*1 Colorado; Import Co. of Eel Golden Programs, describ- Director of Executive Rocky Industries, Inc., for Kellen the basis formed d/b/a that infractions ing the Factory Mountain Chocolate of ter- Rogers. The causes rejection of Studio; Yogurt, Inc. Pen urinal- Mission positive cocaine d/b/a included mination Trugoy, lHeense, Express; receipt guin's of a Inc. Harvest a driving without ysis, Vale, Inc.; Yogurt; ticket, obey an order Susan failure to TCBY speeding d/b/a Wahlstrom, program to K. and Lauren community corrections d/b/a ticket to speeding Petitioners, Collection, photocopy provide Colorado before Manager. The record his Case copy of the urinal- also contained court trial DENVER, AND COUNTY OF The CITY ysis test results. through OF The MANAGER transcript shows April AVIATION; Avia and The court the trial appeared before Rogers tion, City Re request awith "in connection with counsel spondents. Mr. community board corrections No. 99SC268. changed." confinement place of Rogers' arguments counsel, raised Rogers Through Colorado, Supreme Court of placement, from termination about his En Banc. length of urinalysis, and the
validity of his Sept.11,2000. sentence. remaining on his time incarceration the trial was before the matter At the time rea-
court, notice of the actual Rogers had community correc- for termination
sons program
tions, community corrections reasons provided documentation
had argu- Rogers no rejection, and made his or the community corrections
ment his adequately review had failed
court demonstrates The record
termination. admin- the informal court conducted trial referring in its role as review
istrative id.
agency. See judgment of
Accordingly, we reverse case to and remand this
the court of court's the trial to reinstate
it with directions 85(c) P. relief. denying Crim.
order Beanery; TWO, The Coffee INC.
AD d/b/a Inc.; Airport Concessions, Ser- Peaberry Quizno's
vices, Inc. d/b/a Boyer's D,
Coffee; Inc. GRD & d/b/a Coffees; Devarona Laura d/b/a Gourmet (Colorado Colors); Imports
Varona Pizza, Domino's Inc.
Dick & Jane d/b/a Baggage
Pizza; First Class Co. f/k/a
Hochstadt, Straw, Silverman, Strauss & P.C., Strauss, Richard Hochstadt, S. Jordan Denver, Colorado, Attorneys for Petitioners. Wortham, J. Wallace Attorney, City County Denver, Helen Eckardt Raabe, Assistant Attorney, City and County Denver, Denver, Colorado, Attor- neys Respondents. for pared and to be Opinion delivered RICE Justice public accoun- Court. furnished shall be tant. Such statement judg- review the granted certiorari every year which business calendar Two, Inc. appeals in Ad court of ment of the Agreement under this dur- was transacted *3 & of year. any part or of the ing the whole Petitioners, conces- twelve (Colo.App.1999). added.) (Emphasis International at Denver sionaires (Concessionaires), order year of (DIA) challenged an In late as the first calendar (Manager) for the end, Aviation Manager of nearing of the an Con- operation at DIA was a (City) interpreting City of Denver DIA requested clarification from cessionaires Con- Agreements between above-emphasized of the Concession lan- representatives of the City requiring Con- the and paragraph cessionaires 5.07. After consultations guage in Office, Manager public ac- Attorney's the City with the retain a certified to cessionaires (CPA) independent perform an 5, 1996, to April countant an issued order on of Aviation hearing A statements. of their revenue audit the advising that Concessionaires interpretation Manager's upheld the report officer a required them to submit question the had provision and Concessionaires an CPA after CPA disputed of the hearing officer's deci- and busi- of revenues the sought review of audited the statement 106(a)(4d). The pursuant to C.R.C.P. sion Manager's order also transacted. ness appeals af- the court of court and signed by district that financial statements indicated sepa- hearing officer's decision the company certifying firmed the sales officer of the an review, we conclude unacceptable reported were Upon and conces- judgments. rate interpreted properly hearing officer that the demonstrate who could extraordi- sionaires Accordingly, we af- disputed provision. the of hardship as a result the nary economic appeals. of the court judgment of explain firm their cir- should audit City. cumstances to the AND I. FACTS PROCEEDINGS notified the subsequently Concessionaires BELOW formally disputed Manag- City they entered and Concessionaires In 1998 argued that order. er's Concessionaires operate to agreements with the impos- into was these Paragraph 5.07 of at DIA. concessions a as written because CPA perform to sible to sub- required Concessionaires agreements state- ethically "certify" a revenue cannot total of all mit annual statements therefore, correct," and, to "true and ment during the transacted allowing and business an revenues be read as language should paragraph year. This preceding certify calendar the reve- of a concessionaire officer part: provided, in relevant Pursu- as true and correct. nue statements AND agreements with the AU- OF ACCOUNT 5.07 BOOKS ant to the written arising from the Date, disputes all providing that Upon the Commencement DITING. by an adminis- resolved agreements shall be limits keep shall within Concessionaire appointed a hearing, trative County Denver true and City and hearing