C.r.c.p. 57
C.r.c.p. 57
Annotation I. General Consideration. Law reviews. For article, "Declaratory Judgments in Colorado", see 6 Dicta 20 (Feb. 1929). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For article, "Judgment: Rules 54-63 ", see 23 Rocky Mt. L. Rev. 581 (1951). For article, "One Year Review of Cases on Contracts", see 33 Dicta 57 (1956). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For comment on Meier v. Schooley appearing below, see 34 Rocky Mt. L. Rev. 414 (1962). For comment, "Pre-Enforcement Judicial Review: CF & I Steel Corp. v. Colorado Air Pollution Control Commission", see 58 Den. L.J. 693 (1981). For article, "Declaratory Judgment Actions to Resolve Insurance Coverage Questions", see 18 Colo. Law. 2299 (1989). Annotator's note. Since this rule is similar to CSA, C. 93, §§ 78 to 92, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this rule. The declaratory judgment act is constitutional. San Luis Power & Water Co. v. Trujillo, 93 Colo. 385, 26 P.2d 537 (1933). The Colorado declaratory judgment act is incorporated in this rule. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956); State Bd. of Control for State Homes for Aged v. Hays, 149 Colo. 400, 369 P.2d 431 (1962). Review pursuant to this rule is appropriate where C.R.C.P. 106(a)(4) relief is unavailable because the challenged action is legislative or because review of the record is an insufficient remedy. Grant v. District Court, 635 P.2d 201 (Colo. 1981). Declaratory relief under this rule is an appropriate means of challenging administrative governmental actions that are not subject to review under C.R.C.P. 106(a)(4). Chellsen v. Pena, 857 P.2d 472 (Colo. App. 1992). Review pursuant to this rule is appropriate even in the context of a quasi-judicial proceeding where a declaratory judgment is requested and C.R.C.P. 106(a)(4) does not provide an adequate remedy. Constitutional questions and challenges to the overall validity of a statute or ordinance are more properly reviewed under this rule. Native Am. Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004). Review under this rule is not available where sufficient review has already been provided under C.R.C.P. 106(a)(4). Denver Ctr. for Performing Arts v. Briggs, 696 P.2d 299 (Colo. 1985); Carney v. Civil Serv. Comm'n, 30 P.3d 861 (Colo. App. 2001). Plaintiffs' claim for declaratory relief asserting that planning commission did not provide sufficient notice to them of a permit review meeting was properly dismissed under C.R.C.P. 106(b). Because C.R.C.P. 106(a)(4) is the exclusive remedy for reviewing quasi-judicial decisions, all claims that effectively seek such review (whether framed as claims under section (a)(4) of this rule or not) are subject to the 30-day deadline under C.R.C.P. 106(b). Thus, claims for declaratory relief under this rule that seek review of quasi-judicial decisions must be filed within 30 days. JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo. App. 2007). The granting of declaratory relief is a matter resting in the sound discretion of the trial court and is not precluded even when there is another adequate remedy. Troelstrup v. District Court, 712 P.2d 1010 (Colo. 1986). Ordinances legislative in nature are reviewable under this rule. Ordinances establishing general policies, such as a zoning ordinance, even though accompanied by procedures for notice and public hearing, are, when determining the proper procedure for review, legislative in nature and reviewable under this rule when the constitutional application of the ordinance is involved. Margolis v. District Court, 638 P.2d 297 (Colo. 1981). A zoning ordinance amendment is subject to review pursuant to this rule and is not reviewable pursuant to C.R.C.P. 106(a)(4) where it is an amendment of general application, may be enacted by initiative, and is subject to referendum. Russell v. City of Central, 892 P.2d 432 (Colo. App. 1995). Although a master plan is ordinarily not reviewable under this rule, the plan is reviewable when it is no longer advisory. Since the plan at issue was adopted as a zoning resolution by the board of county commissioners acting in a legislative capacity, it is no longer advisory. Condiotti v. Bd. of County Comm'rs, 983 P.2d 184 (Colo. App. 1999). It is permissible to join § 24-4-106 action and action under this rule for purposes of review. Utah Int'l, Inc. v. Bd. of Land Comm'rs, 41 Colo. App. 72, 579 P.2d 96 (1978). Action under rule attacking constitutionality of administrative regulation not barred as untimely. While agency rules and regulations are indeed reviewable under § 24-4-106(4), expiration of that section's filing period does not invariably bar as untimely an action under this rule attacking the constitutionality of an administrative regulation promulgated by § 24-4-103 rule-making. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981). Court lacks subject matter jurisdiction in action for declaratory judgment when plaintiff has not exhausted administrative remedies. Leete v. Bd. of Med. Exam'rs, 807 P.2d 1249 (Colo. App. 1991). Declaratory judgment is proper procedure for preenforcement challenge to regulation. Declaratory judgment is a proper procedure by which to make a preenforcement challenge to a regulation promulgated by a state agency. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199 Colo. 270, 610 P.2d 85 (1980). Action for declaratory judgment is appropriate method for challenging governmental action that is not quasi-judicial and therefore not subject to C.R.C.P. 106(a)(4) review. Russell v. City of Central, 892 P.2d 432 (Colo. App. 1995). The supreme court will not render an advisory opinion in declaratory judgment actions. Associated Master Barbers, Local 115 v. Journeyman Barbers, Local 205, 132 Colo. 52, 285 P.2d 599 (1955). There can be no coercive judgment in a proceeding under the declaratory judgment rule. