cause of Action” is Ambiguous

¶ 23     As relevant here, the remedial revival statute applies where

  (1) a timely filed lawsuit is terminated because of lack of jurisdiction

  or improper venue and (2) the plaintiff commences “a new action

  upon the same cause of action” within ninety days after the

  termination of the original action. § 13-80-111(1). While W. Colo.

  Motors I deprives the district court of subject matter jurisdiction

  over Park Meadows’ statutory claims, it has no bearing on Park

  Meadows’ claim for breach of contract. All parties likewise agree

  that Park Meadows’ first complaint was terminated for lack of

  jurisdiction and that it filed its new complaint within ninety days

  after the termination of that action. The parties disagree, however,

  as to whether Park Meadows’ new lawsuit is a “new action upon the

  same cause of action.” Accordingly, if the complaint is “upon the



                                     14
  same cause of action,” the remedial revival statute applies. If it is

  not “upon the same cause of action,” it is untimely.

¶ 24   Drawing largely on the Restatement (Second) of Judgments

  and case law construing the phrase for the purposes of claim

  preclusion, Park Meadows urges us to adopt a transactional view of

  “cause of action.” Under this approach, a “cause of action” is

  “bounded by the injury for which relief is demanded, and not by the

  legal theory on which the person asserting the claims relies.”

  Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d

  189, 199 (Colo. 1999). GM counters with the Colorado Supreme

  Court’s observation that the Restatement’s “concept of a

  ‘transaction, or series of connected transactions’ is incapable of

  mathematical precision and instead contemplates a pragmatic

  standard, to be applied with attention to the facts of each case.” In

  re Greene, 2013 CO 29, ¶ 10 (quoting Restatement (Second) of

  Judgments § 24 cmt. b (1982)). The facts and equities of this case,

  GM asserts, dictate that the claims in Park Meadows’ latest lawsuit

  fall outside the bounds of the remedial revival statute.




                                    15
¶ 25   Colorado adopted its first version of the remedial revival

  statute in 1868, repealed it in 1961, and then passed a slightly

  reworded version in 1971. No version has defined “cause of action.”

¶ 26   Legal dictionaries likewise offer little assistance. Black’s, for

  example, defines “cause of action” in three ways: “1. A group of

  operative facts giving rise to one or more bases for suing; a factual

  situation that entitles one person to obtain a remedy in court from

  another person . . . 2. A legal theory of a lawsuit . . . 3. Loosely, a

  lawsuit.” Black’s Law Dictionary 266-67 (10th ed. 2014). Other

  sources are similarly equivocal. See, e.g., Bryan A. Garner,

  Garner’s Dictionary of Legal Usage 142 (3d ed. 2011) (defining

  “cause of action” as “(1) a group of operative facts, such as a

  harmful act, giving rise to one or more rights of action; or (2) a legal

  claim”).

¶ 27   Case law and treatises confirm the phrase’s flexibility. In

  1933, the United States Supreme Court observed that

             [a] “cause of action” may mean one thing for
             one purpose and something different for
             another. It may mean one thing when the
             question is whether it is good upon demurrer,
             and something different when there is a
             question of the amendment of a pleading or of
             the application of the principle of res judicata.


                                      16
  United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68 (1933)

  (footnote omitted). More contemporary sources concur. See, e.g.,

  Ieropoli v. AC&S Corp., 842 A.2d 919, 929-30 (Pa. 2004) (“[T]he

  phrase ‘cause of action’ . . . does not have a single definition, and

  means different things depending on context.”); see also William D.

  Ferguson, The Statutes of Limitations Savings Statutes 164 (1978)

  (“[W]hen dealing with res judicata most courts have traditionally

  ascribed a broader meaning to the term than when dealing with the

  term in connection with pleading.”).

¶ 28   We look first to the plain language of a statute to interpret it.

  But where, as in this case, the plain and ordinary meaning of the

  statute’s language is ambiguous (i.e., it is capable of alternative

  reasonable constructions or its intended scope is unclear), we may

  employ various tools to discern legislative intent. We do so below.

¶ 29   Statutory limitation periods “promote justice by preventing

  surprises through the revival of claims that have been allowed to

  slumber until evidence has been lost, memories have faded, and

  witnesses have disappeared.” Order of R.R. Telegraphers v. Ry.