was two-day hearing all officer accounts of Gross complete records and hearing officer transacted, 1996. The in November includ- held Revenues and business law, fact, findings of conclusions issued his deposits later than ing daily Not bank hearing January 1997. ruling on every year during February 28 of each and Manager's order affirmed the hereof, fur- officer shall Concessionaire the Term language was not ruled that and accurate statement a true nish impossible to that it was not ambiguous and and business of all revenues of the total be satisfied it could perform because calendar during preceding transacted opinion from audit deductions year (showingthe authorized "presents fairly, all statement the revenue computing the amount exclusions and business respects the revenues trans- material and business Revenues such Gross actions). pre- transacted." shall be Such sought appellate Concessionaires district court re ate consideration for an court hearing ruling pursuant evidentiary officer's whether there is sup- view sufficient CRCP 106(a)(4).1 port district court for the decision reached the adminis- tribunal, trative not whether there is affirming entered its order offi ade- quate evidentiary ruling July lower cer's on 1997. Concession Therefore, ap- court's decision. See id. sought by timely aires then further review pellate position court is in the same as the appeal appeals to the court court reviewing district court in an administrative affirmed the district court and decisionunder C.R.C.P. 106. See id. Two, Inc., in Ad 983 P.2d at granted petition 132. We Concessionaires' However, interpretation judgment for certiorari to review the question law is reviewed de novo appeals.2 court of *4 and we need not defer to a lower tribunal's interpretation of the Fibreglas contract. See
II. ANALYSIS Fabricators, Kylberg, Inc. v. 799 P.2d (Colo.1990). 374 guided by Our review is disputed Concessionaires contend that the principles well-established of contract language paragraph law. 5.07-"such state- primary goal interpretation of contract prepared ment shall be and certified to be give is to determine and effect to the intent independent an parties. East, Properties of the See USI Inc. public ambiguous accountant"-is because it (Colo.1997). Simpson, v. 938 P.2d susceptible to more than one reasonable parties The intent of the to a contract is to interpretation. Furthermore, Concession- primarily determined language from the argue aires that rules of construction of an of the instrument itself. See id. In ascer compel the conclusion taining provisions whether certain of an interpretation that their lan- agreement ambiguous, are the instrument's guage, which would allow an officer aof con- language must be examined and construed in certify cessionaire to the annual revenue statements, harmony plain generally accept with the adopted. disagree should be We meaning ed employed. of the words See id. argument with Concessionaires' for the rea- complete Written contracts that are and free sons stated below. ambiguity express will be found to parties intention of the and will be enforced A. Standard of Review according plain language. to their See id. Our review under CRCP. only Extrancous evidence is admissible to 106(a)(4) is limited to "a determination of prove intent where there is an [governmental] body whether or officer the terms of the contract. See id. jurisdiction has exceeded its or abused its discretion, based on the the rec Terms used in a contract are am ord body before the defendant biguous or officer." they susceptible when are to more 106(a)(4)(I). C.R.C.P. We review the record than interpretation. one reasonable See Co., evi Browder v. Fidelity Guaranty U.S. & to determine if any competent there is (Colo.1995). dence to officer's deci 893 P.2d Absent such Givan, Springs sion. See Colorado ambiguity, beyond we will not look the four (Colo.1995). appropri- agreement corners of the to determine the provides "any govern 1. This rule relief when agreements between the & body any judicial body mental or officer or lower (City) of Denver and its concession- exercising judicial quasi-judicial functions has aires at Denver International were jurisdiction discretion, exceeded its or abused its ambiguous. not plain, speedy adequate and there is no reme appeals 2. Whether the court of erred when it dy provided otherwise law." C.R.C.P. subject agree- held that section 5.07 of the 106(a)(4). provide ments concessionaires to with revenue statements granted following 2. We certiorari on the issues: in the of an course audit conducted an 1. Whether the court of erred when it accountant. ruling affirmed the trial court's and held that the contract in section 5.07 parties disputed language See by the meaning intended examination Our The mere fact P.2d at 178. Simpson, 938 clearly compo- contains two reveals (1) opinions may have different and verification of the accu- nents: review (2) statement, the contract interpretation racy revenue to be regarding ambiguity in the an By create performed by not itself an CPA. re- does id. contract. quiring supply professional opinion that the revenue state- Application
