     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
                                                            January 25, 2018

                                 2018COA8

No. 16CA1901, Town of Breckenridge v. Egencia, LLC —
Taxation — Municipalities — Home Rule Cities —
Accommodation Tax

     A division of the court of appeals concludes that online travel

companies are not required to remit to the Town of Breckenridge

accommodation taxes because they are not lessors or renters of

hotel rooms and therefore have no possessory interest in those

rooms, for purposes of Breckenridge’s hotel accommodation tax

ordinance. In its analysis, the division distinguishes Breckenridge’s

accommodation tax from Denver’s lodging tax, which was imposed

on the online travel companies in City & County of Denver v.

Expedia, Inc., 2017 CO 32.

     The division also considers and rejects Breckenridge’s

contentions that the district court erred in applying the summary
judgment standard, that its sales tax claim was improperly

dismissed for lack of subject matter jurisdiction, that its motion for

class action certification should have been granted because

common questions predominated the class, and that the district

court erred in dismissing Breckenridge’s common law claims.

     Accordingly, the division affirms the holding of the district

court.
COLORADO COURT OF APPEALS                                           2018COA8


Court of Appeals No. 16CA1901
Summit County District Court No. 11CV420
Honorable Karen A. Romeo, Judge


Town of Breckenridge, Colorado,

Plaintiff-Appellant,

v.

Egencia, LLC; Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire,
Inc.; Internetwork Publishing Corporation, d/b/a Lodging.com;
Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com, Incorporated;
Site59.com, LLC; TravelNow.com, LP; Travelport, Inc., f/k/a Cendant Travel
Distribution Services Group, Inc.; Travelscape, LLC; Travelweb, LLC; Trip
Network, Inc., d/b/a Cheaptickets.com,

Defendants-Appellees.


                           JUDGMENT AFFIRMED

                                  Division III
                         Opinion by JUDGE GRAHAM
                              Webb, J., concurs
                          Terry, J., specially concurs

                         Announced January 25, 2018


Lewis Roca Rothgerber Christie LLP, Michael D. Plachy, Thomas M. Rogers III,
Joy Allen Woller, Denver, Colorado, for Plaintiff-Appellant

Connelly Law LLC, Sean Connelly, Denver, Colorado; Davis Graham Stubbs
LLP, Jason M. Lynch, Denver, Colorado, for Defendants-Appellees
¶1    We are asked to determine whether online travel companies

 (OTCs) are required to collect and remit accommodation and sales

 taxes to the Town of Breckenridge, Colorado, on hotel rooms they

 book through their respective internet websites. We conclude that

 they need not collect and remit such taxes.

¶2    Breckenridge, the plaintiff, seeks to collect accommodation

 and sales taxes from sixteen OTCs, the defendants: Egencia, LLC;

 Expedia, Inc.; Hotels.com, L.P.; Hotels.com, GP, LLC; Hotwire, Inc.;

 Internetwork Publishing Corporation d/b/a Lodging.com;

 Lowestfare.com, Inc.; Orbitz, Inc.; Orbitz, LLC; Priceline.com,

 Incorporated; Site59.com, LLC; TravelNow.com, LP; Travelport Inc.

 f/k/a Cendant Travel Distribution Services Group, Inc.;

 Travelscape, LLC; Travelweb, LLC; Trip Network, Inc. d/b/a

 Cheaptickets.com; and yet unidentified companies, Does 1 through

 1000.

¶3    On appeal, Breckenridge makes five contentions. First, it

 contends that the district court erred in determining that the OTCs

 were not “renters” or “lessors” for purposes of Breckenridge’s

 accommodation tax ordinance, relying on the Colorado Supreme

 Court’s decision in City & County of Denver v. Expedia, Inc., 2017


                                   1
 CO 32 (plurality opinion). Second, it contends that the district

 court misapplied the summary judgment standard by resolving

 material issues of fact. Third, it contends that its sales tax claim

 should not have been dismissed for lack of subject matter

 jurisdiction. Fourth, it contends that its motion for class action

 certification should have been granted because common questions

 predominate and class action was the superior method of relief.

 Fifth, it contends that its common law claims were improperly

 dismissed. We consider and reject each contention.

                             I.     Background

                        A.        Overview of OTCs

¶4    The OTCs maintain websites through which travelers may

 book reservations for hotel accommodations and other travel-

 related services. The OTCs transact their online businesses in two

 ways. The first is known as the “agency model,” which describes

 transactions where the OTC is the actual agent of a hotel. The

 second is the “merchant model,” which was used here.

¶5    Under the merchant model, an OTC first contracts with a

 hotel. These contracts offer rooms to an OTC at a discounted rate

 — a fixed percentage of the price the hotel would charge travelers


                                       2
 directly for the rooms. The OTC describes the hotel and its facilities

 on its website and allows customers logging onto its website to book

 reservations for that hotel.

¶6    When facilitating reservations, an OTC neither purchases nor

 reserves rooms in advance. Rather, the OTC coordinates

 information between travelers and hotels. Only hotels can issue

 reservations. When a purchaser requests a hotel room, the chosen

 OTC’s computer system communicates with a hotel’s central

 reservation system to find a specific room at a specified rate. If

 available, the purchaser must agree to the hotel’s cancellation

 policy and terms of occupancy before the hotel will accept the

 reservation. If the hotel accepts the reservation, it will provide a

 confirmation number in the customer’s name and supply this

 number to the OTC. The OTC forwards the confirmation number

 then collects and processes the customer’s payment.

¶7    When a customer arrives at the hotel, the hotel registers the

 customer as a guest before assigning a room. Assignments are

 made only when a room is available and the customer meets the

 hotel’s terms and conditions for occupancy. After the customer




                                    3
 concludes his stay, the OTC transfers payment to the hotel. The

 hotel then remits the collected taxes to Breckenridge.

¶8     As relevant here, Breckenridge imposes an accommodation tax

 “of three and four-tenths percent (3.4%) on the price paid for the

 leasing or rental of any hotel room, motel room, or other

 accommodation located in the town.” Breckenridge Town Code § 3-

 4-3 (B.T.C.). In addition to the accommodation tax, Breckenridge

 collects a 2.5% sales tax. B.T.C. § 3-1-5. Unlike the

 accommodation tax, the sales tax ordinance requires Breckenridge

 to seek administrative review before petitioning the district court for

 relief to collect allegedly unpaid sales taxes. B.T.C. §§ 3-1-35, 3-1-

 36.

                        B.   Procedural History

¶9     Breckenridge instituted this action to recover from the OTCs

 unpaid accommodation and sales taxes. In its initial complaint,

 Breckenridge alleged that the OTCs were responsible for collecting

 and remitting taxes associated with hotel reservations.

 Breckenridge asserted five causes of action: declaratory judgment,

 violations of municipal ordinances, conversion, civil conspiracy, and

 unjust enrichment.


                                    4
¶ 10   The OTCs then filed a motion to dismiss, which was partially

  granted. The district court agreed that no cause of action existed in

  respect to the sales tax claim because Breckenridge had failed to

  exhaust its administrative remedies and none of the exceptions to

  exhaustion applied. Consequently, the court determined that it

  lacked subject matter jurisdiction to decide that claim. But, the

  district court refused to dismiss the accommodation tax claim,

  explaining that Breckenridge had sufficiently asserted a claim in

  regard to the accommodation tax.