  Express Agency, 321 U.S. 342, 348-49 (1944). “The theory is that

  even if one has a just claim it is unjust not to put the adversary on


                                    17
  notice to defend within the period of limitation and that the right to

  be free of stale claims in time comes to prevail over the right to

  prosecute them.” Id. at 349. “By penalizing unreasonable delay,

  statutes of limitation compel litigants to pursue their claims in a

  timely manner.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d

  1094, 1099 (Colo. 1996).

¶ 30   But because time bars can be both harsh and subject to

  manipulation, remedial exceptions abound. Courts will equitably

  toll a statute of limitations in cases where fundamental fairness

  demands it. See, e.g., Garrett v. Arrowhead Improvement Ass’n, 826

  P.2d 850, 854-55 (Colo. 1992). And the General Assembly has

  adopted various statutory tolling provisions intended to ensure that

  claimants are not unreasonably deprived of their day in court. See,

  e.g., § 13-80-106(2), C.R.S. 2018 (extending statute of limitations

  for product liability actions for minors and those who are “mentally

  incompetent, imprisoned, or absent from the United States at the

  time the cause of action accrues and [are] without spouse or

  natural or legal guardian”); § 13-80-118, C.R.S. 2018 (tolling

  statute of limitations for period that potential defendant “is out of




                                    18
  this state and not subject to service of process or has concealed

  himself”).

¶ 31   Colorado’s remedial revival statute is one such provision. As

  noted above, it reflects the General Assembly’s intent “to enable

  litigants to avoid hardships which might result from strict

  adherence to the provisions of statutes of limitations.” Soehner,

  642 P.2d at 28. It is a backstop intended to ensure that cases are

  decided on the merits — at least in situations where plaintiffs have

  pursued their claims diligently and defendants had knowledge of

  those claims. Sharp Bros. Contracting Co. v. Westvaco Corp., 817

  P.2d 547, 551 (Colo. App. 1991).

                            B.    Application

¶ 32   However variable the historical meaning of “cause of action”

  may be, one thing is clear: section 13-80-111 is a remedial statute

  and should therefore be construed liberally to effectuate its

  purpose. Id. Courts interpreting similar legislation in other states

  thus generally recognize that “the form of the action is not

  dispositive,” Kulinski v. Medtronic Bio-Medicus, Inc., 577 N.W.2d

  499, 504 (Minn. 1998), and that good-faith filing mistakes will not




                                     19
  bar otherwise untimely revival of a dismissed complaint, see, e.g.,

  Pringle v. Kramer, 40 So. 3d 516, 519 (Miss. 2010).

¶ 33   But a liberal construction is not an unlimited one. As one

  influential case put it, the key to applying statutes such as section

  13-80-111 is determining whether “by invoking judicial aid [in the

  original action], a litigant [has] give[n] timely notice to his adversary

  of a present purpose to maintain his rights before the courts.”

  Gaines v. City of New York, 109 N.E. 594, 596 (N.Y. 1915). This

  statement contemplates two conditions: diligence by the plaintiff

  and notice to the defendant, both of which are critical to ensuring

  that claims are timely and fairly heard. Ensuring that the remedial

  revival statute is not invoked by a plaintiff who has slept on its

  rights — or against a defendant who has thus not received timely

  notice of the nature of the claims against it — will prevent section

  13-80-111 from “swallow[ing] entirely the ordinary restrictions of a

  statute of limitation.” Furnald, 804 N.W.2d at 276.

¶ 34   To that end, the remedy created by statutes like section 13-80-

  111 is, as the Iowa Supreme Court put it in Furnald, “narrow and

  sharp, not broad and blunt.” Id. at 283. We agree with this view

  and hold that section 13-80-111 should be applied only where


                                     20
  (1) plaintiffs have pursued their claims diligently and (2) defendants

  had knowledge of the claims. Sharp Bros., 817 P.2d at 551. While

  we construe “cause of action” broadly, as is appropriate for a

  remedial statute, we conclude that Park Meadows’ contract claim

  satisfies neither of these elements.

