13-16-104. When plaintiff recovers costs.

Statute text

If any person sues in any court of this state in any action, real, personal, or mixed, or upon any statute for any offense or wrong immediately personal to the plaintiff and recovers any debt or damages in such action, then the plaintiff or demandant shall have judgment to recover against the defendant his costs to be taxed; and the same shall be recovered, together with the debt or damages, by execution, except in the cases mentioned in this article.

History

Source: R.S. p. 154, 4. G.L. 326. G.S. 400. R.S. 08: 1055. C.L. 6571. CSA: C. 43, 1. CRS 53: 33-1-4. C.R.S. 1963: 33-1-4.

Annotations

 

ANNOTATION

Annotations

The successful plaintiff is entitled to recover all costs. Wallace Plumbing Co. v. Dillon, 73 Colo. 10, 213 P. 130 (1922).

The party to be taxed must be interested in suit and before court. This section does not authorize the court to render judgment against one not interested in the litigation or the subject matter thereof, not a party to the suit and not before the court. Downs v. Reno, 53 Colo. 217, 124 P. 582 (1912).

A party who challenges the necessity and reasonableness of expert witness fees and expenses is entitled to an evidentiary hearing. Fed. Ins. Co. v. Ferrellgas, Inc., 961 P.2d 511 (Colo. App. 1997).

A party is entitled to have the trial court make findings sufficient to disclose the basis for its decision to award costs and to support the amount awarded. Fed. Ins. Co. v. Ferrellgas, Inc., 961 P.2d 511 (Colo. App. 1997).

Where there is more than one trial, he is entitled to recover costs for all the trials. Wallace Plumbing Co. v. Dillon, 73 Colo. 10, 213 P. 130 (1922).

Costs of a prior mistrial. The provisions of this section, that the prevailing party shall recover his costs to be taxed, authorize him to recover all his costs in the action, including those of a prior mistrial, as well as those of the last trial; and a defeated party who would obtain a new trial must first pay the costs of the prevailing party at a mistrial, as well as all other necessary costs he has incurred in the action. Shreve v. Cheesman, 69 F. 785 (8th Cir. 1895).

If the defendant prevails, costs in one court may be set off against those in the other. Where a judgment is reversed on review and the cause remanded for a new trial, the plaintiff in error is entitled to costs in the appellate court; and where the defendant in error thereafter prevails in the trial court, the costs in one court may be set off against those in the other. Wallace Plumbing Co. v. Dillon, 73 Colo. 10, 213 P. 130 (1922).

Plaintiff properly charged with costs where cross-complainant recovers judgment. Where a complaint was dismissed and the plaintiff objected to the dismissal of the case, but insisted on a trial on the defendant's cross-complaint and the replication, and the cross-complainant recovered judgment, the plaintiff was properly charged with the costs. Cone v. Montgomery, 25 Colo. 277, 53 P. 1052 (1898).

Successful plaintiff in error may recover cost of transcript of record. The long practice of the supreme court should not lightly be changed, and amounts to a construction of the statutes, and that thereunder the successful plaintiff in error may recover any costs properly taxable. It is claimed that the transcript of record is not a proper matter to be taxed, but what has been said above shows that we must regard it as proper. It has always been customary to tax it. Antero & Lost Park Reservoir Co. v. Lowe, 70 Colo. 467, 203 P. 265 (1921).

The bill of exceptions. For some years the bill of exceptions was not separately taxed but was included with the transcript of record, and in Phillips v. Corbin (25 Colo. 567, 56 P. 180 (1898)) a bill of costs including the costs for the transcript of the bill of exceptions, the original of which bill and not a transcript was sent to this court, was expressly approved. We cannot sustain this practice, since it is supported by no statute or rule and cannot, therefore, allow the costs of the bill of exceptions. Antero & Lost Park Reservoir Co. v. Lowe, 70 Colo. 467, 203 P. 265 (1921).

Costs in annexation proceedings in the lower court are not allowed under this section. Phillips v. Corbin, 25 Colo. 567, 56 P. 180 (1898).

This section is expressly limited to costs arising out of court actions, and it has no application to special proceedings before any boards, bureaus, or commissions unless expressly authorized by the creative act. Md. Cas. Co. v. Indus. Comm'n, 116 Colo. 58, 178 P.2d 426 (1947).

Costs rarely taxed against a public officer. In the discharge of a duty imposed upon him by law, costs are rarely, if ever, taxed against a public officer. Witter v. Whipple, 26 Colo. 1, 55 P. 1081 (1899).