¶ 11   Breckenridge then sought class certification for fifty-five home

  rule cities that also levy a lodger’s or accommodation tax, seeking to

  impose taxes, interest, and penalties on the OTCs in favor of the

  putative class. The district court denied class certification on

  multiple grounds. First, the court concluded that certification

  under C.R.C.P. 23(b)(2) was inappropriate because Breckenridge

  was primarily seeking monetary damages. Second, the court

  determined that common questions did not predominate over

  questions affecting only individual members of the putative class,

  so class certification was not superior to other available remedies

  and, therefore, C.R.C.P. 23(b)(3) certification was unavailable.


                                    5
  Third, the court held that certification was inappropriate because at

  least nine of the unnamed class members had failed to exhaust

  their own administrative remedies.

¶ 12    Thereafter, the parties filed cross-motions for summary

  judgment. Resolving those motions in favor of the OTCs, the

  district court analyzed the plain language of the accommodation tax

  ordinance, in addition to the OTCs’ role in the reservation process.

  Specifically, the court determined that it was beyond dispute that

  OTCs do not maintain hotel room inventories, any customer service

  the OTCs provide is related only to the facilitation of reservations

  and not the actual rental or service of accommodations, and the

  hotels — not the OTCs — are primarily involved in a customer’s

  reservation process. Based on those undisputed facts and the plain

  language of the ordinance, the court concluded that the OTCs were

  not renters or lessors and, therefore, not required to collect and

  remit the accommodation tax.

  II.   The District Court Properly Determined that the OTCs are not
               Subject to Breckenridge’s Accommodation Tax

¶ 13    Breckenridge contends that the district court erred in

  concluding that OTCs are neither “lessors” nor “renters” of hotel



                                     6
  rooms. Additionally, Breckenridge asserts that the district court

  erred when it relied on Expedia, Inc. v. City & County of Denver,

  2014 COA 87 (Expedia I), which was reversed by the Colorado

  Supreme Court in a plurality decision. City & Cty. of Denver v.

  Expedia, Inc., 2017 CO 32 (Expedia II). We disagree.

¶ 14   Who is responsible for collecting and remitting accommodation

  taxes under the B.T.C.? This question hinges on the meaning of

  “lessor,” “renter,” and “furnish,” as used in sections 3-4-1, 3-4-3,

  and 3-4-4 of that code.

¶ 15   Breckenridge contends that the OTCs are renters or lessors

  under the code because they sell the legal right to use hotel rooms

  in exchange for consideration. Because the accommodation tax

  does not require a person to have physical possession of the right

  sold, Breckenridge asserts that the OTCs are capable of leasing or

  renting even without physical possession of the hotel rooms.

¶ 16   The OTCs respond that they are not lessors or renters because

  they do not own, possess, or have any interest in hotel rooms;

  therefore, they have no power to convey use or occupancy — in

  other words, to lease hotel rooms — to others. See City of

  Philadelphia v. City of Philadelphia Tax Review Bd., 37 A.3d 15, 20


                                     7
  (Pa. Commw. Ct. 2012) (no rental occurs until a customer checks in

  at the hotel and receives the right to a room). Rather, they contend

  that OTCs are technology companies that act as intermediaries

  between purchasers and hotels.

¶ 17   The district court agreed with the OTCs that they are not

  lessors or renters subject to the accommodation tax and, instead,

  are intermediaries. Relying on dictionary definitions, the court

  found that a “lessor” or “renter” is a “person or business that

  conveys via a contract the right to use, possess, or occupy

  accommodations for consideration.” Because OTCs act merely as

  intermediaries and, therefore, lack a possessory interest in the

  lodging, the district court found that they are not subject to

  Breckenridge’s accommodation tax.

                        A.    Standard of Review

¶ 18   We review a district court’s grant of summary judgment and

  issues of statutory interpretation de novo. Robinson v. Legro, 2014

  CO 40, ¶ 10; Bd. of Cty. Comm’rs v. ExxonMobil Oil Corp., 192 P.3d

  582, 585 (Colo. App. 2008), aff’d, 222 P.3d 303 (Colo. 2009). When

  reviewing a municipal ordinance, our primary task is to give effect

  to the intent of the drafters, which we attempt to discern by looking


                                    8
  first to the ordinance’s plain language. Jackson & Co. v. Town of

  Avon, 166 P.3d 297, 299 (Colo. App. 2007). If we can give effect to

  the ordinary meaning of the words used by the drafter, the

  ordinance should be construed as written. Id. But if the ordinance

  is ambiguous and therefore susceptible of multiple interpretations,

  we may resort to various aids of statutory construction in

  determining intent. Jefferson Cty. Bd. of Equalization v. Gerganoff,

  241 P.3d 932, 935 (Colo. 2010). We must also refrain from

  rendering a judgment that would be inconsistent with the

  municipal body’s legislative intent and must avoid any

  interpretation that would produce an illogical or absurd result. Id.;

  Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250 P.3d 722,

  725 (Colo. App. 2010).

¶ 19   Interpreting a tax code requires a similar analysis. Welby

  Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo.

  2003). We must construe it as a whole to give consistent,

  harmonious, and sensible effect to all its parts. Id. Additionally,

  however, we adhere to Colorado’s longstanding rule of construction

  that “tax provisions like those at issue here will not be extended

  beyond the clear import of the language used, nor will their


                                    9
  operation be extended by analogy.” Waste Mgmt., 250 P.3d at 725

  (citing City of Boulder v. Leanin’ Tree, Inc., 72 P.3d 361, 367 (Colo.

  2003)). We construe all doubts against the government and in favor

  of the taxpayer. Id.

          B.      The Accommodation Tax Ordinance’s Language

¶ 20   B.T.C. section 3-4-1 (the preamble) states, in part, as follows:

                [The] legislative intent of the town council in
                enacting this chapter is that every person who,
                for consideration, leases or rents any hotel
                room, motel room, or other accommodation
                located in the town shall pay and every person
                who furnishes for lease or rental any such
                accommodation shall collect the tax imposed
                by this chapter.

¶ 21   An implementing provision provides that “an excise tax of

  three and four-tenths percent (3.4%) [shall be assessed] on the price

  paid for the leasing or rental of any hotel room, motel room, or

  other accommodation located in the town.” B.T.C. § 3-4-3.

¶ 22   The code also imposes liability for unpaid taxes on “any lessee

  or renter of a hotel room, motel room, or other accommodation

  located in the town” who fails to pay or “any lessor or renter of such

  accommodation” who fails to collect the accommodation tax. B.T.C.

  § 3-4-4(A).



                                      10
¶ 23   The B.T.C. does not define the terms “leasing,” “renting,”

  “lessor,” or “renter.” Nor does the code define the operative term

  used in its preamble, “furnishes for lease or rental.”

