Ad Two, Inc. v. City and County of Denver, 97CA1474.
| Citation | 983 P.2d 128 |
| Decision Date | 04 February 1999 |
| Docket Number | No. 97CA1474.,97CA1474. |
| Parties | AD TWO, INC. d/b/a The Coffee Beanery; Airport Concessions, Inc.; Airport Services, Inc. d/b/a Quizno's and Peaberry Coffee; GRD & D, Inc. d/b/a Boyers Gourmet Coffees; Laura De Varona d/b/a Varona Imports (Colorado Colors); Dick & Jane Pizza, Inc. d/b/a Domino's Pizza; First Class Baggage Co., f/k/a Golden Eel Import Co. of Colorado; Kellen Industries, Inc. d/b/a Rocky Mountain Chocolate Factory; Kellen Industries, Inc. d/b/a The Studio; Danny A. Lopez, III d/b/a Roger's Top Cone; Mission Yogurt, Inc. d/b/a Penguin's Harvest Express; The Three Chocolatiers, Inc. d/b/a Stephany's Chocolates; Trugoy, Inc. d/b/a TCBY Yogurt; Susan Vale, Inc.; and Lauren K. Wahlstrom d/b/a Colorado Collection, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, by and through the Manager of Aviation; and James C. DeLong, Manager of Aviation, City and County of Denver, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Hochstadt, Straw & Strauss, P.C., Richard S. Strauss, Denver, Colorado, for Plaintiffs-Appellants.
Daniel E. Muse, City Attorney, Helen Eckardt Raabe, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.
Opinion by Judge MARQUEZ.
Pursuant to C.R.C.P. 106(a)(4), plaintiffs, concessionaires at Denver International Airport (DIA), seek review of an order affirming a determination by a hearing officer that their Concession Agreements (agreements) with the City and County of Denver (City) required them to retain an independent certified public accountant (CPA) to issue an opinion as to the accuracy of their revenue statements. We affirm.
In 1993 and 1994, plaintiffs entered into agreements with the City to operate concessions at DIA. In late 1994, plaintiffs recognized that the agreements contained a provision which required them to submit to the City each year a statement of total revenue and business transacted for the calendar year prepared and certified to be true and correct by an independent certified public accountant.
The contractual provision at issue in relevant part provides:
Not later than February 28 of each and every year during the Term hereof, Concessionaire shall furnish to City a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year (showing the authorized deductions or exclusions in computing the amount of such Gross Revenues and business transactions). Such statement shall be prepared and certified to be true and correct by an independent certified public accountant. Such statement shall be furnished for every calendar year in which business was transacted under this Agreement during the whole or any part of the year. (emphasis added)
Plaintiffs sought clarification from DIA personnel, and after contacting the City's Attorney's office, Denver's manager of aviation issued a letter on April 5, 1996. He informed the concessionaires that the phrase "`certified to be true and correct by an independent certified public accountant' means or will be satisfied by, a report from an independent CPA after the CPA has audited the statement of revenues and business transacted." The letter also indicated that it was unacceptable to submit annual statements signed by an officer of the company certifying the sales reported to the City, and that tenants who could demonstrate extraordinary economic hardship should explain their circumstances to the internal auditor of the City.
Believing the costs of such audits to be prohibitive, plaintiffs petitioned for an administrative hearing. After receiving an adverse ruling, plaintiffs sought review in the district court pursuant to C.R.C.P. 106(a)(4) challenging the hearing officer's interpretation of the agreements. Plaintiffs now seek review of the court's order affirming that ruling.
The plaintiffs contend that, contrary to the hearing officer's ruling, the language in the agreement is ambiguous because it requires "certification" rather than an "audit report." This contention is based on the assertions that a CPA can only provide a compilation, a review, an agreed-upon procedures report, and an audit report, and the agreement does not state what is required if a CPA cannot provide the required certification. Plaintiffs further assert that a CPA cannot certify that the annual statements of revenue are true and correct and that such certification is precluded by law. We conclude that the agreements are not ambiguous.
Appellate review under C.R.C.P. 106(a)(4) is limited to consideration of whether any governmental body or officer has exceeded its jurisdiction or abused its discretion. Regents of University of Colorado v. City & County of Denver, 929 P.2d 58 (Colo. App.1996). Under this standard, we review the record to ascertain whether there is any competent evidence to support the hearing officer's decision. Getsch v. Hawker, 748 P.2d 1304 (Colo.App.1987).
However, contract interpretation is a question of law and may be reviewed de novo. City of Englewood v. Commercial Union Assurance Cos., 940 P.2d 948 (Colo.App. 1996)
(cert. granted July 28, 1997).
A court's duty is to interpret a contract in a manner which effectuates the manifest intention of the parties at the time the contract was signed. Roemmich v. Lutheran Hospitals & Homes Society, 934 P.2d 873 (Colo.App.1996).
Whether a contractual provision is ambiguous is a question of law, Fire Insurance Exchange v. Rael, 895 P.2d 1139 (Colo. App.1995), and reviewing courts are not bound by a trial court's decision on the ambiguity of a contract. Cheyenne Mountain School District No. 12 v. Thompson, 861 P.2d 711 (Colo.1993).
A written instrument is ambiguous when it is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of a term. In re Trusts Created by Ferguson, 929 P.2d 33 (Colo.App.1996). Yet, a mere disagreement between the parties as to the interpretation of an agreement does not in itself create an ambiguity as a matter of law. Union Rural Electric Ass'n v. Public Utilities Commission, 661 P.2d 247 (Colo.1983).
To ascertain whether certain provisions of a contract are ambiguous, the language used therein must be examined and construed in harmony with the plain and generally accepted meaning of the words employed and by reference to all the parts and provisions of the agreement and the nature of the transaction which forms its subject matter. Cheyenne Mountain School District No. 12 v. Thompson, supra.
Here, the language in question is found in a clause entitled "BOOKS OF ACCOUNT AND AUDITING." Although the agreement uses the term "certified" instead of "audit," the hearing officer relied on a dictionary definition which defines "certify" as meaning, in part, "to attest authoritatively... to present in formal communication, to attest as being true or as represented or as meeting a standard." See City of Englewood v. Commercial Union Assurance Cos., supra
().
Here, as the hearing officer concluded, the plain and ordinary meaning of the language at issue requires that plaintiffs' revenue statements be reviewed by an independent certified public accountant and that the accountant provide an independent statement as to the accuracy of that information. In our view, the agreement simply seeks confirmation or assurance from an independent certified public accountant that the information provided is free from material error.
Further, the meaning of "certify" and the title of the clause are consistent with a requirement for an audit. See City of Ouray v. Olin, 761 P.2d 784 (Colo.1988)
(title of legislation is relevant to the determination of legislative intent).
Thus, the use of these terms does not create uncertainty or ambiguity as to the requirement that an audit be conducted.
Pointing to the cost of an audit, which they assert...
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