B. error ment is free from material after audit, components are both contend Concessionaires 5.07 is am satisfied. paragraph interpreted to allow biguous and should have before that we stated certify its a concessionaire an officer of hyper-technical reading allow a should not true and cor statement as annual revenue contract to defeat the rect, by a CPA. We input or review without parties. intentions of the unambiguous language is conclude and veri independent review requires an . general to be found [The rule] by a CPA. the revenue statement fication of give that courts should ef- [is] authorities within disputed language is contained purposes general feet to the of a contract. *5 titled agreement, the paragraph make due allowancefor a common 5.07 of Courts AND AUDITING." "BOOKSOF ACCOUNT failing, being human careless statement language provides, "Such choosing words. We should not allow in- certified to be true prepared and shall be ept expressions to defeat the evident inten- independent correct parties. tions the language unambiguously This accountant." Elder, 140 Colo. Hutchinson parties the intended to demonstrates (1959). interpret the P.2d statements revenue require Concessionaires' true agreement's language "certified to be so that the CPA a CPA to be reviewed reflecting parties' inten- and correct" as the independent statement as to provide an could independent of the tions to obtain assurance the information. This inde- accuracy of the accuracy the revenue statements. overall revenue state- pendent verification professional opinion independent An CPA's as to the provides a level of assurance ments from materi- statement is free that a revenue accuracy of the statements. overall independent level of provides error this al pro in the exact used While the fact that a CPA cannot The mere assurance. a CPA cannot contains terms vision "certify" or "true and use the words actual the intent of the employ, we conclude that opinion professional in a audit correct" indepen by requiring an fulfilled parties is par- the intentions should not defeat provide a perform an audit dent CPA to ties. state opinion that the revenue professional disputed language as Interpreting the material error. We ments are free from propose be inconsis- would Concessionaires undisputed indi evidence recognize that the the unambiguous language of the tent with "certi cannot use the terms cates that a CPA independent Requiring an CPA provision. However, the fy" and correct."3 and "true opinion provides a level of an audit render undisputed that in the record is also evidence accuracy as to the overall assurance opinion that a provide an audit CPA can a pres- which would not be revenue "presents fairly, in all financial statement simply a concessionaire ent if an officer of respects, and business the revenues material or himself revenue statements transacted." certified the Moreover, that Concession- record reveals undisputed 4. evidence that The record contains 3. hearing that expert at the witness testified aires' promulgated American Institute standards the term "certifica- although do not use provi- auditors contain no Public Accountants of Certified tion," lay person's of that teem use "certify" a common permitting CPA to use the words sions a type opinion. this of audit refers to "true and correct." proposed interpre- require agency reopen would the ad- herself. Concessionaires' compo- proceeding, also render the second take additional evi- tation would ministrative dence, disputed language meaningless apply- a new determination nent of the make ing appropriate legal would no re- standards in order because there parties' regarding to ascertain the intent view of the financial statements. disputed provision at the time of contract such, As we conclude that the formation. paragraph unambiguously 5.07 language of requires audit
indicating that the revenue statements are L. free from material error.5 Hearing Ruling
A. The
Officer's
III. CONCLUSION
Light
of the Evidence
sum,
we conclude that
refused to consider
paragraph
5.07 is not
demonstrating
provi-
the contract
par-
and that the
demonstrates the
ambiguity,
sion's
going
and ruled evidence
provide
ties' intention to
the intent of the
time
of con-
and verification of the overall
CPA review
tract formation to be inadmissible. The rec-
accuracy of the revenue statements. Accord-
(1)
ord demonstrates
a similar
ingly,
judgment
affirm
we
court of
(DIA)
to the Denver
International
appeals upholding
officer's inter-
contracts was
use
con-
pretation
disputed language.
recognized
tracts and had
achieved
con-
struction that
on the
intent at
bore
Justice HOBBS dissents.
(2)
formation;
the time of DIA contract
HOBBS,
unilaterally
Denver
dissenting:
changed this construction
Justice
*6
following
DIA
execution of the
contracts.
officer,
I respectfully
hearing
dissent. The
case,
The undetermined issue in this
which
view,
my
incorrectly
determined that no
subject
should be the
of this court's remand
regard
existed
to the
order,
is what the
regard
intended in
language of section 5.07 of the contract and
phrase
to the
pre-
"such statement shall be
ruled as inadmissible the
evi-
concessionaires'
pared and
to
be true and correct
contrary.
language
dence to the
The
states:
public
an
certified.
accountant."
shall
"Such statement
and certi-
fied to be true and correct
provision appears
six-paragraph
This
in a
public
hearing
accountant." The
of- portion
dealing
of the contract
with financial
ruling
contrary
ficer's
is
to Colorado law that
record-keeping
by concessionaires.
