Response to Applicants' Joint Motion for Costs and Fees

Home Browse Search

to C.R.S. § 13 -17 -202, which authorizes an award of costs where aplaintiff "recovers a final judgment in excess of the amount offered." The Applicants are not, however, entitled to costs under § 13 -17 -202. First, § 13 -17 -202 inarguably does not apply where non - monetary conditions are imposed as part of an offer of settlement. See Tallitsch v. Child Support Services, Inc., 926 P.2d 143 (Colo. App. 1996); Martin v. Minnard, 826 P.2d 1014,.1019 (Colo. App. 1993). This limitation on the application of § 13 -17 -202 is fatal to the Applicants argument, because the proposed settlement was entirely non - monetary in nature, addressing only the appropriation of water. The Applicants argue that the Court should find § 13 -17 -202 applicable to water law cases because "[w]ater is the currency of any application." However, as this court is well aware, the amount of water awarded is but a small part of any water rights application. The terms and conditions limiting a water right are often as or more important than flow rates and volumetric limitations. The Applicants also argue that the Court should find § 13 -17 -202 applicable to water law cases because a cost - shifting statute would "check" abuse in water cases, and because there is a "need to implement that policy concern." Such an argument, however, is unsupported by any case law, and would amount to a policy -based reinterpretation of § 13 -17 -202. The State submits that the State Legislature, rather than this Court, should make such a policy decision. Second, § 13 -17 -202 also does not apply to the proposed settlement because the Applicants' proposed decrees included conditions not imposed in the Court's decisions. As noted above, the proposed settlement included conditions and language objectionable to the State.. These conditions differ from those imposed by the Court. Indeed, the Applicants admit in their motion that there are differences between the proposed settlement decrees and the final decisions in both cases. As noted, under Colorado Law, § 13 -17 -202 does not apply where non - monetary conditions are imposed as part of an offer of settlement. See Tallitsch v. Child Support Services, Inc., 926 P.2d 143 (settlement offer contingent upon the amount offered being applied as an offset to back child support owed not within the scope of the statute). 3 The Applicants attempt to counter this limitation on the application of § 13 -17 -202, first, by arguing that Tallitsch and Minnard do not restrict the application of § 13 -17 -202 to awards of a non - monetary nature, but merely means that costs cannot be awarded based on settlement offers conditioned on terms that go beyond the claims at issue. However, the rule announced in Tallitsch and Minnard clearly must be restricted to monetary awards, for the simple reason that other restrictive conditions cannot be reduced to a fungible "currency," with each condition comparable to one another on a dollar- for - dollar basis. 4 Applicants admit they are "not unmindful" of case law restricting the application of § 13 -17 -202 from settlements involving non - monetary conditions. Applicants argue that the court should 13