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.

                                    26
  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



                                     27
  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.

                                     28
  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.




                                    29
¶ 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.

                                    31
                          V.      Conclusion

¶ 54   The orders are affirmed.

       JUDGE KAPELKE and JUDGE NIETO concur.




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