*1 ZAB, INC.; Resources, Inc.; Zalman Sport Corporation;
Daven
Resources, Inc., Petitioners CORPORATION,
BERENERGY
Respondent.
No. 04SC547. Colorado,
Supreme Court of
En Banc.
June *2 P.L.L.P.,
Lindquist Charles F. & Vennum Denver, Colorado, Brega, Rodgers, T. Scott Zab, Inc.; Attorneys Zalman for Petitioner Resources, Inc.; Resources, Sport Inc. and P.C., Silver, DeBoskey, Joe L. & Silver Colorado, Moore, Denver, Attorneys T. Brian Corporation. Petitioner Daven for LLP, Horowitz/Forbes, Horowitz, Jay S. Forbes, Denver, Colorado, Attor- C. Peter neys Respondent. for Opinion MARTINEZ delivered the Justice of the Court. granted certiorari to review the court
We Zab, Berenergy Corp. v. appeals’ opinion Inc., (Colo.App.2004), and de- appropriate termine whether relief Declaratory Judgment the Colorado Uniform (CUDJL) to of an Law declare the existence any rights or duties con- oral contract and tained therein. light statutory language as
In whole, trial exercise we hold that a existence of an discretion declare the exists, if one the terms of contract, such relief would “termi- or remove uncertain- nate case, ty.” the con- relief would terminate uncertainty by troversy defining and remove any relationship between Beren- contractual Corporations. Ac- and Sons’ ergy the Beren appeals cordingly, affirm the court we court for its case to remand this Berenergy’s for de- motion consideration claratory judgment. History
I. and Procedural Facts Corpo- Berenergy Beren formed Sheldon to invest (“Berenergy”) ration drilling acquisition of oil and ventures his death Sheldon gas wells. Before president and sole sharehold- was the Beren Berenergy. er of Beren, Beren, Zev A. David I. (col- Beren, Z. Jonathan Beren Daniel J. Sons”) individually lectively each the “Beren wholly independent, owned incorporated an participating S-corporation for gas drilling acquisition ventures in oil and Berenergy.1 energy obligation four corporations These had a contractual contin- (collectively Corporations”) “Beren charging Sons’ ue Petitioners the fixed $150.00 Berenergy sought Petitioners the instant action. rate. also to recover the undercharged amount since Sheldon Beren’s Berenergy financed the Beren Cor- Sons’ death. porations’ acquisition ten-percent of a inter- *3 property acquired in all of est the thereafter. Berenergy’s The trial court dismissed Monthly joint holdings from revenue the was for a on which claim failure to state claim applied either to the loan balances owed may granted. As to be relevant this Corporations Berenergy the Beren Sons’ to appeal, alternately the trial court Beren- held equal to ten-percent or distributed them in ergy’s claim must be dismissed because the portions. Berenergy remaining kept the six- prohibits declaring a trial court from CUDJL ty-percent. the of an existence oral contract or the terms n one. of 1991, Berenergy Between 1986 and charged Corporations the Beren Sons’ varia- appeals The court of As reversed. rele here, ble rates to on appellate cover the overhead costs the vant the court reasoned first jointly Berenergy owned wells. In al- permitted that the a CUDJL declaration of per charge tered the overhead to purported a $150.00 contract. Ber month, reduced, per proportionately energy well on Corp., 94 P.8d at 1235-36. Addition properties involving all Beren ally, the Sons’ Cor- appeals the court of the concluded porations. Berenergy charged has incorrectly Berenergy’s dismissed com $150.00 per per well month since that That plaint time. for on failure state claim which charge applied retroactively acqui- was granted. the relief could be Id. at 1236. projects. sition date on all then-current Corporations Sons’ Beren seek review time, Sheldon Beren died in 1996. At appellate ruling the Berenergy his estate permits obtained his stock judgment CUDJL es- operational corporation. tablishing control the over an oral the existence terms of dispute Berenergy A arose between and the contract.2 Corporations Beren Sons’ as to Ber-
energy obligation Analysis had a contractual to contin- II. charging ue per per the well month $150.00 ease, In this we are to decide asked parties pro- overhead rate. The have not may whether a trial court exercise discre its evidencing duced written contract Berener- tion to the declare existence of an oral con gy’s obligation charging to continue exists, any tract if one duties obli rate. $150.00 gations contained therein under CUDJL. determination, Pursuant to a 1998 probate making order In necessarily this we court, Sheldon Beren’s attempted statutory estate consider of CUDJL, of Berenergy sell all interests. Berener- codified in sections 13-51-101 to gy alleges (2005) the estate failed sell its interest and C.R.C.P. 57. corporation uncertainty because of surrounding per per well Statutory Interpretation month $150.00 A. overhead rate. of the CUDJL clarify
To
its obligations, Berenergy
Whether a trial court
exercise its
(1)
sought
a court
of
declaration
granting declaratory
discretion in
relief un
relationship
Berenergy
between
Ber-
statutory
and the
der the
is a matter
CUDJL
(2)
Corporations
en
interpretation,
Sons’
whether Ber-
which
review
novo.
