Colorado § 13-16-122 - Items includable as costs.

§ 13-16-122. Items includable as costs.

(1) Whenever any court of this state assesses costs pursuant to any provision of this article, such costs may include:

(a) Any docket fee required by article 32 of this title or any other fee or tax required by statute to be paid to the clerk of the court;

(b) The jury fees and expenses provided for in article 71 of this title;

(c) Any fees required to be paid to sheriffs pursuant to section 30-1-104, C.R.S.;

(d) Any fees of the court reporter for all or any part of a transcript necessarily obtained for use in this case;

(e) The witness fees, including subsistence payments, mileage at the rate authorized by section 13-33-103, and charges for expert witnesses approved pursuant to section 13-33-102 (4);

(f) Any fees for exemplification and copies of papers necessarily obtained for use in the case;

(g) Any costs of taking depositions for the perpetuation of testimony, including reporters' fees, witness fees, expert witness fees, mileage for witnesses, and sheriff fees for service of subpoenas;

(h) Any attorney fees, when authorized by statute or court rule;

(i) Any fees for service of process or fees for any required publications;

(j) Any item specifically authorized by statute to be included as part of the costs.

Source: L. 81: Entire section added, p. 947, § 2, effective July 1. L. 2001: (1)(b) amended, p. 1270, § 18, effective June 5.

Cross references: For items includable as costs in criminal actions, see § 18-1.3-701.

ANNOTATION

Law reviews. For article, "The Bill of Costs", see 25 Colo. Law. 71 (Nov. 1996).

The awarding of costs is at the discretion of the trial court. Mem'l Gardens, Inc. v. Olympian Sales & Mgt. Consultants, Inc., 661 P.2d 296 (Colo. App. 1982).

An award of costs lies within the discretion of the trial court, subject to the parameters of this section; however, the awarding of expert witness fees is not without limits but is circumscribed by the rule of reason, viz., sound judicial discretion. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991).

Whether to award expert witness fees and the amount, if any, to be awarded are matters within the sound discretion of the trial court. Only reasonable expert witness fees may be awarded. Steele v. Law, 78 P.3d 1124 (Colo. App. 2003).

Subject to the limitations set forth in this section, an award of costs lies within the sound discretion of the trial court. Rossmiller v. Romero, 625 P.2d 1029 (Colo. 1981); Spencer v. United Mortg. Co., 857 P.2d 1342 (Colo. App. 1993).

As long as the costs incurred are incurred solely for the benefit of the litigation and are not commingled with any of the general costs of doing business or the costs of other litigation, they cannot properly be termed overhead and may be included as costs under this section. Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo. App. 1998), aff'd on other grounds sub nom. Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000).

Trial court abused its discretion in awarding plaintiff costs for a client fee related to contempt order because the affidavit submitted for recovery of the fee failed to establish that it was incurred solely for the related litigation. At least some portion of the fee was for general business costs; therefore, the fee is not recoverable. Madison Capital Co., LLC v. Star Acquisition VIII, 214 P.3d 557 (Colo. App. 2009). But see In re January, 2019 COA 87, 446 P.3d 954.

Cost of preparing trial transcript recoverable under subsection (1)(d) where transcript was obtained for use in the case. By stipulating that the court determine liability based upon the trial transcripts, the parties reduced the costs of litigation by avoiding a retrial. The court needed the trial transcript, however, to consider all the testimony. Parker v. USAA, 216 P.3d 7 (Colo. App. 2007), aff'd on other grounds, 200 P.3d 350 (Colo. 2009).

Although the expenses of taking a deposition are generally not allowed as items of costs, subsection (1)(g) permits the award of the "costs of taking depositions for the perpetuation of testimony". Since the deposition transcript was used in lieu of testimony at trial to resolve the disputed claims, there was no abuse of the trial court's discretion in its inclusion of the costs of the deposition in defendant's bill of costs. Spencer v. United Mortg. Co., 857 P.2d 1342 (Colo. App. 1993).

Record of trial court was not sufficient to determine which costs were allowed and whether they were reasonable and permitted by statute, thereby requiring a remand to the trial court to make findings under this section and § 13-16-112. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991).

The determination of whether attorney fees are costs or damages in a particular case is, by its very nature, a fact- and context-sensitive one, which rests within the sound discretion of the trial court. Ferrell v. Glenwood Brokers, Ltd., 848 P.2d 936 (Colo. 1993), overruled in LHM Corp. v. Martinez, 2021 CO 78, 499 P.3d 1050, to the extent Ferrell suggests appealability of a judgment hinges on the fact-specific determination of whether the attorney fees at issue are best classified as costs or damages; Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140 (Colo. App. 2003).

The list of items awardable as costs in this section is illustrative rather than exclusive. The use of the word "includes" rather than the word "means" in a regulatory definition indicates a nonexclusive list which may be enlarged upon. Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993); Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994).