This
demonstrating
admits evidence
the ambiguity
portion
captioned
contract
is
"Books of Ac-
unambiguous
of a seemingly
provi-
Auditing."
count and
It addresses the con-
sion.
keep
responsibility
cessionaire's
to
within the
hearing
City
officer refused to
consider the
and
of Denver "true and com-
provision's
evidence of the
ambigu-
plete
contested
records and accounts of all Gross Reve-
ity;
regard
transacted,
officer's error in this
nues and
including
business
bank
error,
ruling
deposits."
led to his second
his
February
Not
later
than
28 of
disputed provision
unambiguous.
year
These
each
the concessionaire is to furnish
majority
are errors that the
does not correct. Denver with a true and accurate statement of
maj. op.
at 377-78. Because the record
the total of all revenues and business trans-
does not
find-
during
preceding
year.
officer's
acted
calendar
conclusions,
ings and
and because the
agrees
hear-
The concessionaire
to establish and
employ
ing officer did not
the appropriate
system bookkeeping
maintain a
satisfacto-
standards,
legal
I would
ry
reverse the
Manager
decision
to the
Auditor. Denver's
of the court of
with
I
during
instructions.
has
Aviation
access
normal business
5. Because we conclude that the
is un-
the four corners
of the document.
See Simpson,
ambiguous,
beyond
we do not consider
keep and contracts, executed DIA's concessionaires books, tapes, sales slips, register cash sales Stapleton-type containing the with deposit slips, and all duplicate or bankbooks they prepared for the and busi- gross revenues evidence of other 5, 1996, April opening of DIA. the Man- On period. for such transacted ness ager of Aviation issued a memorandum to Aviation, or Manager of and the Auditor concessionaires entitled: "Clarification representatives, "shall have their authorized Annual Language Statement Contract books any time to audit all of the right at and Business Transacted." This Revenue statements, documents, account, ree- bank memorandum stated: ords, returns, papers files" of the conces- and Questions regarding have arisen the inter- require right has the sionaire. Denver phrase pretation language. of this point-of-sale install cash concessionaire to "certified If, audit, Den- equipment. after an register account(ant)" independent certified gross that the revenues ver determines means, by, report or will be satisfied more were understated business transacted from an the CPA after year, the conces- percent for the than three has audited the statement of revenues audit, / pay as well then for sionaire must business transacted. deficiency, plus interest as the amount added.) (Emphasis percent deficiency eighteen on the amount Recognizing that no CPA would issue the the date due. per annum from Denver's specified certification expires years three perform an audit right to contracts, DIA Denver thus chose to substi- after the concessionaire's executed, tute, the DIA contracts were after Denver. The concession- year is delivered to prior yearly requirement for its CPA audit and the agrees that the Auditor aire company officer certification. acceptance of may inspect any sales Manager Revenue DeMuth, Lynn Denver's Ms. Debra accompanying report, tax return DIA, testified before the hear- of Finance at data, Denver. The filed with schedules ing officer that the any confiden- waives claim of concessionaire says: what it provision did not mean tiality in connection therewith. Q: you of the fact that And are aware *7 statement language question, "Such compliance generally with ac- is not in as true and and certified shall principles gener- cepted accounting public correct auditing for an ally accepted standards accountant," to the annual "true refers public accountant independent certified the total of all reve- accurate statement of certify gross of revenues to a statement pre- during the nues and business transacted being correct. as true and year." The word "audit" ceding calendar se, per be used. language, That cannot A: appears only provisions in the which allow Avia- and the of Auditor testified that the concessionaires She also financial rec- required an audit of the not to submit tion to conduct were required keep, any to is manner ords the concessionaire annual statements certified at DIA that certain businesses CPAs and charge the costs of the audit to annu- required the new year would not be have if for the concessionaire the statement percent. by more than three of other concession- required is understated audits al CPA aires. Staple- dispute that the do not Supervisor at Kiyemba, Audit Mr. language concern- D.C. ton contracts had similar (CPA) DIA, audit state- that annual also testified ing public accountant certifi- required not for the of from CPAs were principles and standards ments cation and despite con- similar certify Stapleton concessionaires them to a client's do not allow CPAs required CPA certifica- language that being true and correct. Ac- tract as company tion: cordingly, allowed officers
380 concesgion-
Q: types And from There are two different ambigui of aires, patent all the A ambiguity appears or from concessionaires at ties. on the face Stapleton Airport, you never of document and arises from the CPAs, Gross, you? annual itself. In re statements did See Estate 646 P.2d 396, (Colo.App.1981); 397 Black's Law Dic personally? A: I (7th ed.1999). tionary 80 A ambiguity latent Q. Yes. document, exists where the A. No. face, although clear susceptible on its is Q. meaning. more than one you If had received a See statement of Environmental
gross
Fund,
revenues
a concessionaire at Defense
Dep't
Inc. v. Colorado
Health,
(Colo.App.1986);
781 P.2d
776
Stapleton Airport
merely
that was
signed
compa-
Gross,
B. Latent
1995) (holding that
may
extrinsic evidence
introduced to determine whether
the term
1 conclude that a
latent
exists
policy
ambiguous). However,
insurance
disputed provision
of section 5.07 of the
may
we
not consider the
own extrin
*8
contract.