¶ 24   When a statute fails to define an integral term, we may refer to

  a dictionary to determine the common usage of the term. See

  Roalstad v. City of Lafayette, 2015 COA 146, ¶ 34 (If a “statute does

  not define a term, the word at issue is a term of common usage, and

  people of ordinary intelligence need not guess at its meaning, we

  may refer to dictionary definitions in determining the plain and

  ordinary meaning.” (quoting Mendoza v. Pioneer Gen. Ins. Co., 2014

  COA 29, ¶ 24)). Thus, we look to dictionary definitions of the terms

  “lessor,” “renter,” “lease,” “rent,” and “furnish” to ascertain their

  plain and ordinary meanings.

¶ 25   Black’s Law Dictionary defines those terms as follows:

           “lessor” (n.) is “[s]omeone who conveys real or personal

             property by lease; esp[ecially], landlord”;

           “lease” (n.) is a “contract by which a rightful possessor of

             real property conveys the right to use and occupy the

             property in exchange for consideration,” and (v.) is “[t]o

             grant the possession and use of (land, buildings, rooms,

                                     11
            movable property, etc.) to another in return for rent or

            other consideration”; and

           “rent” (n.) is “[c]onsideration paid, usu[ally] periodically,

            for the use or occupancy of property.”

  Black Law’s Dictionary 1024, 1026, 1043, 1488 (10th ed. 2014).

¶ 26   Similarly, Webster’s Third New International Dictionary

  defines the terms as follows:

           “lessor” (n.) is “one that surrenders possession of real

            estate under a lease”;

           “lease” (n.) is a “a contract by which one conveys lands,

            tenements, or hereditaments for life, for a term of years,

            or at will or for any less interest than that of the lessor,

            usu[ally] for a specified rent or compensation,” and (v.) is

            “to grant or convey to another by lease”;

           “rent” (n.) is “income from a property,” and “a piece of

            property that the owner allows another to use in

            exchange for a payment in services, kind, or money”;

           “renter” (n.) is “one that rents: as . . . the lessee or tenant

            of lands, tenements, or other property”; and




                                     12
           “furnish” means “to provide or supply with what is

            needed.”

  Webster’s Third New International Dictionary 923, 1286, 1297,

  1923 (2002).

¶ 27   These definitions clarify that a person who rents or leases or

  furnishes for rent to another is one who has a possessory interest in

  the property and has the legal ability to supply the property.

¶ 28   Here, the OTCs are not the “rightful possessor[s]” of hotel

  rooms. Black’s Law Dictionary 1024 (10th ed. 2014) (defining

  lease). The district court found that OTCs cannot pledge, assign, or

  use hotel properties. Instead, hotels, as property owners, maintain

  possession of the hotel rooms throughout the transaction.

¶ 29   Breckenridge argued before the district court that the OTCs

  acquire inventory. However, the court found that numerous

  operating agreements explicitly state that the OTCs have no right or

  obligation to acquire an inventory of rooms. Further, the court

  found that inventory belongs to the hotel and is only purchased by

  the OTC immediately before being passed along to the consumer.

¶ 30   Breckenridge also contends that the code does not impose any

  requirement that a person who leases or rents lodging have physical


                                   13
  possession of that room. Therefore, Breckenridge asserts that the

  OTCs need not have physical possession of the hotel rooms to

  qualify as renters or lessors. However, the physical possession

  requirement is inherent in the plain and ordinary meaning of

  renting and leasing. Because the hotels maintain possession of the

  rooms and are the sole grantors of the right of occupancy, hotels

  are lessors or renters and OTCs are essentially brokers.

¶ 31   A broker is an “agent who acts as an intermediary or

  negotiator, esp[ecially] between prospective buyers and sellers.”

  Black’s Law Dictionary 232 (10th ed. 2014). Notably, a “broker

  usu[ally] does not have possession of the property” at issue. Id.

  Here, the OTCs, like traditional brokers, do not possess the hotel

  rooms during the entirety of the transaction. They may only

  acquire the right to use a room, which is immediately passed along

  to the purchaser when the hotel issues a confirmation number in

  the purchaser’s name.

¶ 32   They also cannot “grant the possession and use of” hotel

  rooms because they are not the rightful possessors. OTCs do not

  issue or furnish reservations; they facilitate them, at times and

  rates set by a hotel pursuant to their contracts. Ultimately, a hotel,


                                    14
  not an OTC, grants a right of occupancy to guests upon check-in.

  Consequently, an OTC is more akin to a broker.

¶ 33   Moreover, reading the accommodation tax statute as a whole

  indicates that the accommodation tax applies only to those who

  have a possessory interest in the accommodation being taxed.

  Turning to B.T.C. section 3-4-2, the code defines hotel room, motel

  room, or other accommodation as “[a]ny room or other

  accommodation in any hotel . . . or any such similar place to any

  person who, for consideration, uses, possesses, or has the right to

  use or possess such room or other accommodation for a total

  continuous duration of less than one month.” (emphasis added.) A

  hotel guest does not have the right to use or possess a hotel room

  until she is registered at the hotel. An OTC cannot grant this right.

¶ 34   In Village of Bedford Park v. Expedia, Inc., 876 F.3d 296 (7th

  Cir. 2017), the court was presented with facts similar to those here.

  Thirteen Illinois municipalities sought to impose taxes on the OTCs.

  Applying an analysis like that of the district court here, the court

  determined that renting implies ownership and granting possession

  of property. Id. at 305. Since the OTCs had no possessory interest

  and were not engaged in the business of owning, operating, or


                                    15
  leasing, and could not independently grant customers access to

  rooms, they could not be liable for collecting and remitting taxes.

  Id. The various ordinances applied by the Illinois municipalities

  used language like that adopted by Breckenridge. Also, in City of

  San Antonio v. Hotels.com, L.P., 876 F.3d 717 (5th Cir. 2017), the

  Fifth Circuit determined that OTCs do not have an inventory of

  rooms for occupancy. Persuaded by the analysis in Bedford Park,

  we conclude that, under the Breckenridge ordinance, an OTC does

  not have an interest that would allow it to furnish for rent any hotel

  room. On the contrary, it appears that the OTCs only “furnish”

  purchasers the opportunity to rent rooms from hotels.

¶ 35   Therefore, construing the statute as a whole and according to

  its plain meaning, we conclude that the OTCs are not subject to

  Breckenridge’s accommodation tax.1

                    C.   Expedia II is not Dispositive

¶ 36   In addition to arguing that the OTCs qualify as renters and

  lessors of hotel rooms, Breckenridge contends that Expedia II,


  1As an additional argument, Breckenridge contends that OTCs
  should pay taxes on the room rate charged plus services fees.
  Because we determine that the OTCs are not liable for
  accommodation taxes, we need not address this contention.

                                    16
  which concluded that OTCs are liable under Denver’s lodger’s tax,

  is dispositive for two reasons. First, Breckenridge asserts that

  Denver’s lodger’s tax is substantially similar to Breckenridge’s

  accommodation tax. Second, Breckenridge argues that we should

  reverse the district court’s decision because it relied on Expedia I,

  which was ultimately overturned. We are not persuaded.