No costs can be taxed in the lower court against the secretary of state in a proceeding to require him to publish a list of nominees on the official ballot, and the same applies to the cost of proceeding in the supreme court where the secretary of state acted in good faith. Witter v. Whipple, 26 Colo. 1, 55 P. 1081 (1899).

An award of costs is proper against a municipal corporation. Kussman v. City & County of Denver, 671 P.2d 1000 (Colo. App. 1983).

Right of a plaintiff to select the forum for a claim less than $5,000 is not conditioned by constitution or by statute; rather, the general assembly has seen fit to permit a claimant to file such actions in district court unconstrained by considerations of whether the county court is an adequate forum for just resolution of the complaint and of any increased costs to the public incident to the district court adjudicative process. Cook v. District Court ex rel. County of Weld, 670 P.2d 758 (Colo. 1983).

Expert witness fees are recoverable as costs to prevailing parties. Graefe & Graefe v. Beaver Mesa Exploration, 695 P.2d 767 (Colo. App. 1984).

Plaintiff not entitled to costs against state pursuant to this section because there is no express authorization allowing costs to be assessed against the state. McFarland v. Gunter, 829 P.2d 510 (Colo. App. 1992); Smith v. Furlong, 976 P.2d 889 (Colo. App. 1999); Rocky Mtn. Animal Def. v. Div. of Wildlife, 100 P.3d 508 (Colo. App. 2004).

The language of 13-16-122 describing allowable costs does not negate the mandatory provisions of this section by allowing the court to refuse all costs. Nat'l Canada Corp. v. Dikeou, 868 P.2d 1131 (Colo. App. 1993).

A prevailing party entitled to costs should be identified by focusing on the countervailing claims and defenses asserted by the litigants and not on incidental independent factors that may affect the ultimate monetary judgement. The trial court erred by considering non-collateral source receipts in determining if real estate purchasers were prevailing parties entitled to costs. Frost v. Schroeder & Co., Inc., 876 P.2d 126 (Colo. App. 1994).

Determining a plaintiff to be a prevailing party on the basis of nominal damages when the defendant recovers more in damages than the nominal damages would be abuse of discretion. Plaintiff sought nominal damages and subsequent determination as the prevailing party, which carries with it an entitlement to costs. However, such determination on the basis of nominal damages would be an abuse of discretion by the court, since the nominal damages of one dollar would have been less than the $966,178 awarded to the defendant on a counterclaim, and thus the defendant would be determined the prevailing party using a "net judgment" analysis. City of Westminster v. Centric-Jones Constructors, 100 P.3d 472 (Colo. App. 2003).

The trial court's right to allocate costs between defendants is discretionary. The trial court did not abuse its discretion in making the award of costs against the defendants joint and several where one of the defendants is an individual and the other is a conference of churches. Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995).

Even though the imposition of costs is required by this section, the apportionment of costs among multiple defendants is not prescribed. It remains at the discretion of the court. Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996), rev'd on other grounds, 961 P.2d 472 (Colo. 1998).

An award of costs is not prohibited under C.R.C.P. 54(d), even if a plaintiff is not entitled to costs under this section. Weeks v. City of Colo. Springs, 928 P.2d 1346 (Colo. App. 1996).

This statute and C.R.C.P. 54(d) are modified by 13-17-202 (1)(a)(II), which does not allow a party who rejects a settlement offer and recovers less at trial to recover his or her costs, even though that party is determined to be the prevailing party. Bennett v. Hickman, 992 P.2d 670 (Colo. App. 1999).

A federal court exercising diversity jurisdiction has no power to award costs under this section or 13-16-105 because Fed. R. Civ. P. 54(d), which limits the costs that may be awarded, falls well within the statutory authorization of the federal Rules Enabling Act, 28 U.S.C. 2072, and its displacement of state law would not impair any state substantive right. Stender v. Archstone-Smith Operating Trust, 958 F.3d 938 (10th Cir. 2020).

Plaintiff entitled to recover costs for settlement conference and trial transcript if the court made either necessary for litigation. Parker v. USAA, 216 P.3d 7 (Colo. App. 2007), aff'd on other grounds, 200 P.3d 350 (Colo. 2009).

Offer of settlement as to "all claims" unambiguously includes attorney fees and costs if the only claim for attorney fees and costs appears in the complaint. The offer of settlement need not explicitly reference attorney fees or costs. Bumbal v. Smith, 165 P.3d 844 (Colo. App. 2007).

A party who prevails in an action to pierce the corporate veil of a corporation may recover the costs incurred in that action if (1) the action was brought to enforce a breach of contract judgment against the corporation and (2) the contract underlying the judgment authorized an award of costs for enforcing the judgment against the corporation. Swinerton Builders v. Nassi, 2012 COA 17, 272 P.3d 1174.