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). Declaratory judgment is not the proper remedy to determine status of a person confined in the state penitentiary, the proper remedy being habeas corpus where if warranted a coercive order could be entered. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). Court may treat improper petition for a habeas corpus as a petition for declaratory relief to serve the interests of finality and judicial economy. Collins v. Gunter, 834 P.2d 1283 (Colo. 1992). The only new remedy afforded by the declaratory judgment law is to provide an adequate remedy in cases where no cause of action has arisen authorizing an executory judgment and where no relief is or could be claimed, and, while relief under this statute cannot be had where another established remedy is available, it is not intended to abolish the well-known causes of action, nor does it afford an additional remedy where an adequate one existed before, and it should not be resorted to where there is no necessity for a declaratory judgment. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). This act is not intended to repeal the statute prohibiting judges from giving legal advice nor to impose the duties of the profession upon the courts, nor to provide advance judgments as the basis of commercial enterprises, nor to settle mere academical questions. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). Where, under the pleadings in an action for a declaratory judgment, no question is presented which is properly cognizable under the uniform declaratory judgments act, the suit should be dismissed. Fairall v. Frisbee, 104 Colo. 553, 92 P.2d 748 (1939). In a declaratory judgment action in which the court rules against the position of the plaintiff, it should enter a declaratory judgment and not sustain a motion to dismiss. Karsh v. City & County of Denver, 176 Colo. 406, 490 P.2d 936 (1971). The uniform declaratory judgments act was never intended to be a substitute for, or a short cut to, proper pleading and specifically provides that all issues of fact shall be tried and determined as in other cases. Home Owners' Loan Corp. v. Meyer, 110 Colo. 501, 136 P.2d 282 (1943). Actions for declaratory judgment were not intended as a substitute for statutory procedure. Shotkin v. Perkins, 118 Colo. 584, 199 P.2d 295, cert. denied, 335 U.S. 888, 69 S. Ct. 230, 93 L. Ed. 426 (1948), reh'g denied, 335 U.S. 909, 69 S. Ct. 409, 93 L. Ed. 442, cert. denied, 338 U.S. 907, 70 S. Ct. 303, 94 L. Ed. 558 (1949), reh'g denied, 338 U.S. 952, 70 S. Ct. 479, 94 L. Ed. 588 (1950); Hays v. City & County of Denver, 127 Colo. 154, 254 P.2d 860 (1953). Termination of a dissolution proceeding as a result of the death of one of the parties did not render the controversy over the antenuptial agreement moot. Even though the death of one spouse mooted the dissolution proceeding, because the antenuptial agreement had a practical legal effect on an ongoing probate proceeding, the trial court was in error when it ruled the agreement invalid. Schwartz v. Schwartz, 183 P.3d 552 (Colo. 2008). Applied in State Bd. of Cosmetology v. District Court, 187 Colo. 175, 530 P.2d 1278 (1974); Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975); City of Arvada v. City & County of Denver, 36 Colo. App. 146, 539 P.2d 1294 (1975); City & County of Denver v. City of Arvada, 192 Colo. 88, 556 P.2d 76 (1976); Mohler v. Buena Vista Bank & Trust Co., 42 Colo. App. 4, 588 P.2d 894 (1978); Newton v. Nationwide Mut. Fire Ins. Co., 197 Colo. 462, 594 P.2d 1042 (1979); Hide-A-Way Massage Parlor, Inc. v. Bd. of County Comm'rs, 198 Colo. 175, 597 P.2d 564 (1979); Jeffrey v. Colo. State Dept. of Soc. Servs., 198 Colo. 265, 599 P.2d 874 (1979); Bd. of County Comm'rs v. Fifty-First Gen. Ass'y, 198 Colo. 302, 599 P.2d 887 (1979); DuHamel v. People ex rel. City of Arvada, 42 Colo. App. 491, 601 P.2d 639 (1979); Spiker v. City of Lakewood, 198 Colo. 528, 603 P.2d 130 (1979); CF & I Steel Corp. v. Colo. Air Pollution Control Comm'n, 44 Colo. App. 111, 606 P.2d 1306 (1978); Estate of Daigle, 634 P.2d 71 (Colo. 1981); Stone Envtl. Eng'r Servs., Inc. v. Colo. Dept. of Health, 631 P.2d 1185 (Colo. App. 1981); Empire Sav., Bldg. & Loan Ass'n v. Otero Sav. & Loan Ass'n, 640 P.2d 1151 (Colo. 1982); Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo. 1982); Citizens for Free Inter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982); Two G's, Inc. v. Kalbin, 666 P.2d 129 (Colo. 1983); DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983); Denver & R.G.W.R.R. v. City & County of Denver, 673 P.2d 354 (Colo. 1983); Martynes & Assocs. v. Devonshire Square Apts., 680 P.2d 246 (Colo. App. 1984); Lakewood Fire Protect. v. City of Lakewood, 710 P.2d 1124 (Colo. App. 1985). II. Power to Declare Rights; Force of Declaration. Since the adoption of the uniform declaratory judgments act, the supreme court is permitted to declare and adjudge rights and liabilities under a given state of facts irrespective of whether it directly supplies remedies to enforce them. Employers Mut. Ins. Co. v. Bd. of County Comm'rs, 102 Colo. 177, 78 P.2d 380 (1938). A declaratory judgment can only be taken to be a determination as to the rights of the parties before the court. Farmers Elevator Co. v. First Nat'l Bank, 176 Colo. 168, 489 P.2d 318 (1971). For a declaratory judgment to be binding, the necessary parties must be before the court. Beacom v. Bd. of County Comm'rs, 657 P.2d 440 (Colo. 1983). A declaratory judgment is conclusive as to questions raised by parties and passed upon by court. Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973); City & County of Denver v. Chuck Ruwart Chevrolet, Inc., 32 Colo. App. 191, 508 P.2d 789 (1973). The equitable jurisdiction of a court may be invoked to meet the ends of justice in order that a multiplicity of suits may be prevented. Hamilton v. City & County of Denver, 176 Colo. 6, 490 P.2d 1289 (1971). The plaintiff in requesting a declaratory judgment should not be required to risk violation of the statute in order to obtain a declaration of its validity. Colo. State Bd. of Optometric Exam'rs v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968). A case was clearly within the contemplation of this provision where certain beneficiaries of a life insurance policy brought an action against an insurance company to establish the applicability of a double indemnity clause to the death of the insured whose death was caused by an overdose of luminal: A contract was involved, persons were interested, and there was a controversy concerning the construction of the policy. Equitable Life Assur. Soc'y v. Hemenover, 100 Colo. 231, 67 P.2d 80 (1937). Trial court abused its discretion in dismissing due process claim based on ripeness where professors already worked under an employment contract, they entered into the contract in reliance on the terms stated in the contract, and they faced uncertainty as to the terms of the contract because it was later modified with the intent to apply it retroactively. Saxe v. Bd. of Trs. of Metro. State Coll., 179 P.3d 67 (Colo. App. 2007). III. Who May Obtain Declaration of Rights. The general assembly is without power to require courts to exercise nonjudicial functions; but it is not without the power to impose upon courts jurisdiction over certain enumerated actions seeking declaratory judgments on matters that lend themselves to and receive judicial determination in otherwise litigated cases, as it at once appears, such would not be nonjudicial in their nature. San Luis Power & Water Co. v. Trujillo, 93 Colo. 385, 26 P.2d 537 (1933). Declaratory judgment act neither expands nor contracts the jurisdiction of Colorado's courts. In creating a new remedy the general assembly did not by implication grant political subdivisions of the state the right to sue the state. Romer v. Fountain Sanitation Dist., 898 P.2d 37 (Colo. 1995). One whose rights are affected by statute may have its construction or validity determined by a declaratory judgment. Toncray v. Dolan, 197 Colo. 382, 593 P.2d 956 (1979). One whose rights are favorably affected by a statute is entitled to seek a judicial determination thereof so long as the court is provided with a properly adverse context. Silverstein v. Sisters of Charity, 38 Colo. App. 286, 559 P.2d 716 (1976). One whose rights or status may be affected by statute is entitled to have any question of construction determined provided that a substantial controversy between adverse parties of sufficient immediacy to warrant the issuance of a declaratory judgment exists. Silverstein v. Sisters of Charity, 38 Colo. App. 286, 559 P.2d 716 (1976). Proper forum for challenge to constitutionality of statute or ordinance under which an administrative agency acts is district court where declaratory judgment can be sought. Arapahoe Roofing & Sheet Metal v. Denver, 831 P.2d 451 (Colo. 1992). A liberal construction of the statute and the rule rejects the proposition that a person adversely affected by a statute and seeking relief from uncertainty and insecurity with respect to his rights by reason of a statute or a rule of a board or commission must take the risk of prosecutions, fines, imprisonment, loss of property, or loss of profession in order to secure adjudication of his rights. Colo. State Bd. of Optometric Exam'rs v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968). This rule establishes the procedural mechanism for implementation of the declaratory judgment act. Romer v. Fountain Sanitation Dist., 898 P.2d 37 (Colo. 1995). A proceeding for declaratory judgment must be based upon an actual controversy. Farmers Elevator Co. v. First Nat'l Bank, 176 Colo. 168, 489 P.2d 318 (1971); Beacom v. Bd. of County Comm'rs, 657 P.2d 440 (Colo. 1983). When the questions presented are not uncertain or hypothetical, and they are presented in an action seeking a declaratory judgment, they are no less justiciable than if presented by injunction or otherwise. San Luis Power & Water Co. v. Trujillo, 93 Colo. 385, 26 P.2d 537 (1933). Although a declaratory judgment action must be based on an actual controversy, a party need not violate the challenged statute or regulation in order to obtain a declaration of its invalidity. It is sufficient that a party will be adversely affected by the challenged regulation. Bowen/Edwards v. Bd. of County Comm'rs, 812 P.2d 656 (Colo. App. 1990), aff'd in part and rev'd in part on other grounds, 830 P.2d 1045 (Colo. 1992). The right to a declaratory judgment extends to a party who claims to be adversely affected by a regulation. Plaintiff contended that he was an interested party under a written agreement between the social security administration and the department of human services. Thus, even if the authorization signed by the plaintiff allowing the social security administration to send his federal benefits check directly to the department of human services itself were not deemed a contract, plaintiff stated a claim for declaratory relief and was entitled to have a determination on the merits rather than