Colo. R. App. P. 39

As amended through Rule Change 2024(7), effective April 4, 2024

Rule 39 - Costs

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as ordered by the trial court.

(b) Costs for and Against the State of Colorado. Costs for or against the State of Colorado or any of its agencies or officers will be assessed under subsection (a) only if authorized by law.

(c)Costs on Appeal Taxable in the Trial Court.

(1) Costs Allowed. The following costs on appeal are taxable in the trial court for the benefit of the party entitled to costs under this rule:

(A) the preparation and transmission of the record;

(B) the reporter's transcript, if needed to determine the appeal;

(C) premiums paid for a supersedeas or other bond to preserve rights pending appeal;

(D) docket fees charged pursuant to C.A.R. 12(a);

(E) fees charged for E-Filing and E-Service as defined in C.A.R. 30(a); and

(F) any item specifically authorized by statute or rule to be included as part of the costs.

(2) Bill of Costs. A party who wants costs to be taxed in the appellate court must file an itemized and verified bill of costs with the clerk of the trial court. The cost of printing or otherwise producing necessary copies of the record is taxable at rates not higher than those generally charged for such work in Denver. The bill of costs and proof of service must be filed within 14 days after entry of the appellate mandate. Any objection must be filed within 14 days after service of the bill of costs. Upon request to of the trial court clerk, the clerk of the appellate court will provide a receipt reflecting docket fees paid pursuant to Rule 12 and fees paid for E-Filing and E-Service.

C.A.R. 39

Source: c and e amended May 15, 1986, effective 11/1/1986; c amended and adopted December 14, 2011, effective 1/1/2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b. Amended and Adopted by the Court, En Banc, November 3, 2015, effective immediately; amended and adopted by the Court, En Banc, March 23, 2023, effective 3/23/2023.

Comments

2015

[1] This rule has been amended, in part, to be consistent with F.R.A.P. 39, which governs costs, and for clarity and readability. The rule was also revised to shift responsibility for taxing costs from the appellate courts to the trial courts, which reflects and is consistent with the current practice of the courts.

[2] Prior subsection (a), which was previously titled, "To Whom Allowed," is now, more accurately titled, "Against Whom Assessed." The substance of prior subsection (a) had not changed, but its contents are now organized in list form.

[3] Prior subsection (c), entitled "Costs on Appeal Taxable in the Trial Courts," has been deleted, but its substance has been relocated to revised subsection (c)(2), entitled, "Bill of Costs."

[4] Prior subsection (d), entitled "Clerk to Include Costs in Mandate," has been deleted.

[5] Prior subsection (e), entitled "Costs of Appeal Taxable in the Trial Court," has been re-lettered to revised subsection (c) as a result of the deletion of prior subsections (c) and (d), and its title had been slightly revised to "Costs on Appeal Taxable in the Trial Courts."

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Annotation Law reviews. For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). Costs, strictly so called, are a matter of statute or rule of court. Antero & Lost Park Reservoir Co. v. Lowe, 70 Colo. 467, 203 P. 265 (1921). Costs are recoverable only by virtue of the statute allowing them. Phillips v. Corbin, 25 Colo. 567, 56 P. 180 (1899); Giampapa v. Am. Family Mut. Ins. Co., 12 P.3d 839 (Colo. App. 2000), rev'd on other grounds, 64 P.3d 230 (Colo. 2003). Costs are limited to docket fees and the expense of producing necessary copies of briefs filed with the appellate court. Giampapa v. Am. Family Mut. Ins. Co., 12 P.3d 839 (Colo. App. 2000), rev'd on other grounds, 64 P.3d 230 (Colo. 2003). The appellate court is the appropriate court for determination of an award of costs under this rule. Where the trial court awarded costs of the appeal on remand, following a denial by the appellate court of an untimely request for costs under this rule, the trial court erred. Giampapa v. Am. Family Mut. Ins. Co., 12 P.3d 839 (Colo. App. 2000), rev'd on other grounds, 64 P.3d 230 (Colo. 2003). Court discretion. The use of the word "shall" in section (a) does not mean that a trial court is required to award costs sought under section (e) to a prevailing party on appeal or that the court only has discretion with respect to the amount. In re Goodbinder, 119 P.3d 584 (Colo. App. 2005). Costs and attorney fees distinguished. Where there is statutory authorization for an award of attorney fees incurred by the prevailing party in defending a judgment on appeal, the question of what court should determine the amount awarded is not governed by this or any other rule. Giampapa v. Am. Family Mut. Ins. Co., 12 P.3d 839 (Colo. App. 2000), rev'd on other grounds, 64 P.3d 230 (Colo. 2003). In the absence of any statute, rule, or precedent limiting the trial court's jurisdiction to award prevailing party appellate attorney fees, an application to the trial court was appropriate. Giampapa v. Am. Family Mut. Ins. Co., 12 P.3d 839 (Colo. App. 2000), rev'd on other grounds, 64 P.3d 230 (Colo. 2003). Costs are only to reimburse the successful party. Antero & Lost Park Reservoir Co. v. Lowe, 70 Colo. 467, 203 P. 265 (1921). For all trials of same cause. Where there is more than one trial of the same cause, the successful party is entitled to recover costs for all the trials. Wallace Plumbing Co. v. Dillon, 73 Colo. 10, 213 P. 130 (1922). And including annexation proceedings. Under this rule the successful party may recover costs incurred in the supreme court upon appeal in annexation proceedings. Phillips v. Corbin, 25 Colo. 567, 56 P. 180 (1898). Where suit is instituted and prosecuted vexatiously, defendant's attorney fees may be taxed as costs. London v. Allison, 87 Colo. 27, 284 P. 776 (1930). In action in mandamus to compel a city council to grant a permit, where judgment is for the plaintiff, he is entitled to recover from the defending officials who voted against granting the permit his costs taxed in the trial court, but not from those who voted in favor of granting the permit. City of Colorado Springs v. Street, 81 Colo. 181, 254 P. 440 (1927). This rule does not include a case dismissed for want of jurisdiction. Bartels v. Hoey, 3 Colo. 279 (1877). Objection barred after payment of costs. When there is no fraud or wrongful purpose or mistake of fact, one may not object further to a taxation of costs against him after he has paid them, or received payment thereof. Webber v. Phister, 71 Colo. 332, 206 P. 385 (1922). Rationale for section (b) limitation. The limitation in section (b) stems from the basic concept that costs should not be charged against a sovereign state, unless the proper authority so directs. People in Interest of W.M., 643 P.2d 794 (Colo. App. 1982). Applied in In re Trask, 40 Colo. App. 556, 580 P.2d 825 (1978); Caldwell v. Armstrong, 642 P.2d 47 (Colo. App. 1981); Holcomb v. Steven D. Smith, Inc., 170 P.3d 815 (Colo. App. 2007); URS Group, Inc. v. Tetra Tech FW, Inc., 181 P.3d 380 (Colo. App. 2008); Lucht's Concrete Pumping, Inc. v. Horner, 224 P.3d 355 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1058 (Colo. 2011). .

For costs incurred in civil actions in general, see article 16 of title 13, C.R.S. .