¶ 37   In Expedia II, ¶ 11, the City and County of Denver sought to

  impose its lodger’s tax on the OTCs, which requires “vendors” to

  collect and remit the prescribed tax on the purchase price of any

  furnished lodging. The Denver ordinance defines “vendor” as a

  “person making sales of or furnishing lodging,” and defines “sale” as

  “furnishing for consideration.” Id. at ¶ 39 (quoting Denver Revised

  Municipal Code § 53-170(4), (8) (D.R.M.C.)). The plurality

  determined that “furnishing lodging for consideration . . . refers to

  selling, or providing for consideration, the right to overnight use of

  rooms or accommodations in the enumerated hotel-like facilities.”

  Id. at ¶ 23. But, “‘lodging’ does not refer to a room, as a commodity,

  or even title or a right of ownership of a room, but rather to the

  right of overnight use of rooms . . . .” Id. The opinion rendered by

  Justice Coats, Justice Márquez, and Justice Boatright held that


                                    17
  OTCs are vendors, for purposes of the lodger’s tax, because they

  furnish lodging for consideration. Id. at ¶ 22.

¶ 38   However, Breckenridge’s reliance on Justice Coat’s plurality

  decision in Expedia II is misplaced. “When a fragmented [c]ourt

  decides a case and no single rationale explaining the result enjoys

  the assent” of a majority of justices, Marks v. United States, 430

  U.S. 188, 193 (1977), “the holding of the [c]ourt may be viewed as

  that position taken by those Members who concurred in the

  judgments on the narrowest grounds.” Id. (quoting Gregg v.

  Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)).

  Accordingly, Justice Hood’s concurrence in Expedia II is instructive.

¶ 39   Although the concurrence agreed that OTCs are liable under

  the lodger’s tax, the concurrence reached this decision without

  using interpretive aids. Instead, the concurrence concluded that

  the plain language of the ordinance makes sufficiently clear that the

  OTCs qualify as vendors.

¶ 40   In its analysis, the concurrence defined “to furnish” as

  providing or supplying rooms to “any person who for consideration

  uses or has the right to use such rooms.” Expedia II, ¶ 42 (Hood,

  J., concurring in the judgment). It also noted that nothing in the


                                    18
  definition of furnish, nor in the ordinance, limits the term to the

  physical provision of a hotel room. Id. Therefore, because a

  customer’s entire transactional relationship is with the OTC, the

  OTCs clearly “provide or supply rooms to customers who pay

  consideration to the OTCs in exchange for rooms or the right to use

  rooms.” Id. at ¶ 43.

¶ 41   Breckenridge argues that we should extend the reasoning of

  Expedia II to the instant case and conclude that the OTCs are

  subject to the accommodation tax because they furnish lodging for

  consideration. While this argument has some appeal, it overlooks

  the different contexts surrounding the term “furnish,” as used in

  the Denver and Breckenridge codes. In Expedia II, the concurrence

  explained that the duty to collect Denver’s lodging tax is imposed on

  vendors who “make[] sales of or furnish[] lodging to a purchaser in

  the city.” Expedia II, ¶ 41 (quoting D.R.M.C. § 53-170(8)). For

  purposes of the Denver lodging tax, furnishing is defined as

  “provid[ing] or suppl[ying] to any person who for consideration uses

  or has the right to use such rooms.” Id. at ¶ 42.

¶ 42   Under B.T.C. section 3-4-1, the duty to collect the

  accommodation tax is imposed on those who “furnish[] [lodging] for


                                    19
  lease or rental.” The use of “furnish” in this context is

  distinguishable from that in Denver’s ordinance. Under Denver’s

  lodging tax, “furnishing lodging” indicates making hotel rooms

  available to purchasers. On the other hand, the Breckenridge code

  imposes liability only on those who furnish property for leasing or

  renting. And only those with a possessory interest can furnish

  property for leasing or renting. Accordingly, OTCs only furnish the

  opportunity to rent hotel rooms from hotels.

¶ 43   Furthermore, Breckenridge’s argument ignores the different

  terms used to describe the liable parties in the Denver and

  Breckenridge codes. Unlike the term “vendor,” (which is used in the

  Denver code and encompasses all parties that provide or supply

  rooms for consideration) the plain meaning of “renter” or “lessor,”

  restricts liability to only those who have a possessory interest in the

  property.

¶ 44   Additionally, even if we were to overlook the words “lease” and

  “rental,” the concept of furnishing is contained in the preamble to

  the B.T.C. We are not persuaded that the concept of furnishing as

  used in the context of a vendor, as in Expedia II, should inform our

  decision here simply because the preamble uses the term


                                    20
  “furnishes.” But, a term used in the preamble to a statute cannot

  be used to contradict the operative terms of the statute. A

  “preamble can neither restrain nor extend the meaning of an

  unambiguous statute.” 2A Norman Singer, Sutherland on Statutory

  Construction § 47.04, at 295 (7th ed. 2007); cf. Dist. Landowners Tr.

  v. Adams Cty., 104 Colo. 146, 150, 89 P.2d 251, 253 (1939) (where

  it was asserted that a preamble had been violated, the preamble

  could “not be invoked apart from specific provisions” of the statute).

¶ 45   We are also not persuaded that we must overturn the district

  court’s decision because it relied on Expedia I. The district court

  conducted a thorough analysis of the language of the ordinance and

  its application to the OTCs. It was not until after the district court

  concluded that the accommodation tax did not apply to the instant

  case that the court discussed Expedia I. And in doing so, the court

  observed that its holding was consistent with the division’s ruling in

  Expedia I. Therefore, we cannot determine that the court relied

  upon Expedia I in making its decision.




                                    21
   III.    The District Court Properly Granted Summary Judgment for
                    Breckenridge’s Accommodation Tax Claim

¶ 46      Next, Breckenridge contends that the court erred in granting

  summary judgment because genuine issues of material fact exist as

  to (1) whether OTCs acquire inventory; (2) whether OTCs provide

  customer service; and (3) the extent to which the hotels are involved

  in merchant model transactions. We disagree.

                          A.   Standard of Review

¶ 47      We review a court’s grant of summary judgment de novo.

  Williams v. State Farm Mut. Auto. Ins. Co., 195 P.3d 1158, 1160

  (Colo. App. 2008). Summary judgment is appropriate if the

  pleadings, depositions, answers to interrogatories, and admissions,

  together with any affidavits, establish that there is no genuine issue

  of a material fact, and the moving party is entitled to judgment as a

  matter of law. C.R.C.P. 56(c); City of Longmont v. Colo. Oil & Gas

  Ass’n, 2016 CO 29, ¶ 9. A triable issue of fact is one in which

  reasonable people could reach different conclusions about the

  evidence. People in Interest of S.N., 2014 COA 116, ¶ 24.

¶ 48      The moving party has the burden of establishing the absence

  of a genuine issue of material fact. Gibbons v. Ludlow, 2013 CO 49,



                                     22
  ¶ 11. The moving party “need only identify those portions of the

  record and affidavits which demonstrate an absence of a genuine

  issue of material fact.” Id. If the nonmoving party cannot produce

  sufficient evidence to establish a triable issue, the moving party is

  entitled to summary judgment as a matter of law. Id. A genuine

  issue of fact cannot be raised simply by means of argument. People

  in Interest of J.M.A., 803 P.2d 187, 193 (Colo. 1990).

