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recognizing that "[t]he mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create ambiguity in the contract"
Summary of this case from Downtown Lofts LIHTC LLLP v. Travelers Prop. Cas. Co. of Am.Opinion
No. 99SC268
September 11, 2000
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED
Hochstadt, Straw, Strauss Silverman, P.C., Richard S. Strauss, Jordan Hochstadt, Denver, Colorado, Attorneys for Petitioners.
J. Wallace Wortham, City Attorney, City and County of Denver, Helen Eckardt Raabe, Assistant City Attorney, City and County of Denver, Denver, Colorado, Attorneys for Respondents.
We granted certiorari to review the judgment of the court of appeals in Ad Two, Inc. v. City County of Denver, 983 P.2d 128 (Colo.App. 1999). Petitioners, twelve concessionaires at Denver International Airport (DIA) (Concessionaires), challenged an order of the Manager of Aviation (Manager) for the City of Denver (City) interpreting a provision of the Concession Agreements between Concessionaires and the City as requiring Concessionaires to retain a certified public accountant (CPA) to perform an independent audit of their revenue statements. A hearing officer upheld the Manager's interpretation of the disputed provision and Concessionaires sought review of the hearing officer's decision pursuant to C.R.C.P. 106(a)(4). The district court and the court of appeals affirmed the hearing officer's decision in separate judgments. Upon review, we conclude that the hearing officer properly interpreted the disputed provision. Accordingly, we affirm the judgment of the court of appeals.
FACTS AND PROCEEDINGS BELOW
In 1993 and 1994, Concessionaires entered into agreements with the City to operate concessions at DIA. Paragraph 5.07 of these agreements required Concessionaires to submit annual statements of the total of all revenues and business transacted during the preceding calendar year. This paragraph provided, in relevant part:
5.07 BOOKS OF ACCOUNT AND AUDITING. Upon the Commencement Date, Concessionaire shall keep within the limits of the City and County of Denver true and complete records and accounts of all Gross Revenues and business transacted, including daily bank deposits. 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.)
In late 1995, as the first calendar year of operation at DIA was nearing an end, Concessionaires requested clarification from DIA representatives of the above-emphasized language in paragraph 5.07. After consultations with the City Attorney's Office, the Manager of Aviation issued an order on April 5, 1996, advising Concessionaires that the language in question required them to submit a report from an independent CPA after the CPA had audited the statement of revenues and business transacted. The Manager's order also indicated that financial statements signed by an officer of the company certifying the sales reported were unacceptable and that concessionaires who could demonstrate extraordinary economic hardship as a result of the independent audit should explain their circumstances to the City.
Concessionaires subsequently notified the City that they formally disputed the Manager's order. Concessionaires argued that the disputed language was ambiguous and impossible to perform as written because a CPA cannot ethically "certify" a revenue statement to be "true and correct," and, therefore, the language should be read as allowing an officer of a concessionaire to certify the revenue statements as true and correct. Pursuant to the written agreements with the City providing that all disputes arising from the agreements shall be resolved by an administrative hearing, the Manager appointed a hearing officer and a two-day hearing was held in November 1996. The hearing officer issued his findings of fact, conclusions of law, and ruling on January 10, 1997. The hearing officer affirmed the Manager's order and ruled that the disputed language was not ambiguous and that it was not impossible to perform because it could be satisfied by an audit opinion from an independent CPA that the revenue statement "presents fairly, in all material respects the revenues and business transacted."
Concessionaires sought district court review of the hearing officer's ruling pursuant to C.R.C.P. 106(a)(4). The district court entered its order affirming the hearing officer's ruling on July 18, 1997. Concessionaires then sought further review by timely appeal to the court of appeals and the court of appeals affirmed the district court and hearing officer in Ad Two, Inc., 983 P.2d at 132. We granted Concessionaires' petition for certiorari to review the judgment of the court of appeals.
This rule provides relief when "any governmental body or officer or any lower judicial body exercising judicial or quasi- judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law." C.R.C.P. 106(a)(4).
We granted certiorari on the following issues:
Whether the court of appeals erred when it affirmed the trial court's ruling and held that the contract language in section 5.07 of the agreements between the City County of Denver (City) and its concessionaires at Denver International Airport were not ambiguous.
Whether the court of appeals erred when it held that section 5.07 of the subject agreements required concessionaires to provide the City with revenue statements prepared in the course of an audit conducted by an independent certified public accountant.
ANALYSIS
Concessionaires contend that the disputed language of paragraph 5.07-"such statement shall be prepared and certified to be true and correct by an independent certified public accountant"-is ambiguous because it is susceptible to more than one reasonable interpretation. Furthermore, Concessionaires argue that rules of construction of an ambiguous contract compel the conclusion that their interpretation of the disputed language, which would allow an officer of a concessionaire to certify the annual revenue statements, should be adopted. We disagree with Concessionaires' argument for the reasons stated below.