we
de
Zab, Inc.;
Specifically,
incorporated
granted
1.
Zev
Specifically,
Beren
we
certiorari
the fol-
on
lowing
incorporated
Corporation;
David
issue:
Beren
Daven
Resources,
incorporated
Appeals
Jonathan Beren
Zalman
Whether the Court of
erred when it
Inc.;
incorporated Sport
judgment
and Daniel Beren
Re-
concluded that a
action
sources,
of,
may be
filed
determine
existence
Inc.
under,
an oral contract.
Edwards,
Temperance
rel.
Movement
Colo.
v. Tucker ex
ter-Church
See Gorman
(Colo.1998);
Baker,
398, 404,
see also Tidwell v.
297 P.2d
Denver,
County
City
light
v.
&
of CUDJL’s mandate
rel. Tidwell
ex
(Colo.2003).
liberally
act be
ad
83 P.3d
that the
construed and
ministered, the
combination
these sections
determination, we
making
suggests that
trial court
declare
statutory
in
principles
turn to traditional
and terms of an oral contract
existence
interpreting
mean
terpretation. When
such a
would terminate
statute,
goal is to effectuate the
ing
controversy.
Assembly. Reg’l
intent of
General
Lopez,
Transp. Dist.
however,
Corporations,
Beren
Sons’
(Colo.1996).
end,
must
To achieve that
we
declaratory judgments are limited to
claim
statutory scheme as a whole to
consider
*4
argu-
support
contracts. To
written
their
harmonious,
consistent,
and sensible
give
13-51-106,
ment,
rely
they
on section
C.R.S.
v.
to each individual section. Charnes
effect
(2005).
argue the section’s ex-
Petitioners
(Colo.1988).
Boom,
665,
P.2d
The
press
reference to “written contracts”
legislative declaration or
aids
writings constituting a
re-
“other
contract”
(2005).
legis
§ 24203(g), C.R.S.
review.
quires
to
other
to
us
construe all
references
specifically
declaration of the CUDJL
lative
in that section as written
“contracts”
con-
liberally
that
be
construed
provides
the act
tracts:
13-51-102;
§
Colo. State
and administered.
will,
deed,
Any person interested under
Dixon,
Optometric Exam’rs v.
Bd. of
contract,
writings
or other
consti-
uiritten
287,
(1968).
440 P.2d
status,
rights,
tuting a
whose
contract or
language
plain
of the CUDJL also instructs
legal
by a
other
are affected
or
relations
interpret
the act
accordance with
us to
ordinance, contract,
statute, municipal
or
purpose make uniform the law of
“general
to
may
any ques-
franchise
have determined
harmonize,
it and to
those states which enact
validity arising un-
or
tion
construction
possible,
far as
with federal laws” related
as
statute,
instrument,
ordinance,
the
der
13-51-104,
§
judgments.
to
contract, or
and obtain
franchise
a declara-
(2005).
C.R.S.
status,
rights,
legal
or other
rela-
tion
recognizes
also
The CUDJL
tions thereunder.
“power
have the
to declare
courts
broad
added).
§
(emphasis
They claim
13-51-106
status,
legal
rights,
and other
relations.”
express
of “written contracts”
inclusion
(2005).