¶ 35   We first reject Park Meadows’ assertion that it demonstrated

  diligence merely by filing its new lawsuit within ninety days after

  the dismissal of its first complaint became final. The policies

  underpinning Colorado’s statutes of limitation demand more. A

  cause of action for breach of contract accrues “on the date the

  breach is discovered or should have been discovered by the exercise

  of reasonable diligence.” § 13-80-108(6), C.R.S. 2018 (emphasis

  added). The record establishes that Park Meadows was fully aware

  of the contractual implications of GM’s actions by the time it filed

  its administrative complaint with the Executive Director. Yet rather

  than asserting breach of contract in the first complaint that it filed

  in the district court — or even filing an entirely new, timely

  complaint and having it stayed pending the outcome of its statutory

  claim — Park Meadows waited more than three years after the

  alleged breach to seek judicial relief. Under these circumstances,


                                    21
  we conclude that Park Meadows did not demonstrate the diligence

  necessary to revive its claim for breach of contract.

¶ 36   We also reject Park Meadows’ argument that its claim for

  breach of contract was “upon the same cause of action” as its

  original complaint, which, as we have discussed above, sought only

  statutorily authorized injunctive relief. The substantial differences

  between the two complaints — and what GM might reasonably be

  expected to do when addressing them — lend support to this

  conclusion. 2 Most important is that Park Meadows’ complaint in W.

  Colo. Motors I relied exclusively on GM’s alleged violation of the

  Dealer Act. It did not even mention the dealership agreement,

  much less allege that GM had violated it. Instead, Park Meadows

  asserted that “GM’s approval of the relocation of Alpine was

  unreasonable as it infringed upon Plaintiff’s ‘[r]elevant market area’

  and established a new dealer in an area that is adequately serviced

  by Plaintiff with high consumer satisfaction for sales and service,”


  2 Although it is not in the record before us, we take judicial notice of
  Park Meadows’ complaint in W. Colo Motors I. See CRE 201(f)
  (“Judicial notice may be taken at any stage of the proceeding.”);
  Vento v. Colo. Nat’l Bank, 985 P.2d 48, 52 (Colo. App. 1999) (a court
  may take judicial notice of the contents of court records in a related
  proceeding).

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  and that “[i]f the relocation is allowed to proceed before this Court

  has the opportunity to consider the reasonableness of the

  relocation, Plaintiff will be prejudiced without being afforded the

  rights granted to it by C.R.S. § 12-6-120.3.”

¶ 37   In contrast, Park Meadows’ amended complaint in the instant

  case dedicates ten paragraphs to GM’s alleged breach of contract

  but cites to just a few provisions of the dealership agreement, which

  also is not in the record before us. For instance, Park Meadows

  alleges the dealership agreement obligates GM to “service General

  Motors Products competitively and to permit each dealer the

  opportunity to achieve a reasonable return on investment if it

  fulfills its obligations[.]” Additionally, Park Meadows alleges that

  Michigan law governs disputes concerning the dealership

  agreement. That contention was not raised on appeal, but it

  underscores how, from a defendant’s perspective, these two claims

  are distinct.

¶ 38   While the circumstances surrounding the execution, terms,

  and duration of the dealership agreement could be highly germane

  to a claim for breach of contract, that type of evidence has no

  apparent relevance under section 12-6-120.3(4)(a) — which


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  precisely outlines the burden and nature of proof in a proceeding

  filed under the Dealer Act. We thus conclude that GM could not

  have reasonably been expected to infer from Park Meadows’ claim

  for statutory relief that it should also secure and preserve evidence

  related to its dealership agreement, much less hold on to that

  evidence for years while Park Meadows’ statutory claim wound its

  way through the courts.

                         V.     Claim Preclusion

¶ 39   Because we affirm the district court’s ruling on the grounds

  discussed above, we need not address Park Meadows’ contention

  that the district court erroneously found that it was barred by the

  doctrine of claim preclusion.

                              VI.   Conclusion

¶ 40   We affirm the district court’s dismissal of the complaint.

       JUDGE TERRY concurs.

       JUDGE J. JONES specially concurs.




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       J. JONES, J., specially concurring.

¶ 41   I agree completely with the majority’s analysis and therefore

  join in its opinion in full. I write separately, however, to encourage

  the General Assembly to clarify when section 13-80-111, C.R.S.

  2018, does, or does not, apply.

¶ 42   As the majority notes, except for a ten-year period between

  1961 and 1971, a version of this ambiguous statute has been on

  the books since 1868. Its origins are relatively ancient, and we

  don’t have any legislative history to go on when deciding how, if at

  all, it applies in a particular case. Because of this, I see a real

  possibility that its original meaning has been lost to time. And

  because of that, Colorado courts will continue to struggle with cases

  in which a party invokes it. Courts and practitioners could only

  benefit from some legislative clarification that accounts for current

  legal practices.




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