recognizing that a court's findings on the reasonableness and necessity of costs may be implicit, so long as the court's order does not contain "any unexplained reduction in any cost"
How later courts described this case
- recognizing that a court's findings on the reasonableness and necessity of costs may be implicit, so long as the court's order does not contain "any unexplained reduction in any cost"
- recognizing that findings may be implied in a district court’s ruling so long as the ruling “is sufficient to determine its basis”
- holding that while “it is the better practice to make express findings, they may be implicit in a court’s ruling”
- noting that while it is better practice for a court to make express findings, they may be implicit in a court’s ruling
Written by the judges who cited it.
The opinion
Judge RULAND
concurring in part and dissenting in part.
I concur with Parts I, II and III of the majority opinion. I disagree with the conclusion reached in Part IV, and thus, I respectfully dissent.
As noted by the majority, in Van Steenhouse v. Jacor Broadcasting of Colorado, Inc., 935 P.2d 49 (Colo.App.1996), a division of this court held that for the trial court's cost award to be reviewed on appeal, the court must adopt sufficient findings to disclose the basis for its decision. Indeed, while space was specifically provided in the order for those findings in this case, none were made. And, contrary to the majority's conclusion, I am unable to determine from the record before us the basis for the trial court's award of costs.
The initial bill of costs filed by defendant reflected that offers of settlement were made on February 20, 1996, to plaintiff Marqueece Foster and on June 6, 1996, to plaintiff Lexus Foster. Because the jury verdicts entered were less than these offers, defendant requested an award of costs in the amount of approximately $13,200.
Plaintiffs filed a nine-page response challenging essentially each of the costs requested. For example, with reference to an accident reconstruction expert, the response pointed out that he had been retained and testified in a criminal case involving this incident and that costs should not be awarded on that basis. In a reply, defendant claimed that the expert was retained for both cases and that fees claimed for work done after the offers of settlement were rejected. However, neither the billing statements from the expert nor the response of defendant were verified. See C.R.C.P. 121 $ 1-15(2).
The first difficulty I have with the award is that the issues in the criminal case (vehicular homicide) were significantly different than those involved in this case (negligence and negligence per se ). Specifically, in the criminal case it was necessary for the prosecution only to establish that defendant was driving the vehicle prior to the fatal collision while intoxicated. See People v. Garner, 781 P.2d 87 (Colo.1989). Here, some fault for the collision had to be attributed to defendant to establish liability,. Hence, one necessarily assumes that the focus of any investigation in each case would be different.
Nevertheless, there is nothing in this ree-ord to explain how the expert's work was related to this case. While he was listed as an expert, contrary to the allegations in the defendant's trial court submission, I do not find any copy of his report in the record specifying what he actually did. Further, entries on his invoices are generic and without specific reference to his professional activity other than in the most general terms.
Next, notwithstanding defendant's claim that the fees requested were incurred after the offer of settlement was made, as noted, one of the offers was not made until June 6, 1996. However, the invoices from the expert reflect that approximately $9,800 of the services were billed on dates prior to this offer and only $1,205 were for services incurred after that date. Yet, for reasons I am unable to ascertain, the award of costs was allocated equally between the two plaintiffs.
*798 Finally, as noted, defendant stipulated in this case prior to trial that he was guilty of negligence and negligence per se. In contrast, the expert prepared for and actually testified in the criminal case. Nevertheless, $6,200 of the total fees incurred were charged for the civil case and a significantly lesser amount was charged to the criminal case. Again, I cannot determine the reasons therefor from this record.
Other examples of the problems posed by the lack of findings appear from the defendant's submissions. However, to discuss those issues would unduly lengthen this dissent.
I note only that while, as the majority correctly points out, no hearing was requested by plaintiffs on defendant's bill of costs, it is undisputed that defendant had the burden to establish those costs. The purpose of the court's findings is to advise this court why defendant did or did not satisfy that burden.
Because I am unable to understand that determination here, I would reverse the award of costs and remand the case to the trial court for entry of findings on the contested issues.