13-51-105,
By failing to
§
C.R.S.
implies the exclusion of oral contracts.
types
rights
legal
or
relations
define the
relief,
may
which a court
over
correctly note the first
Petitioners
recognizes
may
that the
courts
CUDJL
portion
limited
written
of the statute is
subject
adjudicate
array
matters.
wide
“Any
person interested under
contracts:
contract,
writings consti
... written
or other
this
power
The limitations of
broad
tuting
Howev
a contract....”
13-51-106.
13-51-110,
recognized in
section
er,
separates
word “or”
the next clause:
That section states: “The court
status,
rights,
or other
rela
“or whose
or enter
refuse
render
contract_”
are affected
a ...
Id.
tions
judgment
such
or
or decree where
added). Generally,
presume
(emphasis
we
entered,
decree, if
not
rendered
would
disjunctive
word
marks
use of the
“or”
uncertainty
categories
legislative
unless
distinctive
(empha
giving
proceeding.”
rise to the
Id.
added).
clearly
contrary.
v.
to the
Carlson
intent
Together,
sis
those sections indi
Ferris,
(Colo.App.2002);
cate that a trial court
exercise its dis
People,
status,
see Armintrout
cretion
“declare
(Colo.1993).
relations,”
expressed
13-51-105,
In the absence
long
so
arguable
contrary,
intent
declaratory judgment
“termi
intent to
as the
would
sepa-
instance was to
controversy,”
legislature
nate the
from the second clause.
People
rel. In-
rate the first clause
generally
13-51-110. See
ex
only
The second clause refers
to “contracts”
1. Other States
and not to “written contracts” or “other writ-
A considérable number of the states to
ings
contract,”
constituting a
suggesting the
adopt
Declaratory Judgment
the Uniform
second clause is
qualifier
not limited
(“Uniform Act”)
Act
consider oral contract
“written.”
disputes within the discretion of the trial
Church,
court. See Lorenze v.
172 W.Va.
reasons,
For the aforementioned
the sec-
(1983)
(listing
S.E.2d
states
ond clause of section 13-51-106 could be read
“allowing
arising
declaration of
only
open
include
written contracts or be
contracts”).
many
under oral
While
to a
group
broader
of contracts.
it is
accept
proposition
state courts
without
unclear
whether the
of section 13-
see,
analysis,
e.g., Barnett Chevrolet Co. v.
prohibits
51-106
declaration of
and Collins,
275 S.W.2d
(Tex.Civ.App.
arising
duties
under oral contracts.
1955),
reasoning
Supreme
of the Missouri
Virginia Supreme
Court and West
Court is
Recognizing
ambiguity
the inherent
in sec
persuasive here. The Missouri court con
alone,
standing
proceed
tion
we
powers
cluded that
the broad
of the trial
consider the other sections of the statute to
courts were not limited
section 2
determine
ap
relief is
therefore, declaratory judgments
per
were
propriate under the
generally
CUDJL. See
missible in oral
disputes.
Temm v.
*5
Charnes,
(Colo.
378,
Allen v.
674 P.2d
381
Temm,
354 Mo.
191 S.W.2d
1984).
legislature expressly
directed
(1945). The
Virginia
similarly
West
that the act be construed to make uniform
declaratory
determined that
relief was not
the laws of
possible,
the states
where
limited to written contracts because of the
judiciary.
§
the federal
13-51-104.
we
purpose
remedial
of the act and the substan
first
harmony
the substantial
among
review
among jurisdictions
tial accord
in affording
judiciary
states and the federal
in allow
relief. We
analyses.
review both states’
ing declaratory relief over oral contract dis
To aid in
analyses
our review of the
used
putes. We then
statutory
consider
states,
by different
we
specific
refer to
sec-
Chames,
scheme
aas whole.
766 P.2d at
tions of the Uniform Act under the labels
667.
and
of the act
originally proposed by the uniform commis-
permit
also
the declaration of the existence
pertinent
discussion,
sion. As
to our
section
and terms of an oral contract.
1 of
corresponds
the Uniform Act
to section
13-51-105 of the CUDJL.