dismissal. Martinez v. Dept. of Human Servs., 97 P.3d 152 (Colo. App. 2003). A justiciable controversy existed, and so the dismissal of a declaratory judgment claim was an abuse of discretion, where a town's ordinance limited a developer's rights under an existing contract with the town, notwithstanding the fact that the developer had not applied for a permit from the town. Lot Thirty-Four Venture, L.L.C. v. Town of Telluride, 976 P.2d 303 (Colo. App. 1998), aff'd on other grounds, 3 P.3d 30 (Colo. 2000). Court is not required to reply to mere speculative inquiries. Gabriel v. Bd. of Regents, 83 Colo. 582, 267 P. 407 (1928). Specific threat of enforcement of a rent control statute created a sufficient actual controversy for purposes of this rule. Meyerstein v. City of Aspen, __ P.3d __ (Colo. App. 2011). A declaratory judgment may not issue under the provisions of section (b) of this rule on the validity of a city ordinance to create a storm sewer district, where the proposed ordinance is in contemplation only and has not been passed by the city council. City & County of Denver v. Denver Land Co., 85 Colo. 198, 274 P. 743 (1929). As desirable as it might be to have an announcement of the court upon a question, it would be improper for it to decide in the absence of the necessary parties. City & County of Denver v. Denver Land Co., 85 Colo. 198, 274 P. 743 (1929); Continental Mut. Ins. Co. v. Cochrane, 89 Colo. 462, 4 P.2d 308 (1931). No proceeding lies under our declaratory judgment act to obtain merely an advisory opinion. Farmers Elevator Co. v. First Nat'l Bank, 176 Colo. 168, 489 P.2d 318 (1971). The declaratory judgment leaves the parties to pursue the remedies which the law provides, after performing its office of declaring the existence of a certain liability. San Luis Power & Water Co. v. Trujillo, 93 Colo. 385, 26 P.2d 537 (1933). Preventative relief in some instances is just as properly a matter of judicial function as remedial relief and if given by a declaratory order in the construction of a statute, it is res judicata as to the questions of construction raised between the parties and passed upon. San Luis Power & Water Co. v. Trujillo, 93 Colo. 385, 26 P.2d 537 (1933). Plaintiff had standing to pursue declaratory judgment action where the complaint demonstrated that the regulations threatened to cause it injury by alleging it would be adversely affected by compliance with the regulations, that if it complied with the regulations, it would suffer economic injury because the Board's permit fees and bond requirements are greater than those of the state, and that if it proceeded with oil and gas development without a county permit it would be subject to criminal sanctions. Bowen/Edwards v. Bd. of County Comm'rs, 812 P.2d 656 (Colo. App. 1990), aff'd in part and rev'd in part on other grounds, 830 P.2d 1045 (Colo. 1992). The fact that a party confesses judgment in part or in whole does not automatically lead to a declaratory judgment as prayed for by the plaintiffs. Bennett v. City of Fort Collins, 190 Colo. 198, 544 P.2d 982 (1975). The declaratory judgment is applicable to a dispute over the right to the use of spring waters not tributary to any natural stream. Colo. & Utah Coal Co. v. Walter, 75 Colo. 489, 226 P. 864 (1924). For determination of rights under the teachers' salary law, see Washington County High Sch. Dist. v. Bd. of Comm'rs, 85 Colo. 72, 273 P. 879 (1928). In an action under the declaratory judgments act to determine whether or not a municipality has the power to issue bonds and levy taxes for the payment thereof, the city auditor, being a person whose legal relations are affected by the proposal, is the proper person to initiate the proceedings. McNichols v. City & County of Denver, 101 Colo. 316, 74 P.2d 99 (1937). Where results to occur from the enforcement of a statutory provision can be predicted with certainty or where the basic right of the state to enter legislative fields said to be the domain of the federal government is questioned, a court properly may declare with respect to the validity of a statute. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145 (1944). A court should not enter into a speculative inquiry for the purpose of upholding or condemning statutory provisions, the effect of which, in concrete situations not yet developed, could not be definitely perceived. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145 (1944). The validity of zoning ordinances has been challenged by certiorari review under C.R.C.P. 106(a)(4) and declaratory relief under this rule, and on occasion, these forms of relief have been pursued simultaneously. Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975). Judicial review remedy for rezoning challenge. As a general rule, judicial review by way of C.R.C.P. 106(a)(4) is the exclusive remedy for one challenging a rezoning determination on a parcel of property. However, where persons have not had prior notice of a rezoning hearing and have not participated in it, certiorari review is not always an effective remedy, and a hearing de novo under a declaratory judgment is a proper and effective remedy. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). Income tax statute and regulations may be determined by declaratory judgment. Where a taxpayer's liability for income taxes turns on the construction of a statute and the validity, or invalidity, of regulations purporting to interpret that statute, the case is well within the purpose of a declaratory judgment. Toncray v. Dolan, 197 Colo. 382, 593 P.2d 956 (1979). Relief may be afforded to persons uncertain about rights under penal statute. Relief in the nature of a declaratory judgment will be afforded in appropriate circumstances to those persons who claim uncertainty and insecurity with respect to their rights under a penal statute or law. Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982). An action for declaratory judgment may be properly maintained by an insurance company to determine if it will be liable to its insured for a defense and for payment of a possible judgment arising from a specified occurrence. Beeson v. State Auto. & Cas. Underwriters, 32 Colo. App. 62, 508 P.2d 402, aff'd, 183 Colo. 284, 516 P.2d 623 (1973). Insurance coverage may be declared. When a reasonable likelihood is established that alleged tortious conduct of an insured is excluded from coverage under his homeowner's policy, a trial judge may appropriately exercise discretion in affording insurer opportunity to obtain declaration of its obligations under the policy prior to the personal injury trial. Troelstrup v. District Court, 712 P.2d 1010 (Colo. 1986). Physicians who were denied staff privileges at private hospital were not entitled to relief in form of declaratory judgment that hospital's board violated state law by not following hospital's bylaws. Green v. Lutheran Med. Ctr. Bd. of Dirs., 739 P.2d 872 (Colo. App. 1987). Declaratory judgment actions may be filed to determine the existence of, or rights under, an oral contract. Berenergy Corp. v. Zab, Inc., 94 P.3d 1232 (Colo. App. 2004), aff'd, 136 P.3d 252 (Colo. 2006). A licensee of the owner of real estate is entitled to declaratory judgment regarding a proposed modification to an easement on the owner's property, particularly where both the owner and its licensee are parties to the proceeding. City of Boulder v. Farmer's Reservoir & Irrig. Co., 214 P.3d 563 (Colo. App. 2009). Although section (b) of this rule details situations in which declaratory judgment actions may be brought, it does not restrict the court's ability to grant declaratory relief in other situations when appropriate. Berenergy Corp. v. Zab, Inc., 94 P.3d 1232 (Colo. App. 2004), aff'd, 136 P.3d 252 (Colo. 2006). IV. Contract Construed Before Breach. The purpose of this rule is for a judicial declaration of rights under a contract. Associated Master Barbers, Local 115 v. Journeyman Barbers, Local 205, 132 Colo. 52, 285 P.2d 599 (1955). A proposed contract affords plaintiff no right to have it construed. Associated Master Barbers, Local 115 v. Journeyman Barbers, Local 205, 132 Colo. 52, 285 P.2d 599 (1955). One who is not a party to a contract is without standing to obtain a declaratory judgment determining the validity of such contract. Associated Master Barbers, Local 115 v. Journeyman Barbers, Local 205, 132 Colo. 52, 285 P.2d 599 (1955). In an action under the declaratory judgments act to determine the validity of a contract, the complaint failing to allege that the validity of the contract had been questioned, or that a question had arisen under it, no cause of action was stated. Gabriel v. Bd. of Regents, 83 Colo. 582, 267 P. 407 (1928). Section (c) inapplicable where undetermined, extrinsic facts. Although § 13-51-107 and section (c) of this rule provide that a contract may be interpreted prior to breach, these provisions are inapplicable where the dispute requires an interpretation in light of extrinsic facts which are not yet determinable. McDonald's Corp. v. Rocky Mt. McDonald's, Inc., 42 Colo. App. 143, 590 P.2d 519 (1979). V. For What Purposes Interested Persons May Have Rights Declared. Section (d) of this rule confers no new authority concerning wills and trusts, because district courts had full and complete jurisdiction before the passage of the declaratory judgments act to construe wills and trusts and to control executors and trustees in the administration of estates. Mulcahy v. Johnson, 80 Colo. 499, 252 P. 816 (1927). A declaratory judgment is a proper proceeding when the amounts involved are substantial and there is a threat of multiplicity of suits, particularly when the plaintiffs are public employees. Hamilton v. City & County of Denver, 176 Colo. 6, 490 P.2d 1289 (1971). VI. When Court May Refuse to Declare Right. Declaratory judgment actions should be considered only in cases where "the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding, and it follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed". People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956). A declaratory judgment is appropriate when it will terminate a controversy. Heron v. City & County of Denver, 159 Colo. 314, 411 P.2d 314 (1966). The district court properly dismissed a declaratory judgment complaint for lack of a justiciable controversy concerning the plaintiff's alleged right to select the location of the defendant's proposed oil and gas wells where the defendant had not yet submitted an application for a permit to drill wells at specific locations. Burkett v. Amoco Prod. Co., 85 P.3d 576 (Colo. App. 2003). Where parties whose interests would be affected by the action were not made parties thereto, and declaratory judgment would not terminate litigation, a holding that necessary and indispensable parties were not before the trial court was not error. Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961). It is not the function of the courts, even by way of declaration, to adjudicate with respect to administrative orders in the absence of a showing that a judgment, if entered, would afford a plaintiff present relief. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). A judicial tribunal is not required to render a judicial opinion on a matter which has become moot. Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968). A case is moot when a judgment, if rendered, will have no practical legal effect upon an existing controversy. Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968). An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead, and in a declaratory judgment action there is a tendency to construe the mootness doctrine more narrowly. Sigma Chi Fraternity v. Regents of Univ. of Colo., 258 F. Supp. 515 (D. Colo. 1966). Declaratory judgment proceedings may not be invoked to resolve a question which is nonexistent, even though it can be assumed that at some future time such question may arise. Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958); Heron v. City & County of Denver, 159 Colo. 314, 411 P.2d 314 (1966). The jurisdiction of the court to enter declaratory judgments does not properly extend to entering advisory judgments as to hypothetical issues which may never arise. Heron v. City & County of Denver, 159 Colo. 314, 411 P.2d 314 (1966). In action for declaratory judgment under this rule, the complaint must state a question which is existent and not one which is academic or nonexistent; there must be a justiciable issue or legal controversy extant, and not a mere possibility that at some future time such question may arise. Heron v. City & County of Denver, 159 Colo. 314, 411 P.2d 314 (1966). In a suit to procure a declaratory judgment fixing the applicability of the sales tax to certain merchandising transactions, where it appears from the record that matters other than those shown by the pleadings must be presented to disclose the real controversy, the actual dispute can only be resolved by a consideration of proven or stipulated facts, and in such a situation the trial court, although properly holding that a demurrer to the complaint should have been overruled, should have, notwithstanding defendant elected to stand upon his demurrer, refused to render judgment granting the relief asked until evidence was produced affording a basis for conclusions with respect to proper declarations to be made and the relief to be granted. Armstrong v. Carman Distrib. Co., 108 Colo. 223, 115 P.2d 386 (1941). Applied in City & County of Denver v. Denver Land Co., 85 Colo. 198, 274 P. 743 (1929). VII. Review. When an administrative remedy has not been sought in a timely manner, this rule does not provide jurisdiction for judicial review. Jefferson Sch. D. R-1 v. Div. of Labor, 791 P.2d 1217 (Colo. App. 1990). Since judicial review would not be significantly aided by an additional administrative decision, petitioner's failure to appeal should not bar his only defense to a criminal prosecution. Hamilton v. City & County of Denver, 176 Colo. 6, 490 P.2d 1289 (1971). Applied in McNichols v. City & County of Denver, 101 Colo. 316, 74 P.2d 99 (1937); Young v. Bd. of County Comm'rs, 102 Colo. 342, 79 P.2d 654 (1938). VIII. Further Relief. This rule provides for further relief based on a declaratory judgment, but unless such relief is asked in the same action wherein the declaratory judgment is sought, and in connection therewith, it can be obtained only as to damages accruing subsequent to the date of the declaratory judgment. Lane v. Page, 126 Colo. 560, 251 P.2d 1078 (1952). Because a declaratory judgment should not be sought in order to try a controversy by piecemeal, or to try particular issues without settling the entire controversy, where the damages were antecedent and might with propriety have been determined in the same proceeding in which declaratory judgment alone was sought, such judgment should operate as a bar to any subsequent claim therefor. This is in accord with the general rule. Lane v. Page, 126 Colo. 560, 251 P.2d 1078 (1952). A declaratory judgment does not constitute absolute bar to subsequent proceedings where parties are seeking other remedies, even though based upon claims which could have been asserted in original action. Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973); City & County of Denver v. Chuck Ruwart Chevrolet, Inc., 32 Colo. App. 191, 508 P.2d 789 (1973); Eason v. Bd. of County Comm'rs of County of Boulder, 961 P.2d 537 (Colo. App. 1997). Subsequent relief sought by party to prior declaratory judgment action need not be sought by amendment of complaint in original action, but may be sought by separate action. Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973). Relief is not limited by language of statute or rule to prevailing party in declaratory judgment action. Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973). Reversal of an underlying declaratory judgment is not the "further relief" contemplated by § 13-51-112 and section (h) of this rule but is, instead, ordinary postjudgment relief. While "further relief" is not limited to the original prevailing party, nevertheless, such relief must seek remedies different from those granted in the declaratory judgment. Spencer v. Bd. of County Comm'rs, 39 P.3d 1272 (Colo. App. 2001). Where plaintiff received no personal direct benefit from prosecuting declaratory judgment action, but the subject matter of the judgment was enhanced or preserved by the litigation, plaintiff's attorney is permitted a reasonable fee which should be awarded by the trial court. Agee v. Trustees of Pension Bd., 33 Colo. App. 268, 518 P.2d 301 (1974). IX. Issues of Fact. The majority rule is that whether a party is entitled to have disputed issues of fact decided by a jury is not determined by the fact that a declaratory judgment is sought, but whether the right to a jury trial existed prior to the passage of the declaratory judgment act in the type of action involved, if so, there is a right to trial by jury in such action. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). The right to jury trial must be determined by the real, meritorious controversy between parties, as shown by the whole case, and in determining the essential character of a suit or remedy within this rule, the entire pleadings and all issues raised are to be examined and not merely the plaintiff's declaration, complaint, petition, or evidence, but a plaintiff may not defeat a defendant's right to a jury trial by framing his complaint so that his action would be cognizable only in equity under the old procedure, by the blending of a claim cognizable at law with a demand for equitable relief, by an allegation of an equitable cause of action which does not exist, or by joining a legal with an equitable cause of action; and at least, a joinder of legal and equitable causes of actions in a complaint does not deprive the defendant of a right to trial by jury of the purely legal issues. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). If the action in which declaratory relief is sought would have been an action at law had it been permitted to mature without intervention of declaratory procedure, the right to trial by jury of disputed questions of fact is not affected. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). That pleadings, depositions, admissions or affidavits contain undisputed matter and can be taken as true is not decisive of the question of whether there is a genuine issue of any material fact, because an issue of fact may arise from countervailing inferences which are permissible from evidence accepted as true. O'Herron v. State Farm Mut. Auto. Ins. Co., 156 Colo. 164, 397 P.2d 227 (1964). In an action for declaratory judgment, where the evidence was in conflict as to whether a tenant was entitled to remain in possession under the farm lease for the succeeding crop year, and trial to a jury resulted in a verdict favorable to the tenant, it was error to set the verdict aside and give judgment for plaintiff, defendant being entitled to a jury trial. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). Factual determinations may be necessary in order to declare rights, status, or legal relations, and an action for declaratory judgment may be properly maintained by an insurance company to fix liability vel non, notwithstanding that factual determinations are necessary to make a declaration on the controlling issue. O'Herron v. State Farm Mut. Auto. Ins. Co., 156 Colo. 164, 397 P.2d 227 (1964); Am. Family Mut. Ins. Co. v. Bowser, 779 P.2d 1376 (Colo. App. 1989). X. Parties - Municipal Ordinances. A case for a declaratory judgment, under a statute providing for declaratory judgments in cases of actual controversies only, which shall have the effect of final judgments, must be formally presented with proper parties. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956). A plaintiff, seeking a determination of any cause by means of a judgment declaring rights, liabilities, and jural relations, must comply with the provisions of the declaratory judgment statute by naming all of the persons as parties who have a right to defend the action, or who are interested therein, or who will be affected by the making of a declaration of rights. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956). The indispensable and necessary parties in any declaratory judgment action are those who have conflicting legal interests in the controversy to be adjudicated and whose rights will be affected thereby, and the trial court should insist that jurisdiction be obtained of all such parties either personally or in an appropriate class action under the provisions of C.R.C.P. 23; otherwise the court should dismiss the action, for a declaratory judgment action is intended to completely terminate the controversy, and if the court does not have jurisdiction of such interested parties, its judgment would not settle the questions presented and thus lead to multifarious litigation. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956). All "parties who have or claim any interest which would be affected by the declaration" must be made parties to the proceeding, for neither in the declaratory judgment action nor in any other judicial proceeding may the rights of persons not parties to a judicial proceeding be bound by the action of a court in that proceeding. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956). Only persons who have a legally cognizable interest must be made parties to an action, and no real controversy is presented until a judgment is entered. Connecticut Gen. Life Ins. Co. v. A.A.A. Waterproofing, Inc., 911 P.2d 684 (Colo. App. 1995), aff'd on other grounds sub nom. Constitution Assoc. v. N.H. Ins. Co., 930 P.2d 556 (Colo. 1996). The interest which a party must have in the subject matter in order to make him a necessary party defendant must be a present substantial interest, as distinguished from a mere expectancy or future contingent interest. Game & Fish Comm'n v. Feast, 157 Colo. 303, 402 P.2d 169 (1965). It is not necessary to make the state of Colorado a party defendant when two agencies of the state government are parties defendant and are represented by the state attorney general, because when suit is brought against an agency or department of the state government, it is in effect against the state itself. Game & Fish Comm'n v. Feast, 157 Colo. 303, 402 P.2d 169 (1965). Attorney general must be served with a copy of the declaratory judgment proceeding and afforded the opportunity to be heard, but it is within his discretion whether he elects to be heard. Lakewood Pawnbrokers, Inc. v. City