hearing
The
officer should have
expressions
sic
of intent.
See Fire Ins.
considered extrinsic evidence to determine
Exch.,
addition,
895 P.2d at
In
1148.
if we
parties
the intent of
the
as to the
ultimately determine that
the document
is
provision at the time of the contract's forma
unambiguous,
conditionally
the
admitted evi
states,
tion. As the majority
primary
the
dence
Lazy
must be stricken.
Dog
See
goal
interpretation
of contract
is to deter
Ranch,
381 intent, "certify" hearing the officer should also have the words permitted to use are not provision principles is unen- considered "two well established "true and correct." plain interpretation lan- governing and thus the the of contracts." forceable as written by meaning intended not be the guage can 297, 302, Cooley, v. 158 Colo. 406 Christmas (1965). First, doubt, parties. P.2d the 336 case of strongly against a contract is construed most that the contract to the fact addition Second, party the that drafted it. See id. written, the circum- as cannot be enforced proper where doubt exists as to the construc- surrounding making the of the con- stances clause, given tion of a it should construed be provide ample for the conclu- tract party protection favor of the for whose it ambiguity that an exists. sion obviously was inserted. See id. majority fail to consider this officer and the no am- determining extrinsic evidence development regard Factual of the case in contracts, Stapleton biguity exists. to the intent at the time of contract- the same exact which contained ing should determine which of these seem- here, dispute interpret- were the contracts in ingly contradictory principles of contract con- interpretation very differently from the ed applicable struction is this case. As a provi- suggested by plain language law, majority matter of chooses an inter- sion. Denver had not pretation that favors Denver. It reaches this provide Denver with reve- concessionaires to assumption based on the conclusion prepared by nue statements important aspect disputed provi- most Instead, historically ac- Denver had CPA. maj. sion is the involvement of a CPA. See to be true and cepted statements hand, op. at the other another 876-78. On by officers and correct the concessionaires' assumption past credible based on Denver's owners, input or review often without acceptance of officer certification of the annu- clearly demon- CPA. Such cireumstances al is that Denver revenue consid- regard with ambiguity that an exists strate accuracy ered the certification truth and ' provisions. to section 5.07s important be more than CPA involvement. found, it Onee an is should protect through Because Denver can itself giving resolved effect to the intent of provision the audit is available for use Exch., Aviation parties. Fire Ins. 895 P.2d at See 1143; Mining Eagle Rock Gold & Auditor, Duncan principle the contract Co., 569, 582, 111 P. Reduction 48 Colo. against city as draft- should be construed (1910). Interpretation intent may prevail. er ambiguous in an contract be provision ought not to conclude that a fact for the trial court to comes an issue of unambiguous when the actions of decide in the same manner as other drafter, ambigu- demonstrate that it is Exch., Fire Ins. 895 P.2d factual issues. See requiring ous. Denver's 1996 memorandum 1143; Rural Elec. Ass'n v. Public Union completed, a CPA audit to be instead (Colo. Comm'n, n. Utils. 661 P.2d previously acceptable, officer certification 1983). After a contract deemed necessary disput- if the would not have been may court use extrinsic evidence to the trial unambiguous. ed were ascertaining the intent of the assist parties. Cheyenne Dist. Mountain Sch. IL. (Colo. Thompson, # 12 v. respectfully I Accordingly, dissent 1993). time existing Facts at the the con would remand this case to the thereto, formed, prior may tract was *9 finding and determination on for further fact Duncan, proved by parol evidence. regard parties' intent the issue 111P. at 593. Colo. at the time of con- Here, officer should have ex- tracting. amined the extrinsic evidence available by in- intended determine what disputed provision in 5.07
cluding the section determining
of their contract.