Section
of the
B. Other Jurisdictions
Uniform Act matches section 13-51-106 of
the CUDJL. The CUDJL labels section 5 of
requires
The CUDJL
interpret
us to
and
the Uniform Act section
construe the law
general
“as to effectuate its
(2005). Section 12 of the Uniform Act corre-
purpose to make uniform the law of those
sponds with section 13-51-102 of
harmonize,
states which enact it and to
far
as
CUDJL.
possible,
as
regulations
with federal laws and
subject
on the
declaratory
of
judgments and
In determining that the trial courts have
added).
(emphasis
decrees.”
13-51-104
the discretion to
in
relief
Although
jurisdictions
other
have not univer-
disputes,
Missouri considered
sally accepted
may
that courts
alongside
declare
section 2
sections
and 5. Section
arising
under an oral
previously quoted,
contract in all situa-
as
recognizes that trial
tions, a substantial number of the
courts have
“power
states
the broad
to declare
subsection,
status,
In
rights,
have.
legal
we recount
and
other
relations.”
majority
minority reasoning
explains
Section 5
employed
power
that this broad
is
by
not
states and conclude that
limited
section 2:
majority
reasoning
persuasive.
is more
We then turn
The enumeration in
sections
does
J
to the federal courts for
guidance
more
in
not
limit or restrict
the exercise
understanding
plain meaning
of the
general poivers
in section
in conferred
CUDJL.
any proceeding
relief is
“liberally
therein be
construed and ad-
judgment
in
or decree mil
tained
sought, which a
any
Id. This indicates that
ambi-
controversy or
an ministered.”
in
guity
granting
be
favor of
should
resolved
uncertainty.
Id.;
see
re Dahl’s
relief.
added.)
Supreme
The Missouri
(Emphasis
Estate,
adjudi-
(allowing
at
1 of the Uni
explained
Court
that: “Section
property
title to
on an oral
cation of
based
Act,
general power
form
which confers
part
because
itself
“[a]ct
legal
other
rela
‘rights, status and
declare
to be remedial
mandates
lib-
declared
tion[s]’,
provides that the
and section 5 which
administration.”).
eral construction and
Sec-
3,2,
and 4
not
sections
does
enumeration
ond, the Lorenze Court turned to the sub-
general
of the
limit or restrict
the exercise
”
harmony among
jurisdictions
other
stantial
Temm,
powers
1....
conferred
allowing a
in oral con-
declaration
Estate,
632;
In re Dahl’s
S.W.2d
see
Alabama, Alaska,
disputes, including:
tract
(1952) (“[Sec
Or.
Arkansas, California, Florida, Indiana, Iowa,
or
to 4
not limit
restrict
do]
tions [2
Louisiana,
Missouri, Montana,
Michigan,
general
powers
conferred
exercise
York,
Dakota, Texas,
Ohio, New
South
1],
any proceedings
where declar
[section
Lorenze,
light
328.
Utah.
305 S.E.2d
sought,
atory
in which
considerations,
two
Court
these
Lorenze
re
terminate the
decree will
any person
rights,
“whose
status
concluded
power
uncertainty.”). Because the
move an
legal
or other
relations
affected
rights,
status and
the courts
declare
obtain
declaration
not limited
other
relations is
status,
those
relations”
to make it clear that oral
this “would seem
under section
Id.
Temm,
passed
upon.”
be
contracts
only
S.W.2d at 632. Missouri
limits a
minority
drastically
lim-
A
states either
controversy by
ability
pass upon an oral
persons
it
affected
can
when
seek
declara-
justiciable
requiring the
of a
con
existence
*6
rights arising under oral contracts or
tion of
Keiser
troversy ripe for
v. Wied
decision.
a
prohibit
altogether.
them
Montana takes
mer,
63,
(Mo.App.1954). Re
66
263 S.W.2d
Although
approach.
the Montana
limited
on section 5 n
lying
language, Oregon, which
nothing in
Supreme Court
determined
Missouri, requires
reasoning to
uses similar
any legislative
2 “shows
intent to ex-
only
proceeding
that the
“terminate the con
“a
clude oral contracts” when
uncertainty.”
troversy
In re
or remove
declaratory judgment
in a
action will
decree
Estate, 248
at 702.
Dahl’s
P.2d
controversy
un-
an
Free,
552,
Carpenter
certainty,”
138 Mont.
Virginia
a
Supreme Court took
The West
882,
(1960),
only
trial courts
Lorenze,
357 P.2d
at
approach
related
in
305 S.E.2d
to hear oral contract dis-
have the discretion
The Lorenze
first found section
328.
