Colorado § 13-51-106 - Who may obtain declaration.

§ 13-51-106. Who may obtain declaration.

Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Source: L. 23: p. 268, § 2. CSA: C. 93, § 79. CRS 53: § 77-11-2. C.R.S. 1963: § 77-11-2.

ANNOTATION

I. General Consideration.

II. Actions Subject to Declaratory Judgment.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Twenty-six Years Under the Colorado Declaratory Judgments Act", see 27 Dicta 177 (1950). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For comment, "Pre-Enforcement Judicial Review: CF&I Steel Corp. v. Colo. Air Pollution Control Commission", see 58 Den. L.J. 693 (1981).

This act was 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. Gabriel v. Bd. of Regents of Univ. of Colo., 83 Colo. 582, 267 P. 407 (1928); City & County of Denver v. Lynch, 92 Colo. 102, 18 P.2d 907 (1932).

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 this statute is to afford relief from the uncertainty surrounding legal rights and legal relations. It is remedial in nature and should be liberally construed and administered. Cmty. Tele-Communications v. Heather Corp., 677 P.2d 330 (Colo. 1984).

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).

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); Cmty. Tele-Communications v. Heather Corp., 677 P.2d 330 (Colo. 1984).

A controversy exists where an insured has submitted a claim and the insurer determined that it did not intend unilaterally to admit liability, even though the insurer had not in fact denied such claim. Am. Family Mut. Ins. Co. v. Bowser, 779 P.2d 1376 (Colo. App. 1989).

Plaintiff must demonstrate that there is an existing legal controversy that can be effectively resolved by a declaratory judgment, and not a mere possibility of a future legal dispute. Bd. of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992).

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).

Injury in fact and interest legally protected by law give rise to standing. Cable television company was injured in fact by city ordinance granting unlawful permit to competitor without holding franchise election, and cable television company had a legally protected interest in conducting its business in a lawful manner satisfying requirements for standing under this act. Cmty. Tele-Communications v. Heather Corp., 677 P.2d 330 (Colo. 1984).

Judgment creditor of insured has standing to defend against claim for reformation of insurance policy. Cont'l Western v. Jim's Hardwood Fl., 12 P.3d 824 (Colo. App. 2000).

As does another insurer of judgment debtor. Cont'l Western v. Jim's Hardwood Fl., 12 P.3d 824 (Colo. App. 2000).

The questions presented must not be uncertain or hypothetical. The questions presented here are not uncertain or hypothetical, and because they are presented in an action seeking a declaratory judgment 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).

Courts need not reply to mere "speculative inquiries". The court cannot decide any other of the various questions raised, however desirable it might be to have them settled, unless it is now willing to answer questions "which have not yet arisen and which may never arise" and reply to mere "speculative inquiries". It cannot thus permit the courts to be converted into legal aid bureaus. Gabriel v. Bd. of Regents of Univ. of Colo., 83 Colo. 582, 267 P. 407 (1928).

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).

Or determine validity of a proposed city ordinance. A declaratory judgment may not issue under the provisions of this article 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).

Especially in the absence of the necessary parties. Desirable as it might be to have an announcement of the court upon a question, it would be improper to decide the question in the absence of the necessary parties. City & County of Denver v. Denver Land Co., 85 Colo. 198, 274 P. 743 (1929); Cont'l Mut. Ins. Co. v. Cochrane, 89 Colo. 462, 4 P.2d 308 (1931).

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 judicial tribunal is not required to render a judicial opinion on a matter which has become moot. A judicial opinion would not serve to terminate any controversy or put to an end any uncertainty, which in this complaint and petition evaporated when the election was concluded. Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968).

Possible financial loss makes one an interested party. Junior college districts, which would suffer loss of funds if an act were declared unconstitutional, have the right to intervene in a declaratory judgment suit. Mesa County Junior Coll. Dist. v. Donner, 150 Colo. 156, 371 P.2d 442 (1962).

This statute 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).

An anticipatory declaratory judgment action must be independent of and separable from the underlying action. This determination constitutes the third standard that a trial court must consider in determining whether an anticipatory declaratory judgment action is appropriate. Constitution Assoc. v. N.H. Ins. Co., 930 P.2d 556 (Colo. 1996).

An anticipatory declaratory judgment action is more likely to be independent of and separable from the underlying action if no duty to defend in the underlying action has arisen. However, even if the duty has arisen, a party may bring the action if the party can demonstrate that a justiciable controversy exists, the judgment will finally resolve the controversy as to all parties, and independence and separability from the underlying action exists. Constitution Assoc. v. N.H. Ins. Co., 930 P.2d 556 (Colo. 1996).

To have standing, a party seeking declaratory relief must demonstrate that the challenged statute or regulation will likely cause tangible detriment to conduct or activities that are presently occurring or are likely to occur in the near future. Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo. 1984); Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App. 2004).

Since the southwestern water conservation district's rights were affected by a request made pursuant to the Colorado Open Records Act (CORA), and the district had a legitimate basis for believing that it could not respond to the request within the CORA time limits because of the breadth of and lack of specificity in the request, the district was entitled to have the court determine whether, under CORA, it was required to respond to the request within the statutory time limits. Such a declaration is the type of relief expressly contemplated under the declaratory judgments law. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App. 2004).