            B.    There is No Genuine Issue of Material Fact

¶ 49   Breckenridge failed to meet its burden of producing sufficient

  evidence to establish that a genuine issue of fact exists as to

  whether OTCs acquire inventory, whether the OTCs provide

  customer service, and the extent of the hotels’ involvement in

  merchant model transactions.

¶ 50   First, Breckenridge argues that the court improperly resolved

  the issue as to whether OTCs acquire inventory, which could

  support the contention that they are lessors or renters.

  Breckenridge asserts that it provided evidence contrary to the OTCs’

  argument that they do not acquire inventory because they merely

  act as intermediaries. Specifically, Breckenridge points to the

  annual Securities and Exchange Commission (SEC) reports where


                                    23
  the OTCs allegedly admit to acquiring some inventory. But, after

  analyzing the SEC reports, the court found, and we agree, that the

  SEC filings refer primarily to the hotel’s inventory. And, any

  mention of the OTCs’ inventory concerns the inventory needed to

  facilitate a reservation. Moreover, OTCs enter into non-exclusive

  operating agreements in which OTCs agree to display information

  about a hotel, but make clear that OTCs have no right or ability to

  issue reservations themselves. Therefore, none of the record

  evidence marshalled by Breckenridge contradicts the numerous

  SEC reports and agreements between the parties indicating that

  hotels, not the OTCs, possess inventory. Consequently,

  Breckenridge failed to establish a triable issue of fact.

¶ 51   Second, Breckenridge argues that the court improperly

  resolved whether and to what extent the OTCs provide customer

  service. Specifically, Breckenridge contends that the taxable

  transaction arises when the OTCs accept a customer’s payment in

  exchange for the right to use the accommodation. However, the

  OTCs’ involvement in customer service relating to room reservations

  is immaterial because it does not indicate possessory interest.




                                     24
  Because no genuine issue of material fact was presented, summary

  judgment was appropriate.

¶ 52     Third, Breckenridge argues that the court improperly

  determined the degree to which hotels are involved in merchant

  model transactions. It says that it presented evidence that a

  consumer’s entire transaction is with the OTC, compensation is

  paid to the OTC, and no additional compensation is paid to the

  hotel after the purchaser becomes a guest. Breckenridge contends

  that the court ignored its evidence. But, none of these facts

  advance Breckenridge’s arguments because they do not indicate a

  possessory interest. Therefore, these facts are immaterial. See

  Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992) (“A material fact

  is simply a fact that will affect the outcome of the case.”).

¶ 53     Because reasonable people could not reach different

  conclusions on the three issues presented, we conclude that the

  court’s entry of summary judgment was proper.

       IV.   The District Court Lacked Subject Matter Jurisdiction to
                           Address the Sales Tax Claim

¶ 54     Breckenridge contends that the district court erred in

  concluding that it lacked subject matter jurisdiction over its sales



                                     25
  tax claim because Breckenridge failed to exhaust administrative

  remedies. We discern no error.

¶ 55   In reviewing a district court’s ruling on a jurisdictional issue,

  we will uphold its factual findings unless they are clearly erroneous,

  and we evaluate all legal conclusion de novo. Tidwell v. City & Cty.

  of Denver, 83 P.3d 75, 81 (Colo. 2003).

¶ 56   There is a “general jurisdictional requirement that a party

  exhaust available administrative remedies before seeking relief in a

  district court.” City & Cty. of Denver v. United Air Lines, Inc., 8 P.3d

  1206, 1212 (Colo. 2000). When “complete, adequate, and speedy

  administrative remedies are available, a party must pursue these

  remedies before filing suit in district court.” Id. Absent an

  exhaustion of administrative remedies, judicial review has been

  particularly disfavored in tax cases. Davison v. Bd. of Cty. Comm’rs,

  41 Colo. App. 344, 348, 585 P.2d 315, 348 (1978). The exhaustion

  requirement is subject to exceptions.

¶ 57   First, exhaustion is not required when it is clear beyond a

  reasonable doubt that administrative review would be futile because

  the agency will not provide the relief requested. United Air Lines, 8

  P.3d at 1213. Second, a party can circumvent exhaustion


                                     26
  requirements when the issue presents a matter of law that the

  agency lacks the authority or capacity to determine. Id.

  Breckenridge argues that it was not required to exhaust its own

  administrative remedies because doing so would be futile and the

  question of whether OTCs are subject to the sales tax was a

  question of law not subject to exhaustion requirements. We are not

  convinced.

¶ 58   The B.T.C. explicitly provides that the administrative authority

  has jurisdiction over the enforcement and collection of

  Breckenridge’s sales tax. The code states, in relevant part, that in

  the event “any person neglects or refuses to make a return in

  payment of the sales tax or to pay any sales tax as required,” the

  “finance director shall make an estimate . . . of the amount of taxes

  due . . . .” B.T.C. § 3-1-32(B)(1). Following the finance director’s

  review, a person can challenge the final decision by “proceed[ing] to

  have [the finance director’s final decision] reviewed by the district

  court.” B.T.C. § 3-1-36.

¶ 59   It is evident from the code that a party’s first step in seeking

  relief for unpaid sales taxes is to petition for administrative review

  from the finance director. And, only after undergoing


                                     27
  administrative review can Breckenridge petition for relief from the

  district court.

¶ 60   Breckenridge circumvented its own procedural requirements

  by first appealing to the district court for review. In its defense,

  Breckenridge argues that it was not required to seek administrative

  review because exceptions to the exhaustion requirement apply —

  any administrative relief would be futile, the issue presented a

  question of law that was not appropriate for administrative review,

  and exhaustion is not required under these circumstances because

  the interests underlying the exhaustion requirement are not

  implicated. We disagree.

¶ 61   Breckenridge asserts that it need not exhaust administrative

  remedies because the available procedures would not provide

  adequate relief. But, the code provides for the precise relief

  Breckenridge seeks. When determining the liability of a nonpaying

  party, like an OTC, the finance director has exclusive jurisdiction to

  assess unpaid taxes, interest, and penalties. B.T.C. § 3-1-32.

  When a party fails to pay outstanding taxes, the finance director is

  responsible for determining the amount owed. Id. The

  administrator can then initiate action to collect the amount due.


                                     28
  He may issue liens and warrants for the seizing and selling of real

  and personal property to satisfy the unpaid amount. B.T.C. § 3-1-

  32(C) (1), (2).

¶ 62    If Breckenridge was disappointed with the finance director’s

  decision, it could have petitioned for an administrative hearing to

  contest the finance director’s determination. B.T.C. § 3-1-35. Only

  after the finance director conducts a hearing may Breckenridge

  petition for district court review. B.T.C. § 3-1-36. Assuming the

  finance director determined the OTCs were liable for unpaid taxes,

  Breckenridge would have been awarded adequate relief had it

  exhausted the administrative requirements.

¶ 63    Breckenridge further argues that exhausting administrative

  procedures would have been futile because the OTCs publicly

  declared that they were unwilling to pay Breckenridge’s sales tax.