Court
of an
putes
and terms
when
existence
ambiguous. The
reasoned that the sec-
court
by
par-
of the
oral contract are admitted
all
ability
originally speaks
tion
of the court’s
to
v. Dist.
ex rel. Indus. Indem. Co.
ties. State
contract” and
declare
under a “written
438,
Court,
10, 544
169 Mont.
P.2d
“rights
arising
duties
un-
then turns
Hardland,
78,
(1975); Mahan v.
147 Mont.
‘contract,’
employing in this
der a
without
“
156,
(1966).
410 P.2d
qualifier ‘written.’
Id.
second context the
limited its
by
Supreme Court
ambiguity
created
The Montana
To resolve
deny declar-
language,
Virginia
holding because the state courts
differing
the West
Su-
a deter-
atory
requires
act
when the action
preme
of the
relief
Court turned to
“ordinarily a
in
facts:
disputed
case law mination of
and the “substantial accord
”
First,
declaratory judgment
jurisdictions....
Id.
court will refuse a
from other
only
judicial
a
inves-
can be
after
purpose of the act which
made
Lorenze Court noted the
”
remedial, i.e.,
disputed
....
ex rel.
tigation of
facts
State
is
“to settle and afford relief
Co.,
(citing
at
insecurity
respect
with
Indus. Indem.
from
81).
relations,”
p.
Declaratory Judgments
status and other
C.J.S.
of an
Determining
and terms
act
that the
con-
the existence
and the
mandates
requires
contract
trial court to
“where the declaration will neither terminate
oral
make
judicial investigation
uncertainty,
disputed
controversy
nor remove an
disfavored
Accordingly,
prohibits
5].”
facts.
Montana
de-
a limitation on
Id.
[section is]
[section
Id.;
claratory
Thus,
relief in
situations.
such
Ma-
at 697.
a declaration
ter-
when
would
han, 410
at
controversy
P.2d
uncer-
minate a
remove an
tainty,
necessarily
section 2 does not
act as a
disagree
reasoning
We
discretion,
limitation
on the
Proceedings
court.
under
Montana
may
disputes.
a trial
hear oral
court
may
factual
include
determinations.
CUDJL
Carpenter,
(interpreting
See
259
Act, however,
disputes,
long as the action meets the
the Uniform
so
ry
not enact
did
discretionary
litigant
if the
al-
first determine
federal
test.
when a
so we must
reasoning
applicable
inquiry.
to our
in
leges
that a
an
declaration
clarify
dispute
legal relations
will
determining
grant
declarato
uncertainty,
courts
the federal
ques
relief,
weigh two
ry
federal courts
See,
e.g.,
have afforded
relief.
proposed by Professor Borch-
originally
tions
N.Y.,
H.R.
Transit
v.
N.H. &
Advertisers
ard,
Act.
State
the co-writer
the Uniform
(2d
Co.,
Cir.1952); Walling
194
v.
F.2d 907
Mhoon,
979,
F.3d
Co. v.
31
Farm Fire & Cas.
Co.,
Supply
F.2d
Green Head Bit &
138
453
(10th Cir.1994); see
v. Nat’l
983
White
Union
(10th Cir.1943).
Pa.,
Pittsburgh,
913 F.2d
Fire Ins. Co. of
165,
(4th Cir.1990); Tempco Elec. Heater
168
interpret
legislature
intended that we
Inc.,
Eng’g,
F.2d
Corp. Omega
819
749
v.
JL “as
and construe the CUD
to effectuate
(7th
Sutton,
Cir.1987);
v.
783 F.2d
Guerra
general purpose to make
the law of
uniform
(9th
Cir.1986);
Trunk
Grand
W.
1376
enact it
to harmonize
those states which
F.2d
Corp.,
R.R.
Co. v. Consol. Rail
regulations.” §
... with
laws and
13-
federal
(6th Cir.1984);
Prop. & Liab.
Metro.
Ins.
harmony in afford-
51-104. The substantial
(1st
Kirkwood,
Co. v.