While deposition costs for ordinary discovery purposes are not allowable, if witness dies and his deposition is listed on the trial data certificate in lieu of his testimony, this constitutes perpetuation of testimony, and costs are allowable. Schultz v. Linden-Alimak, Inc., 734 P.2d 146 (Colo. App. 1986); Frontier Expl. v. Am. Nat., 849 P.2d 887 (Colo. App. 1992).

Allowance of expenses in taking discovery deposition proper where the taking of the deposition and its general content are reasonably necessary for the development of the case in light of facts known to counsel at the time it was taken. Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993); Harvey v. Farmers Ins. Exch., 983 P.2d 34 (Colo. App. 1998), aff'd on other grounds sub nom. Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000).

Including costs of medical reports was not abuse of discretion. Absent specific prohibition, trial court has discretion in awarding costs since the list of expenses that may be awarded as costs under this section is not exclusive. Church v. Am. Standard Ins. Co., 764 P.2d 405 (Colo. App. 1988).

Accrued interest on loans taken out by prevailing parties to finance their cases is not a recoverable cost as a matter of law. Catlin v. Tormey Bewley Corp., 219 P.3d 407 (Colo. App. 2009).

Denial of costs for videotaping deposition was not abuse of discretion by court. Dorrance v. Family Athletic Club, 772 P.2d 667 (Colo. App. 1989).

No abuse of discretion in the trial court's denial of plaintiff's request for expert witness fees when plaintiff failed to provide sufficient documentation and itemization to establish her entitlement to expert witness fees since the court was under no obligation to order a costs hearing and plaintiff expressly requested the court not hold such a hearing. Steele v. Law, 78 P.3d 1124 (Colo. App. 2003).

Trial court has discretion to award costs, subject to this section, and award of deposition costs is within the court's discretion. Terry v. Sullivan, 58 P.3d 1098 (Colo. App. 2002).

C.R.C.P. 103 (8)(b)(5) provides authority to make an award of attorney fees. United Bank v. State Treasurer, 797 P.2d 851 (Colo. App. 1990).

Witness fees incurred for expert whose testimony on steps taken by reasonably prudent applicant in Torrens action on which court relied in reaching its conclusions on due process issues properly included in cost award under subsection (1)(g). Lobato v. Taylor, 13 P.3d 821 (Colo. App. 2000), rev'd on other grounds, 71 P.3d 938 (Colo. 2002).

Costs attributable to expert witness fees for expert witnesses that did not testify at trial were properly awarded. These costs were valuation expenses necessarily incurred by reason of the litigation and were necessary for the proper preparation for trial. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part, rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

When an expert witness for the prevailing party does not testify because his or her testimony is ruled unnecessary, and such ruling does not change the posture of the case, the prevailing party is not entitled to costs for the expert witness's fees. Catlin v. Tormey Bewley Corp., 219 P.3d 407 (Colo. App. 2009).

Costs were properly awarded for an engineer despite the fact that the engineer's license had expired, because litigation consultation and testimony do not require a license. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).

Costs of deposition not permitted where deposition taken for purposes of ordinary discovery and not to perpetuate testimony. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).

This section was not intended to repeal the requirement of § 13-33-103 that mileage fees may be awarded only to subpoenaed witnesses. Welch v. George, 19 P.3d 675 (Colo. 2000).

The language of this section describing allowable costs does not negate the mandatory nature of § 13-16-104 which requires the court to award costs to a successful plaintiff. Nat'l Canada Corp. v. Dikeou, 868 P.2d 1131 (Colo. App. 1993).

This section does not prohibit an award of costs that includes the expenses associated with computerized legal research, but the costs must be billed separately from attorney fees, such research must have been necessary for trial preparation, and the costs requested for such research must be reasonable. Roget v. Grand Pontiac, Inc., 5 P.3d 341 (Colo. App. 1999).

District court abused its discretion in awarding full in-house photocopying expenses, all costs billed by mediator and special master, and mileage and meal expenses. There was no evidence supporting the reasonableness or necessity of the in-house photocopying or the mileage expenses; the award of the mediator's and the special master's costs contravened an agreement between the parties; and the cost of counsel's meals was not attributable to litigation — counsel would need to eat regardless of any litigation. Valentine v. Mtn. States Mut. Cas. Co., 252 P.3d 1182 (Colo. App. 2011).

While a mandatory settlement conference is not specifically enumerated as an awardable cost in this section, plaintiff was entitled to recover the costs of the conference because the court made the cost necessary for the litigation of the case. The court required the parties to participate in a settlement conference prior to proceeding to trial. Parker v. USAA, 216 P.3d 7 (Colo. App. 2007), aff'd on other grounds, 200 P.3d 350 (Colo. 2009).

Applied in Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990); Barnes v. Winford, 833 P.2d 756 (Colo. App. 1992); Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).