  In support, Breckenridge points to two cases where the

  administrator publicly announced its position on the issue;

  therefore, the court found exhaustion would have been futile. See

  Kuhn v. State Dep’t of Revenue, 817 P.2d 101, 104 (Colo. 1991)

  (there was no need to exhaust when the agency publicly stated it

  would not rule on any claim filed until the court had decided the


                                   29
  issue); Anderson v. Bd. of Adjustment for Zoning Appeals, 931 P.2d

  517, 521 (Colo. App. 1996) (exhaustion would have been futile as

  the parties had notice of the zoning administrator’s interpretation of

  the pertinent law).

¶ 64   Here, the finance director made no public declaration on the

  liability of the OTCs for unpaid sales taxes. Further, a

  disagreement between parties in which one party publicly disclaims

  liability is insufficient grounds to determine that administrative

  remedies are futile. Accordingly, we are unable to determine that

  administrative remedies would have been futile.

¶ 65   Second, Breckenridge contends exhaustion was inappropriate

  because the controversy involves a matter of law that the finance

  director did not have the authority or capacity to determine.

  However, this exception is limited and applies only to issues, such

  as constitutional matters, that “the agency lacks the necessary

  expertise to address” and those that “fall squarely in the province of

  the courts.” United Air Lines, 8 P.3d at 1213. Here, the issue of

  determining a nonpaying party’s tax liability falls squarely within

  the finance director’s jurisdiction as it is the administrator’s

  responsibility to determine tax liability, impose penalties and


                                     30
  interest, and initiate action to collect the debt due. See B.T.C. § 3-

  1-29. Undoubtedly, the finance director had the authority and

  expert capacity to determine the OTCs’ sales tax liability.

¶ 66   Breckenridge also contends that exhaustion was not required

  as courts “will excuse a party’s failure to exhaust available

  administrative remedies” in situations that “do not implicate the

  interests underlying the exhaustion requirement.” United Air Lines,

  8 P.3d at 1213. Breckenridge argues that the OTCs’ offensive use

  of the exhaustion doctrine as a merits defense fails to promote the

  policy reasons justifying exhaustion.

¶ 67   However, a party’s motive in raising another party’s failure to

  exhaust does not undermine the policy interests justifying the

  exhaustion requirement. Exhausting administrative procedures in

  this case would have served a number of significant interests. For

  instance, the finance director would have had an opportunity to

  apply his expertise and may have arrived at a satisfactory

  determination — therefore ultimately conserving judicial resources.

  Even if the issue had later been appealed, prior administrative

  review would have helped to develop a factual record for the district

  court’s review. See id. (developing a factual record, preventing the


                                    31
  interruption of the administrative process, preserving the autonomy

  of the agency, and conserving judicial resources are important

  policy interests of the exhaustion doctrine). Regardless of the OTCs’

  reasons for raising the issue of exhaustion, we determine that

  utilizing administrative procedures would have furthered a number

  of important interests underpinning the exhaustion requirement.

¶ 68       For these reasons, we conclude that the district court lacked

  subject matter jurisdiction to address Breckenridge’s unpaid sales

  tax claim. Instead, Breckenridge must exhaust its own

  administrative procedures before seeking judicial review.

      V.    The District Court Properly Denied Breckenridge’s Motion for
                                 Class Certification

¶ 69       Breckenridge also contends that the district court abused its

  discretion by denying Breckenridge’s request for class certification

  of fifty-five Colorado home rule cities that also have ordinances

  levying a lodger’s or accommodation tax for the purpose of imposing

  taxes, interest, and penalties on nonpaying parties.2




  2 Breckenridge also sought class certification for its sales tax claim,
  but the court dismissed it for failure to exhaust administrative
  remedies. We do not reach the question of whether a home rule

                                      32
¶ 70   The district court denied Breckenridge’s petition on multiple

  grounds. The court concluded that class certification was not

  appropriate pursuant to C.R.C.P. 23(b)(2) as Breckenridge was

  primarily seeking monetary damages. Additionally, Breckenridge

  failed to meet the requirements for C.R.C.P. 23(b)(3) certification

  because there was no predominance of common questions nor was

  class action the superior remedy.

¶ 71   Breckenridge argues that, contrary to the district court’s

  finding, it satisfied class certification requirements under C.R.C.P.

  23(b)(2), or alternatively under C.R.C.P. 23(b)(3). We are not

  persuaded.

                         A.   Standard of Review

¶ 72   When determining whether the district court erred in denying

  class certification, we review a district court’s decision for an abuse

  of discretion. Jackson v. Unocal Corp., 262 P.3d 874, 879 (Colo.

  2011). An abuse of discretion occurs if the decision is manifestly

  arbitrary, unreasonable, or unfair, or when the district court

  applies the incorrect legal standards. Id. A district court retains “a



  municipality may be represented in a class action without a vote of
  its citizens.

                                    33
  great deal of discretion in determining whether to certify a class

  action” under C.R.C.P. 23. Id. at 880 (quoting Goebel v. Colo. Dep’t

  of Insts., 764 P.2d 785, 794 (Colo. 1988)); accord Garcia v. Medved

  Chevrolet, Inc., 263 P.3d 92, 97 (Colo. 2011).

                              B.    Relevant Law

¶ 73      We turn first to the prerequisites of class certification. To

  obtain certification, a party must allege that (1) the class is so

  numerous that joinder of all its members is impractical; (2)

  questions of law or fact are common among the class members; (3)

  the claims or defenses of the class representative are typical of the

  class; and (4) the class representative is capable of fairly and

  adequately protecting the interests of the class. C.R.C.P. 23(a);

  Garcia v. Medved Chevrolet, Inc., 240 P.3d 371, 377 (Colo. App.

  2009), aff’d, 263 P.3d 92 (Colo. 2011). “[S]o long as the trial court

  rigorously analyzes the evidence, it retains discretion to find to its

  satisfaction whether the evidence supports each C.R.C.P. 23

  requirement.” Garcia, 263 P.3d at 97 (quoting Jackson, 262 P.3d at

  884).

¶ 74      After establishing the requirements above, a party must satisfy

  one of the three subsections of C.R.C.P. 23(b). As pertinent here,


                                       34
  C.R.C.P. 23(b)(2) certification “is appropriate for classes seeking

  predominantly injunctive or declaratory relief.” State v. Buckley

  Powder Co., 945 P.2d 841, 845 (Colo. 1997). But, certification is

  not prohibited where damages are sought in addition to injunctive

  and declaratory relief, so long as the damages are incidental to the

  other relief sought. Id. Even so, C.R.C.P. 23(b)(2) certification is

  not appropriate in cases where the final relief relates exclusively or

  predominantly to money damages. Id.

¶ 75   In contrast, C.R.C.P. 23(b)(3) is the appropriate avenue for

  parties seeking primarily monetary damages. Id. C.R.C.P. 23(b)(3)

  requires a petitioning party to demonstrate that (1) common

  questions of law or fact predominate over any questions affecting

  only individual members and (2) a class action is superior to other

  available remedies. Garcia, 240 P.3d at 377. When determining

  C.R.C.P. 23(b)(3) claims, a district court is afforded broad discretion

  in assessing whether a class action is the superior method to

  resolve the case. Buckley, 945 P.2d at 845.