A. Standard of Review
Our review under C.R.C.P. 106(a)(4) is limited to "a determination of whether the [governmental] body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer." C.R.C.P. 106(a)(4)(I). We review the record to determine if there is any competent evidence to support the hearing officer's decision. See City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995). The appropriate consideration for an appellate court is whether there is sufficient evidentiary support for the decision reached by the administrative tribunal, not whether there is adequate evidentiary support for the lower court's decision. See id. Therefore, an appellate court is in the same position as the district court in reviewing an administrative decision under C.R.C.P. 106. See id.
However, contract interpretation is a question of law that is reviewed de novo and we need not defer to a lower tribunal's interpretation of the contract. See Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo. 1990). Our review is guided by well-established principles of contract law. The primary goal of contract interpretation is to determine and give effect to the intent of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997). The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. See id. In ascertaining whether certain provisions of an agreement are ambiguous, the instrument's language must be examined and construed in harmony with the plain and generally accepted meaning of the words employed. See id. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language. See id. Extraneous evidence is only admissible to prove intent where there is an ambiguity in the terms of the contract. See id.
Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation. See Browder v. U.S. Fidelity Guaranty Co., 893 P.2d 132, 133 (Colo. 1995). Absent such ambiguity, we will not look beyond the four corners of the agreement to determine the meaning intended by the parties. See Simpson, 938 P.2d at 173. The mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract. See id.
B. Application
Concessionaires contend that the disputed language of paragraph 5.07 is ambiguous and should be interpreted to allow an officer of a concessionaire to certify its annual revenue statement as true and correct, without input or review by a CPA. We conclude that the language is unambiguous and requires an independent review and verification of the revenue statement by a CPA.
The disputed language is contained within paragraph 5.07 of the agreement, titled "BOOKS OF ACCOUNT AND AUDITING." The language provides, "Such statement shall be prepared and certified to be true and correct by an independent certified public accountant." This language unambiguously demonstrates that the parties intended to require Concessionaires' revenue statements to be reviewed by a CPA so that the CPA could provide an independent statement as to the accuracy of the information. This independent verification of the revenue statements provides a level of assurance as to the overall accuracy of the statements.
While the exact language used in the provision contains terms that a CPA cannot employ, we conclude that the intent of the parties is fulfilled by requiring an independent CPA to perform an audit and provide a professional opinion that the revenue statements are free from material error. We recognize that the undisputed evidence indicates that a CPA cannot use the terms "certify" and "true and correct." However, the evidence in the record is also undisputed that a CPA can provide an audit opinion that a financial statement "presents fairly, in all material respects, the revenues and business transacted."
The record contains undisputed evidence that standards promulgated by the American Institute of Certified Public Accountants contain no provisions permitting a CPA to use the words "certify" or "true and correct."
Moreover, the record reveals that Concessionaires' expert witness testified at the hearing that although auditors do not use the term "certification," a lay person's common use of that term refers to this type of audit opinion.
Our examination of the disputed language reveals that it clearly contains two components: (1) review and verification of the accuracy of the revenue statement, (2) to be performed by an independent CPA. By requiring an independent CPA to supply a professional opinion that the revenue statement is free from material error after an audit, both components of the provision are satisfied.
We have stated before that we should not allow a hyper-technical reading of the language in a contract to defeat the intentions of the parties.
[The general rule] to be found in the authorities [is] that courts should give effect to the general purposes of a contract. Courts make due allowance for a common human failing, that of being careless in choosing words. We should not allow inept expressions to defeat the evident intentions of the parties.
Hutchinson v. Elder, 140 Colo. 379, 383, 344 P.2d 1090, 1092 (1959). We interpret the agreement's language "certified to be true and correct" as reflecting the parties' intentions to obtain independent assurance of the overall accuracy of the revenue statements. An independent CPA's professional opinion that a revenue statement is free from material error provides this independent level of assurance. The mere fact that a CPA cannot use the actual words "certify" or "true and correct" in a professional audit opinion should not defeat the intentions of the parties.
Interpreting the disputed language as Concessionaires propose would be inconsistent with the unambiguous language of the provision. Requiring an independent CPA to render an audit opinion provides a level of assurance as to the overall accuracy of the revenue statement which would not be present if an officer of a concessionaire simply certified the revenue statements himself or herself. Concessionaires' proposed interpretation would also render the second component of the disputed language meaningless because there would be no independent review of the financial statements.
As such, we conclude that the disputed language of paragraph 5.07 unambiguously requires an independent audit by a CPA indicating that the revenue statements are free from material error.
Because we conclude that the language is unambiguous, we do not consider evidence beyond the four corners of the document. See Simpson, 938 P.2d at 173.
CONCLUSION
In sum, we conclude that the disputed language of paragraph 5.07 is not ambiguous and that the language demonstrates the parties' intention to provide for independent CPA review and verification of the overall accuracy of the revenue statements. Accordingly, we affirm the judgment of the court of appeals upholding the hearing officer's interpretation of the disputed language.
JUSTICE HOBBS dissents.