F.2d
Cir.
con-
ing
relief over oral contract
Vance,
1984);
v.
F.2d
President
strongly
troversies
indicates the CUDJL
(D.C.Cir.1980);
Corp.
n. 76
Chem.
Broadview
declaratory judgments in
situa-
permits
such
(2d
Corp.,
v.
Loctite
F.2d
Cir.
tions.
1969).
test,
discretionary
Under
clarify
inquire
must
into whether relief will
C. Conclusions of Law
or settle
relations and terminate uncer
agree
reasoning
We
with the
of our sister
tainty:
13-51-109,
as sec-
states
known
under the cir-
Will a declaration
above, directly
tion 5
addresses Petitioners’
cumstances,
clarify
or settle
serve
argument
13-51-106 limits de-
that section
in issue? Will it terminate or
relations
Temm,
claratory relief to written contracts.
uncertainty giving
from the
afford relief
Estate,
632; In re
191 S.W.2d at
Dahl’s
If
proceeding?
to the
an affirmative
rise
P.2d at 702. That section states:
questions,
had
can be
to both
answer
The enumeration
sections 18-51-106
case;
not,
if
it
trial court should hear
limit
restrict
18-51-108 does not
to do
should decline
so.
powers
general
exercise
conferred
Mhoon,
31 F.3d
any proceeding
these
trial courts also utilize
dis-
Colorado
sought,
declaratory relief
cretionary
determining
considerations
which a
or decree mil tenninate
See
whether to issue
relief.
Peo-
uncertainty.
ple
Temperance
ex rel. Inter-Church
Move-
added).
13-
(emphasis
Section
13-51-109
Baker,
398, 404,
133 Colo.
ment
provides
power
51-109
broad
Accordingly,
*8
status,
rights,
and other
courts
“declare
grant
refusal to
federal court’s allowance or
recognized in
13-
legal relations” as
judgments in
contract
oral
dis-
51-105,
by
is
of
not limited
discretionary test aids
putes under the
our
declaratory judg-
a
section 13-51-106 when
inquiry.
controversy or
ment would “terminate
routinely used the
The federal courts have
uncertainty.” §
an
13-51-109.
determining
grant
declara-
test in
whether
See,
Thus,
the abili-
tory
the trial court has
disputes.
in written contract
whether
Co.,
contract
ty to declare the existence
an oral
e.g.,
v. Continental Cas.
866 F.2d
Kunkel
(10th Cir.1989). Yet,
exists,
rights
obligations
any
if
nothing in
one
therein,
dependent on a res-
is not
limits
contained
test’s considerations
ambiguity
inherent
or otherwise re-
olution
actions to written contracts
Instead,
fact,
it de-
in isolation.
subject
declarato-
13-51-106 read
stricts the
matter.
dispute
the re-
pends on
meets
ry
granted in all kinds of contract
relief is
quirements contained in
permit
section 13-51-109.
us to
trial courts
rights,
to “declare
status,
Under section
relations,”
trial court
legal
and other
section 13-
disputes
51-105,
resolve oral contract
when a decla-
when a declaration would terminate
status,
rights,
ration
legal
and
controversy
rela-
insecurity.
leg-
eliminate
tions will
controversy
“terminate the
or re-
islature further directed
liberally
that we
uncertainty.”