                   C.    C.R.C.P. 23(b)(2) Certification

¶ 76   In the instant case, the district court engaged in extensive

  factfinding in its determination as to whether Breckenridge satisfied


                                    35
  the four prerequisites to class certification — numerosity,

  commonality, typicality, and adequacy of representation — and

  found that Breckenridge satisfied C.R.C.P. 23(a)’s threshold

  requirements. However, the court was unwilling to grant class

  certification under C.R.C.P. 23(b)(2) because Breckenridge was

  seeking primarily monetary damages.

¶ 77   While Breckenridge may have satisfied the four prerequisites

  to certification, we agree with the district court that Breckenridge

  primarily sought monetary damages. Breckenridge’s argument that

  any potential monetary damages are only incidental to the

  declaratory relief it seeks is unavailing. Four of Breckenridge’s five

  claims for relief expressly request relief in the form of monetary

  damages.

¶ 78   The fifth, although labeled as a request for declaratory

  judgment under C.R.C.P. 57, also predominantly seeks monetary

  relief. Scrutiny of Breckenridge’s specific declarations reveals that

  each relates to the recovery of unpaid taxes:

             i.    whether Defendants have a duty, under
             law, to collect Excise Taxes and/or Sales
             Taxes . . . ;




                                    36
             ii.  whether the Excise Taxes and/or Sales
             Taxes are based on the Retail Rate;

             iii. whether Defendants have a duty to remit
             these taxes to Plaintiff and the Class;

             iv. whether Defendants have failed to fulfill
             their duty under law to remit these taxes to
             Plaintiff and the Class; and

             v.    whether, under the appropriate ordinance
             and/or rule, the amount of tax due and owing
             to Plaintiff and the Class is to be calculated as
             a percentage of the Retail Rate, without regard
             to service fees, operation expenses and other
             amounts currently deducted by Defendants.

  Because the relief sought predominantly relates to money damages,

  we cannot determine that the district court abused its discretion in

  denying class certification under C.R.C.P. 23(b)(2).

                   D.    C.R.C.P. 23(b)(3) Certification

¶ 79   Alternatively, Breckenridge argues that class certification is

  appropriate under C.R.C.P. 23(b)(3). But, the district court found,

  and we agree, that Breckenridge failed to satisfy C.R.C.P. 23(b)(3)’s

  predominance and superiority requirements.

¶ 80   When reviewing a court’s decision regarding whether C.R.C.P.

  23(b)(3)’s requirements are satisfied, we will uphold a district

  court’s determination, absent an abuse of discretion, so long as the

  court “rigorously analyze[d] the evidence presented.” State Farm

                                    37
  Mut. Auto. Ins. Co. v. Reyher, 266 P.3d 383, 387 (Colo. 2011).

  Accordingly, we must determine whether the court sufficiently

  examined the evidence presented.

¶ 81   The court first found that Breckenridge failed to advance a

  classwide method of proving the OTCs’ liability for unpaid taxes. To

  satisfy C.R.C.P. 23(b)(3)’s predominance requirement, a party must

  demonstrate that legal or factual questions common to the class

  predominate over questions affecting individual members. This

  inquiry often turns on whether a “plaintiff advances a theory by

  which to prove or disprove ‘an element on a simultaneous, class-

  wide basis, since such proof obviates the need to examine each

  class member’s individual position.’” Farmers Ins. Exch. v. Benzing,

  206 P.3d 812, 820 (Colo. 2009) (quoting Lockwood Motors, Inc. v.

  Gen. Motors Corp., 162 F.R.D. 569, 580 (D. Minn. 1995)).

¶ 82   Breckenridge argues that the common question affecting all

  class members is whether merchant model transactions are subject

  to tax liability. Because OTCs predominantly utilize the same

  merchant model throughout the state, Breckenridge contends that

  class certification is appropriate for fifty-five municipalities with

  similar accommodation and sales tax provisions. However, what


                                     38
  Breckenridge fails to consider, and what the district court notes, is

  the varying language used throughout the ordinances.

¶ 83   The district court explained that “one of the chief

  responsibilities in adjudicating this action will be to interpret

  applicable municipal accommodation tax statutes and then apply

  the prevailing factual circumstance to determine whether the plain

  language creates a tax responsibility flowing from [the OTCs] to [the

  class member].” This is especially problematic when the ordinances

  are not identical, or even significantly similar. In its analysis, the

  court noted at least six material differences amongst the ordinances

  regarding the taxable amount.3 Additionally, the district court

  determined that the “ordinances utilize at least 20 different

  standards to determine who is obligated to collect and remit

  accommodation tax.”4 Consequently, the court was tasked with

  conducting “an exhaustive analysis of all 55 municipal statutes.”



  3 For example, Burlington requires taxing the “entire amount
  charged for furnishing rooms or accommodations,” whereas
  Larkspur taxes “the gross rental price of the lodging unit.”
  Burlington Code of Ordinances § 3.28.010; Larkspur Mun. Code
  § 4-4-20.
  4 The court noted that if it were to determine who is obligated to

  collect and remit accommodation tax, it would have to decide what

                                     39
¶ 84   Further, the district court examined a number of federal cases

  certifying class action that Breckenridge asserted involved similar

  actions against OTCs. See City of Rome v. Hotels.com, L.P., Civ. A.

  No. 4:05-CV-249-HLM, 2007 WL 6887932 (N.D. Ga. May 10, 2011);

  City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 527 (M.D.

  Tenn. 2010); County of Monroe v. Priceline.com, Inc., 265 F.R.D. 659,

  663 (S.D. Fla. 2010); City of Gallup v. Hotels.com, L.P., No. 07-CV-

  00644 JEC/RLP, 2009 WL 9056102 (D.N.M. July 7, 2009); City of

  San Antonio v. Hotels.com, Civ. No. SA-06-CA-381-OG, 2008 WL

  2486043 (W.D. Tex. May 27, 2008).

¶ 85   But, the court made clear that this particular situation is

  distinguishable from those because the fifty-five ordinances were

  not modeled after a common source, like a uniform enabling act.

  Consequently, unlike the federal cases where the court could utilize

  a single test to determine liability, the district court would have had

  to look to the plain language of each ordinance to determine the



  the controlling standard would be. Would it be “whether
  Defendants are ‘the lodging services vendor from whom the
  accommodations are rented,’ as required by Rifle?” Rifle Charter &
  Mun. Code § 4-6-10. Or, “in Commerce City, the relevant question
  would be whether Defendants are a ‘vendor or provider of hotel . . .
  services.” Commerce City Code of Ordinances § 20-246. 

                                    40
  OTCs’ liability. See Transponder Corp. of Denver v. Prop. Tax Adm’r,

  681 P.2d 499, 504 (Colo. 1984) (There is a “‘long-standing rule of

  statutory construction’ in Colorado . . . that tax statutes ‘will not be

  extended beyond the clear import of the language used, nor will

  their operation be extended by analogy . . . .’” (quoting Associated

  Dry Goods v. City of Arvada, 197 Colo. 491, 496, 593 P.2d 1375,

  1378 (1979))). Because the district court correctly analyzed the

  evidence presented, it did not abuse its discretion in finding that

  common questions do not predominate over questions affecting only

  individual members.