To have standing a plaintiff seeking a declaratory judgment on the validity of a regulatory scheme need not violate the regulation and thus become subject to punishment in order to secure the adjudication of uncertain legal rights. Bd. of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992).

Injury-in-fact element of standing satisfied when allegations of complaint, along with other evidence on issue of standing, establish that regulatory scheme threatens to cause injury to a legally protected interest of the plaintiff. Bd. of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992).

Plaintiff has no standing to bring a declaratory judgment action against defendant's insurance company before obtaining a judgment against the defendant. Farmers Ins. Exch. v. District Court for the Fourth Judicial Dist., 862 P.2d 944 (Colo. 1993).

An injured party in the underlying action cannot initiate an anticipatory declaratory judgment action against the other party's insurance company because the injured party does not have an enforceable judgment against nor a contractual relationship with either the other party or the other party's insurer. Constitution Assoc. v. N.H. Ins. Co., 930 P.2d 556 (Colo. 1996).

Applied in In re Estate of Daigle, 634 P.2d 71 (Colo. 1981); Dolores Huerta Prep. High v. Colo. State Bd. of Educ., 215 P.3d 1229 (Colo. App. 2009).

II. ACTIONS SUBJECT TO DECLARATORY JUDGMENT.

The courts have jurisdiction over certain enumerated actions seeking declaratory judgments. 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).

Section may be employed by an insurance company to determine its liability. 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 (1973).

An insurer may seek a declaration of its contractual responsibilities of defense and indemnification in connection with a claim filed against a person who arguably qualified as an "insured" under the insurance contract. Hartford Ins. Group v. District Court, 625 P.2d 1013 (Colo. 1981).

The factual nature of the inquiry surrounding an action for declaratory judgment brought by an insurance company to determine its liability under a policy does not bar action. Am. Family Mut. Ins. Co. v. Bowser, 779 P.2d 1376 (Colo. App. 1989).

The section 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); Stratton v. Beaver Farmers' Canal & Ditch Co., 82 Colo. 118, 257 P. 1077 (1927).

Proposed game procedures, rules, and materials that were not the subject of seizure by the department of revenue do not constitute a present controversy. Sniezek v. Dept. of Rev., 113 P.3d 1280 (Colo. App. 2005).

Validity of statute may be tested. 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).

One whose rights are affected by a statute may have its construction or validity determined by declaratory judgment. Toncray v. Dolan, 197 Colo. 382, 593 P.2d 956 (1979).

Where the taxpayers' 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 declaratory judgment. Toncray v. Dolan, 197 Colo. 382, 593 P.2d 956 (1979).

Where all administrative remedies within a labor organization have been exhausted and union officials are charged with fraud, trial court may properly assume jurisdiction of action by railroad company for declaratory judgment to determine rights under proposed contract. Wooldrige v. Denver & R. G. R. R., 118 Colo. 25, 191 P.2d 882 (1948).

Declaratory judgment is not proper procedure by which to make preenforcement challenge to 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).

For declaring a note or chattel mortgage void for usury, see Rice v. Franklin Loan & Fin. Co., 82 Colo. 163, 258 P. 223 (1927).

For applicability to determination of rights under teachers' salary law, see Washington County High Sch. Dist. v. Bd. of Comm'rs, 85 Colo. 72, 273 P. 879 (1928).

For determination of certain levies, see Denver Land Co. v. Moffat Tunnel Imp. Dist., 87 Colo. 1, 284 P. 339 (1930).

A lawsuit seeking a declaratory judgment may not be instituted if it impermissibly seeks to chill or freeze the defendant's protected political speech. Bd. of County Comm'rs v. Shroyer, 662 F. Supp. 1542 (D. Colo. 1987).

A cognizable claim is stated under this section and rule 57 of the Colorado Rules of Civil Procedure where towing carriers claimed that a Colorado state patrol policy invalidly abrogates a claimed legal right of such carriers to impose a lien on personal property obtained through rendition of towing services. Jam Action, Inc. v. Colo. State Patrol, 890 P.2d 210 (Colo. App. 1994).

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 trial court may grant declaratory relief in oral contract disputes where relief would terminate the controversy or remove an uncertainty. Zab, Inc. v. Berenergy Corp., 136 P.3d 252 (Colo. 2006).

Claim seeking a declaration that, as a matter of law, the word "firearm" in § 30-15-301 includes bows and arrows does not present a nonjusticiable political question. District court erred, therefore, in dismissing plaintiff's declaratory judgment claim based on the political question doctrine. Moss v. Bd. of County Comm'rs for Boulder County, 2015 COA 35, 411 P.3d 918.

This case is a classic case appropriate for resolution by entry of a declaratory judgment. A declaratory judgment would resolve the controversy between the parties regarding whether bow-and-arrow discharges are prohibited under the existing county resolution in the area where plaintiffs reside. At a minimum, there is controversy about whether bow-and-arrow discharges are prohibited under the applicable county resolution. A declaratory judgment would resolve the dispute about what conduct is prohibited under the current legal framework. Thus, a declaratory judgment will terminate the controversy or uncertainty regarding the scope of the resolution. As such, plaintiffs' claim is appropriate for resolution by entry of a declaratory judgment. Moss v. Bd. of County Comm'rs for Boulder County, 2015 COA 35, 411 P.3d 918.