Bainbridge, Inc. v. DOUGLAS COUNTY BD., No. 01CA1742.
| Decision Date | 15 August 2002 |
| Docket Number | No. 01CA1742. |
| Citation | 55 P.3d 271 |
| Parties | BAINBRIDGE, INC.; Village Homes of Colorado, Inc., a Colorado corporation; Tradition Concepts, Inc., a Colorado corporation; Genesee Co./Castle Pines, Inc., a Colorado corporation; High View Homes, L.L.C., a Colorado limited liability company; South Platte Co., a Colorado limited liability company; April Corporation, a Colorado corporation; Forest Glen, Inc., a Colorado corporation; Larsen Homes, Ltd., a Colorado corporation; LHL II, Ltd., a Colorado corporation; Sattler Homes, Inc., a Colorado corporation; and LHL I, Ltd. a Colorado corporation, Plaintiffs-Appellants, v. The DOUGLAS COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, Brad W. Schacht, David P. Hutchinson, Denver, Colorado, for Plaintiffs-Appellants.
J. Mark Hannen, County Attorney, Castle Rock, Colorado; Mulliken, Gleason, Weiner, Whitney & Jolivet, P.C., Edward A. Gleason, Murray I. Weiner, Colorado Springs, Colorado, for Defendant-Appellee.
Opinion by Judge ROTHENBERG.
Plaintiffs, Bainbridge, Inc., Village Homes of Colorado, Inc.; Tradition Concepts, Inc.; Genesee Co./Castle Pines, Inc.; High View Homes, L.L.C.; South Platte Co.; April Corporation; Forest Glen, Inc.; Larsen Homes, Ltd.; LHL II, Ltd.; Sattler Homes, Inc.; and LHL I, Ltd. (the homebuilders), appeal the trial court's order awarding costs to defendant, the Douglas County Board of Commissioners (the Board), including those costs awarded in an earlier, related action that the homebuilders successfully appealed. We affirm in part, reverse in part, and remand with directions.
This is the third appeal arising from a dispute between the parties over the reasonableness of the fees that the Board charged the homebuilders for constructing new buildings. Most of the salient facts are set forth in Bainbridge, Inc. v. Board of County Commissioners, 964 P.2d 575 (Colo.App.1998)(Bainbridge I). We state additional facts only as necessary to resolve the issues presented here, which are limited to the trial court's award of costs following the remand proceedings.
In the first action, the trial court conducted a bench trial and dismissed the case after the homebuilders presented their evidence. Pursuant to C.R.C.P. 54(d), the Board then filed a bill of costs to recover the cost of its experts, and the trial court awarded costs to the Board in the first action, including those for the Board's cost-accounting expert and its Uniform Building Code expert.
A division of this court reversed the judgment in the first action. Without explicitly reversing the award of costs from that action, the panel stated: "Because additional proceedings are required to resolve [the homebuilders'] complaint, we do not address their contentions relative to the award of costs by the court." Bainbridge I, supra, 964 P.2d at 577.
On remand (the second action), the Board employed several experts, including two new cost-accounting experts who were certified public accountants and the same Uniform Building Code expert. Another bench trial was conducted to resolve whether the fees imposed by the Board were reasonable to cover the direct and indirect costs of the county's building department.
The trial court again entered judgment for the Board, and the Board then filed a second bill of costs to recover its expenses for the experts employed during the second action. The Board took the position that the trial court's order awarding costs in the first action was "the law of the case" and had survived the reversal of the judgment and that the costs associated with their experts in the second action were reasonable.
The homebuilders filed a response to the second bill of costs. They objected to the costs associated with the new cost-accounting experts and the Uniform Building Code expert's services in the second action, contending such costs were unreasonable. They also maintained that because the judgment in the first action was reversed on appeal, the underlying award of costs from that action was no longer valid.
Meanwhile, the homebuilders appealed the judgment in the second action.
Several months later, the trial court entered an order awarding costs to the Board in the second action, including costs for the two new cost-accounting experts and the Uniform Building Code expert. In its order, the trial court also upheld the validity of the cost award in the first action, stating:
Another division of this court affirmed the trial court's judgment on the merits for the Board in the second action. Bainbridge, Inc. v. Board of County Commissioners, 53 P.3d 646, 2001 WL 987599 (Colo.App. No. 00CA1435, Aug. 30, 2001)(Bainbridge II).
The homebuilders contend the trial court erred in upholding the first order awarding costs. We agree.
The Colorado Supreme Court has stated that "[a] judgment of reversal ... simply leaves the parties in the same position as they were before the judgment of the lower court was rendered." Schleier v. Bonella, 77 Colo. 603, 605, 237 P. 1113, 1113 (1925). Thus, when an underlying judgment is reversed, an award that is dependent on that judgment for its validity is also necessarily reversed and becomes a nullity. Nichols v. Burlington Northern & Santa Fe Ry., 56 P.3d 106 (Colo.App. 2002)(award of costs becomes null when judgment supporting that award is reversed); Harkrider v. Posey, 24 P.3d 821 (Okla.2000)(same); see Nagy v. Landau, 807 P.2d 1227 (Colo.App. 1990)(award of attorney fees is necessarily reversed where judgment upon which it relied was reversed).
Pursuant to C.R.C.P. 54(d), "[e]xcept when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." To be a prevailing party for the purposes of this rule, a party must have succeeded on a significant issue presented by the litigation and must have achieved some of the benefits sought in that action. Weeks v. City of Colorado Springs, 928 P.2d 1346 (Colo.App.1996).
However, where a judgment has been successfully appealed, an award of costs previously entered on that judgment is no longer valid because, upon remand, that judgment no longer exists. The identity of the prevailing party is still unknown, and only after the stage of the proceedings where a prevailing party can be identified will a court's order awarding costs be valid. In re Water Rights of Board of County Commissioners, 891 P.2d 981 (Colo.1995); Harkrider v. Posey, supra, 24 P.3d at 833 ().
Here, the judgment underlying the award of costs in the first action was reversed in Bainbridge I, and the case was remanded for further proceedings. As a result, the Board was no longer the prevailing party, and the order awarding costs, which was dependent on and ancillary to that vacated judgment, was also reversed. See In re Water Rights of Board of County Commissioners, supra. The parties returned to the same positions they were in before the filing of the first action. See Schleier v. Bonella, supra.
We therefore conclude that the order awarding costs in the first action is a nullity and that the trial court erred in upholding its validity. Upon remand, however, and upon proper motion, the trial court may determine the propriety of awarding costs arising from the first action because the identity of the prevailing party can now be identified. See In re Water Rights of Board of County Commissioners, supra.
Given our conclusion that the award of costs is a nullity that must be vacated, we need not address the Board's argument that it was a final order that was not timely appealed.
Although we have concluded the original cost award must be vacated, the trial court also ruled that the Board was entitled to its costs after the...
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