¶ 86   In addition, because it is likely Breckenridge would have to

  provide evidence and arguments on fifty-five separate theories to

  demonstrate the OTCs’ alleged liability for unpaid taxes, a class

  action is not the superior available method for the fair and efficient

  resolution of this issue.5




  5 Breckenridge also argues that class certification is appropriate for
  unnamed members who failed to exhaust administrative remedies.
  See State v. Golden’s Concrete Co., 962 P.2d 919, 924 (Colo. 1998)
  (“[U]nnamed class members need not exhaust administrative
  remedies so long as the named class plaintiff does so.”). Because
  we have determined that class certification is not available under

                                     41
  VI.   Breckenridge’s Civil Common Law Claims Are Conclusory and
                         We Will Not Address Them

¶ 87    Lastly, Breckenridge, asserting without factual detail and

  specificity, contends that the OTCs converted tax dollars and

  conspired to do so. Because we have concluded that the

  accommodation tax does not apply to OTCs, there is no liability

  under these theories either. Moreover, Breckenridge fails to provide

  any reasons to support its bald assertions. These arguments are

  underdeveloped and are not properly presented for our review. See

  People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to

  review the issues that were presented in the appeal “in a

  perfunctory or conclusory manner”).

                             VII. Conclusion

¶ 88    The judgment of the district court is affirmed.

        JUDGE WEBB concurs.

        JUDGE TERRY specially concurs.




  C.R.C.P. 23(b)(2) or C.R.C.P. 23(b)(3), we need not address this
  argument.

                                    42
       JUDGE TERRY, specially concurring.

¶ 89   Though my reasoning differs from that of the majority, I

  concur in the result of Part III of the majority opinion, concluding

  that the district court did not err in granting summary judgment for

  the online travel companies (OTCs). I also concur in Part IV,

  concluding that the Town of Breckenridge failed to exhaust

  administrative remedies; Part V, concluding that the district court

  did not err in denying class certification; and Part VI, declining to

  address Breckenridge’s common law claims.

¶ 90   And, because I conclude — based on an analysis somewhat

  different from the majority’s in Part II of the opinion — that the

  Breckenridge tax ordinance does not unambiguously apply to the

  markup charged by the OTCs, I concur in the overall result.

¶ 91   The majority concludes that the City & County of Denver v.

  Expedia, Inc., 2017 CO 32 (Expedia II), is not dispositive in this

  case, because of differences in the Denver and Breckenridge taxing

  ordinances, as well as factual differences in the two cases. I agree.

¶ 92   The result in Expedia II was driven by the language of Denver’s

  tax code. Both the plurality opinion and Justice Hood’s concurring

  opinion in that case relied on the language of the Denver code to


                                    43
  conclude that the OTCs are liable for the tax because they “furnish”

  lodging.

¶ 93   The Denver tax code at issue in Expedia II clearly imposes a

  tax on those furnishing lodging. Section 53-171(a) of the Denver

  Revised Municipal Code imposes a tax on the purchase of “lodging.”

  “Tax” is defined in section 53-170(6) to include “taxes due from a

  vendor.” “Vendor” is defined in section 53-170(8) to include a

  person “furnishing lodging to a purchaser in the city” (emphasis

  added). The tax is levied in section 53-171(b) on the purchase price

  paid or charged for “purchasing such lodging.” “Purchase or sale”

  is defined in section 53-170(4) to include “furnishing for

  consideration by any person of lodging within the city” (emphasis

  added).

¶ 94   Because both the plurality, Expedia II, ¶ 24, and Justice Hood,

  id. at ¶ 43, concluded that the OTCs furnish lodging (including

  rooms and accommodations), these portions of the Denver code

  clearly dictate that the OTCs are liable for the Denver tax. See id.

  at ¶ 44 (Hood, J., concurring in the judgment) (“[E]xempting the

  OTCs from the definition of ‘vendor’ would leave a portion of the




                                    44
  price paid for lodging untaxed, thereby frustrating rather than

  effectuating the city council’s clear intent to tax that purchase.”).

¶ 95      But Breckenridge’s tax code differs in substantial respects

  from Denver’s. Breckenridge’s code does not clearly impose the tax

  on the “furnishing” of rooms or accommodations. The only clear

  duty imposed on those who “furnish” lodging in the Breckenridge

  Town Code is to collect tax, as required by section 3-4-1, which

  says:

               [The] legislative intent of the town council in
               enacting this chapter is that every person who,
               for consideration, leases or rents any hotel
               room, motel room, or other accommodation
               located in the town shall pay and every person
               who furnishes for lease or rental any such
               accommodation shall collect the tax imposed by
               this chapter.

  (emphasis added.)

¶ 96      It is undisputed that the OTCs collected tax. What is disputed

  is whether any portion of the OTCs’ markup is to be included in the

  amount subject to the tax. Cf. Expedia II, ¶¶ 35, 36 (concluding

  that OTCs’ markup was taxable under Denver tax code); id. at ¶ 45

  (Hood, J., concurring in the judgment) (indicating that Denver’s tax




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  code imposes “tax on the entire purchase price of any lodging” sold

  by vendors, including the OTCs).

¶ 97   Unlike Denver’s code, Breckenridge’s code does not impose a

  tax on the furnishing of lodging. As I understand the plurality

  opinion and Justice Hood’s concurring opinion in Expedia II, the

  absence of such a provision in the Breckenridge code is a potential

  impediment to Breckenridge’s ability to impose a tax on that

  markup.

¶ 98   Also unlike Breckenridge’s code, Denver’s code imposes a tax

  on the “purchase price paid or charged for purchasing such lodging.”

  Denver Rev. Mun. Code § 53-171(b) (emphasis added). The Expedia

  II plurality opinion concluded that the OTCs’ markup is part of that

  purchase price paid or charged. Expedia II, ¶ 35. Justice Hood’s

  separate concurrence appears to agree with the concept that the

  markup is part of that purchase price. Id. at ¶ 45 (reasoning that

  Denver’s tax is imposed “on the entire purchase price of any

  lodging”).

¶ 99   In contrast, section 3-4-3 of the Breckenridge code imposes a

  tax on the “price paid for the leasing or rental” of a room. The

  majority concludes that the term “leasing or rental” in the


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  Breckenridge code has significance implicating possessory rights on

  the part of the entity making the rental. See supra ¶ 42 (concluding

  that “only those with a possessory interest can furnish property for

  leasing or renting”). The majority may be correct in concluding that

  this is a distinguishing factor between the two ordinances. But in

  any event, it is not patent that the OTCs’ markup is part of the

  price paid for “leasing or rental,” as distinct from the price paid for

  lodging.

¶ 100   We are required to construe tax provisions narrowly as

  imposing tax only on those items clearly enumerated in the tax

  code, and ambiguities should be resolved against the government

  and in favor of the taxpayer. City of Boulder v. Leanin’ Tree, Inc., 72

  P.3d 361, 367 (Colo. 2003).

¶ 101   I am therefore compelled to conclude that because the

  Breckenridge code does not explicitly impose a tax on the OTCs’

  markup, summary judgment was properly granted in favor of the

  OTCs.




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