move an
construe the act to further its
pur-
remedial
pose
granting
ready
speedy remedy
and
As
Virginia
noted
the West
Su
Colo,
Baker,
to actual controversies. See
Court,
preme
the remedial
of the
at
261 Court, Accordingly, the trial court interests. Troelstrup v. P.2d Dist. relief. failing (Colo.1986). to render de- trial abused discretion court claratory relief in this situation. in oral that con- discretion should exercise of rights, disputes where a declaration tract Conclusion IY. status, legal would “terminate relations uncertainty.” controversy or an to the trial court for its consid- the We remand 13-51-105, 13-51-109; § §§ 13-51-110. motion Berenergy’s see eration of for judgment. limited to cases Declaratory relief is not contract and existence of an oral
where the EID, specially concurs. Justice by are admitted the terms contained therein Instead, parties. a court make all of the EID, specially concurring. Justice to whether a determination as the factual majority finds that 106 is first section so, if the terms contained exists ambiguous it as to whether limits 13-51-113; § American Fami- therein. See contracts, it relief to and then em- written Bowser, P.2d ly Mut. Ins. Co. interpretive in order to ploys host of aids (courts may make fac- (Colo.App.1989) ambiguity. example, For it tra- resolve that declaratory judgment determinations tual jurisdictions the of other with verses caselaw actions). A exercise of discre- favorable eye harmonizing an toward our law (1) “the will is warranted when tion Maj. op. I think this theirs. at 256. Because clarifying purpose in and set- serve a useful case, I it plain language would not find is (2) in issue” and tling the relations necessary secondary inter- to such resort and afford relief from “when it will terminate pretive aids. uncertainty, insecurity, controversy my analysis section I would start not with Baker, proceeding.” giving rise to the does, majority rather with as the but Colo, If at 277. neither P.2d 13-51-109, the enu- section which states that accomplished, the should “result can be is not a limitation on meration in section 106 prayed to render the declaration decline authority declaratory relief a court’s to issue Id. [for].” controversy or re- that “will terminate Here, Berenergy to terminate the seeks uncertainty.” move an controversy Berenergy and the between Ber- negates the statu- Section 13-51-109 by clarifying Corporations en Sons’ tory expressio est construction maxim unius relationship exists between the contractual thing expression of one exclusio alterius-the parties of such a defining See, the terms e.g., implies the other. exclusion (2001) relationship. The court abused its dis- Mack, Beeghly v. P.3d Berenergy’s maxim); failing Taylor de- (employing cretion review v. Canter- (Colo.2004)(Coats, J., Troelstrup, claratory judgment bury, action. See P.3d (same). Declaratory dissenting) thus makes at 1012. will Section 109 illustrative, clarifying the clear that section 13-51-106 an the useful serve exclusive, relations, instances status, not an enumeration of parties rights, declaratory relief may issue which courts establishing whether a contractual relation- controversy re- that “will terminate ship It will exists. uncertainty.” doing, In so it direct- move par- between the and remove phrased ly argument, as petitioners’ refutes any by defining the such rela- terms of ties majority, express “the inclusion including establishing whether Ber- tionship, implies [in 106] of ‘written contracts’ energy obligated charging to continue Maj. op. at contracts.” the exclusion of oral per per well month overhead. $150.00 concludes, majority eventually 255. As the declaration, Berenergy can Armed with any ambiguity in section 106 is somewhat corpo- fair market value determine is not point beside because corporation attempt ration and to sell any authority in limitation on the pro- according to the issued mandate Id. event. Similarly, the Beren Sons can bate court. ambi- rest our on in We should not decisions whether to retain their interests decide case. language resolves the guity plain or sell their Corporations Beren Sons’ *10 Here, course, the result is the same under approach,
either but other eases the differ-
ence could be outcome-determinative. Even case, analysis impor- differs in an way. finding
tant After an “inherent ambi-
guity” majority in section turns to (2005), which instructs Declaratory
that the Colorado Judg- Uniform
ments Law be construed to make uniform
the laws of the states to the extent
possible, harmony with federal law. After
surveying jurisdictions, the caselaw of other 256-59,
maj. op. the court sides with
“majority reasoning.” my Id. at 256. Under contrast,
analysis, by I find the caselaw from jurisdictions
other instructive not because
there are more cases on one side of the other, question
“written contract” than the
but because other courts have looked to their
jurisdiction’s counterpart to section 109 and
come to plain the same conclusion about its See,
meaning. Temm, e.g., Temm v. 354 Mo. (1945); 191 S.W.2d 632-33 In re Estate,
Dahl’s 196 Or. (1952). Declaratory judgments permit-
ted cases such as this one not because jurisdictions them, permit but because of the statute dictates that re-
sult.
The COLORADO GENERAL AS-
SEMBLY, Petitioner/Cross-
Respondent, OWENS, capacity
William in his official Colorado;
as Governor of the State of Coffman,
Mike capacity in his official as
State Treasurer of the State of Colora-
do; Shenefelt, and Leslie in his official
capacity as State Controller for Colorado, Respondents/Cross-
State of
Petitioners.
No. 04SC816.
Supreme Colorado, Court of
En Banc.
June