of Lakewood, 182 Colo. 315, 512 P.2d 1241 (1973). Notice to attorney general not necessary where constitutional question arises during trial. Section 13-51-115 and this rule, mandating notice to the attorney general when allegations of unconstitutionality are made, do not address the situation where the question of constitutionality arises for the first time during the course of trial. Howell v. Woodlin Sch. Dist. R-104, 198 Colo. 40, 596 P.2d 56 (1979). It is error to deny petitions of intervention of junior colleges whose rights would be directly affected by a declaration of unconstitutionality depriving them of funds. Mesa County Junior College Dist. v. Donner, 150 Colo. 156, 371 P.2d 442 (1962). Where by stipulation all persons having any interest regarding the interpretation of liability insurance policies place themselves before the court, all the possible tort-feasors, in essence, challenge the respective insurance companies to defend the various named insureds pursuant to the terms of their contracts, and the insurance companies deny any liability, a controversy of sufficient immediacy and reality to warrant the issue of a declaratory judgment is raised. Beeson v. State Auto. & Cas. Underwriters, 32 Colo. App. 62, 508 P.2d 402, aff'd, 183 Colo. 284, 516 P.2d 623 (1973). Where the city was not made a party, and the attorney general of the state of Colorado has not been served with a copy of the proceeding and has had no opportunity to be heard, the essential conditions required by the rule are not present, and under such circumstances a determination of the questions argued by counsel cannot be had in this proceeding. Meier v. Schooley, 147 Colo. 244, 363 P.2d 653 (1961). For discussion of member municipalities in sewage disposal district being found to be indispensable parties, see Bancroft-Clover Water & San. Dist. v. Metro. Denver Sewage Disposal Dist. No. 1, 670 P.2d 428 (Colo. App. 1983). Membership policyholders of a mutual insurance company had a substantial interest in the declaratory judgment sought by the company and should have been made parties thereto, because in their absence the declaratory judgment would not have terminated the uncertainty or controversy. Continental Mut. Ins. Co. v. Cochrane, 89 Colo. 462, 4 P.2d 308 (1931). Where plaintiffs seek a judicial declaration not as to their own rights and status but attempt to have others not named or served declared to be in some "unlawful" status, no error was committed by the trial court in holding that declaratory judgment was not a proper remedy. Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961). XI. Rule is Remedial - Purpose. The general or primary purpose of a declaratory judgments statute and rule is to provide a ready and speedy remedy, in cases of actual controversy, for determining issues and adjudicating the legal rights, duties, or status of the respective parties, before controversies with regard thereto lead to the repudiation of obligations, the invasion of rights, and the commission of wrongs. People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956); Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961). Primary purpose of declaratory judgment procedure is to provide a speedy, inexpensive, and readily accessible means of determining actual controversies which depend on the validity or interpretation of some written instrument of law. Toncray v. Dolan, 197 Colo. 382, 593 P.2d 956 (1979). The purpose of the statute and the rule is to be remedial and to afford relief from uncertainty and insecurity, and the statute and rule expressly provide that they be liberally construed and administered. Colo. State Bd. of Optometric Exam'rs v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968). A liberal construction of the statute and the rule rejects the proposition that a person adversely affected by a statute and seeking relief from uncertainty and insecurity with respect to his rights by reason of a statute or a rule of a board or commission must take the risk of prosecutions, fines, imprisonment, loss of property, or loss of profession in order to secure adjudication of his rights. Colo. State Bd. of Optometric Exam'rs v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968). XII. Trial by Jury. It is clear that in a proper case a jury trial may be had in an action brought under a declaratory judgments rule. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). The fact that an action is for a declaratory judgment is not, in and of itself, determinative of the type of action brought for purposes of determining whether there is a right to trial by jury. Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993). The historical test to be applied to determine whether a right to a jury trial exists in a declaratory judgments action is that if any of the parties would have a constitutional right to a jury trial on any issue involved prior to the adoption of the declaratory judgments rule, such right remains. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960). If the action in which declaratory relief is sought would have been an action at law had it been permitted to mature without the intervention of declaratory procedure, the right to trial by jury of disputed questions of fact is not affected, and this has the salutary effect of permitting the defendant a trial by jury whether the action is brought under the common law or under the declaratory judgments rule. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375 (1960).
For declaratory judgments, see article 51 of title 13, C.R.S.; for jury trials of right, see C.R.C.P. 38; for trial by jury or by the court, see C.R.C.P. 39.