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13-16-105. When defendant recovers costs


If any person sues in any court of record in this state in any action wherein the plaintiff or demandant might have costs in case judgment is given for him and he is nonprossed, suffers a discontinuance, is nonsuited after appearance of the defendant, or a verdict is passed against him, then the defendant shall have judgment to recover his costs against the plaintiff, except against executors or administrators prosecuting in the right of their testator or intestate, or demandant, to be taxed; and the same shall be recovered of the plaintiff or demandant, by like process as the plaintiff or demandant might have had against the defendant, in case judgment has been given for the plaintiff or demandant.


Source: R.S. P. 154, 5. G.L. 327. G.S. 401. R.S. 08: 1058. C.L. 6574. CSA: C. 43, 4. CRS 53: 33-1-5. C.R.S. 1963: 33-1-5.



Section 13-64-205 (1)(b) does not preclude or affect a prevailing defendants right to recover costs and does not imply a repeal of this section. Mullins v. Kessler, 83 P.3d 1203 (Colo. App. 2003).

A party challenging the reasonableness of expert fees is entitled to a hearing on the issue. Dunlap v. Long, 902 P.2d 446 (Colo. App. 1995).

Whether to award costs and what amount to award are decisions within the sound discretion of the trial court. Its ruling will not be reversed on appeal without clear abuse of discretion. Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003).

This section expressly mandates an award of costs to prevailing defendant. Trial court erred in denying defendants request for costs. However, court has considerable discretion in determining which costs to award and what amounts are reasonable. Acierno by & through Acierno v. Garyfallou, 2016 COA 91, 409 P.3d 464.

Costs of third-party defendant properly divided between plaintiff and defendant or borne by two defendants when both had claims against third-party defendant since dismissal of the claims made third-party defendant the prevailing party against both. Cobai v. Young, 679 P.2d 121 (Colo. App. 1984); Poole v. Estate of Collins, 728 P.2d 741 (Colo. App. 1986).

Court construed the Health Care Availability Act in harmony with this section and C.R.C.P. 54(d) to allow a prevailing defendant to recover costs in a medical negligence action. Mullins v. Kessler, 83 P.3d 1203 (Colo. App. 2003).

Applied in Survey Engrs, Inc. v. Zoline Found., 193 Colo. 488, 568 P.2d 436 ; Romero v. Rossmiller, 43 Colo. App. 215, 603 P.2d 964 (1979); Gilmore v. Rubeck, 708 P.2d 486 (Colo. App. 1985); Bowers v. Loveland Pub. Co., 773 P.2d 595 (Colo. App. 1988).