Mitchell v. Chengbo Xu
| Decision Date | 25 March 2021 |
| Docket Number | Court of Appeals No. 19CA1129 |
| Citation | 488 P.3d 1200 |
| Court | Colorado Court of Appeals |
| Parties | Patricia MITCHELL, Plaintiff-Appellant, v. CHENGBO XU, Defendant-Appellee. |
Bachus & Schanker, LLC, Brian C. Petroff, Scot C. Kreider, Denver, Colorado, for Plaintiff-Appellant
Law Office of Robert B. Hunter, Matthew D. Baukol, Denver, Colorado, for Defendant-Appellee
Opinion by JUDGE FOX
¶ 1 In a personal injury case with a verdict in plaintiff Patricia Mitchell's favor, she appeals the district court's award of "actual costs" to defendant, Chengbo Xu. The dispute concerns the effect of Xu's two pre-trial statutory offers of settlement under section 13-17-202, C.R.S. 2020. Because the district court's challenged order misconstrued the statute, we reverse the judgment and remand.
¶ 2 On January 30, 2019, a jury awarded Mitchell $2,700.00 in economic damages. On February 5, 2019, the court entered judgment for Mitchell, effective January 30, 2019, and declared her the prevailing party. The court later awarded costs to both parties.
¶ 3 Before trial, Xu made two statutory offers of settlement. The first February 14, 2018, offer proposed to settle "all claims asserted and that may be or could have been asserted, in the amount of three thousand five hundred and 00/100 dollars ($3,500.00), inclusive of costs." The second September 14, 2018, offer proposed a settlement of "all claims asserted and that may be or could have been asserted, in the amount of five thousand and 00/100 dollars ($5,000.00)." There was no explicit reference to costs. Mitchell declined both offers of settlement.
¶ 4 After trial, both parties moved for costs pursuant to section 13-17-202. Mitchell claimed that as the "prevailing party" she was entitled to recover pre- and post-judgment interest and actual costs that accrued before Xu's September 14, 2018, offer of settlement. Xu, invoking section 13-17-202(1)(a)(II), maintained she was entitled to recover her actual costs because her September offer of settlement exceeded Mitchell's recovery.
¶ 5 Reviewing the two offers of settlement and the accrued interest and costs incurred, the court awarded Mitchell $829.08 in costs and $331.43 in pre-judgment interest (and post-judgment interest). It also awarded Xu $12,370.31 in costs. The court examined the prejudgment interest accrued before each offer of settlement but only considered the costs incurred before the first offer:
February 14, 2018 Offer September 14, 2018
($3,500, with costs) Offer ($5,000)
Verdict $2,700.00 $2,700.00
Pre-offer $331.43 $486.95
Prejudgment
Interest (PJI)
Pre-Offer Costs $829.081
Verdict+PJI $3,031.43 $3,186.95
Verdict+PJI+Costs $3,860.51
[Editor's Note: The preceding image contains the reference for footnote1 ].
The court accounted for costs pursuant to section 13-17-202(1)(a)(II), which incorporates the provisions of section 13-16-104, C.R.S. 2020. Mitchell asked that costs also be included in the court's analysis of the September offer to determine whether Xu's offer exceeded the amount of the final judgment. The court declined to do so because the September offer's language differed from the language of the February offer. As we explain below, while the language of the offers differed, we conclude that the second offer also included costs.
¶ 6 After deciding that Mitchell was entitled to $3,860.51 — an amount that was more than the $3,500 February offer of settlement, but less than the $5,000 September offer — the court awarded Mitchell and Xu costs. In evaluating the September offer against Mitchell's trial success, the court included the verdict and prejudgment interest, but excluded $2,983.61 in actual costs Mitchell incurred before September 14, 2018. If these costs had been included, Mitchell's final judgment (as of September 14, 2018) would total $6,169.61 (excluding postjudgment interest).
¶ 7 On appeal, Mitchell challenges the district court's interpretation of the law as applied to the September offer of settlement and the resulting cost award to Xu. As we explain below, because the district court erred in applying the relevant statute, we reverse and remand.
¶ 8 Mitchell claims the district court misapplied the law. We agree.
¶ 9 The issue is preserved. We review questions of law and statutory interpretation de novo. Tulips Invs., LLC v. State ex rel. Suthers , 2015 CO 1, ¶ 11, 340 P.3d 1126 ; Jefferson Cnty. Bd. of Equalization v. Gerganoff , 241 P.3d 932, 935 (Colo. 2010).
¶ 10 In civil litigation, when a plaintiff "recovers ... damages ... then the plaintiff ... shall have judgment to recover against the defendant his costs to be taxed; and the same shall be recovered, together with the ... damages." § 13-16-104 ; see also C.R.C.P. 54(d) (). Section 13-16-122, C.R.S. 2020, in turn, identifies what items are includable as costs. But, to encourage settlement, Colorado's "offer of settlement" statute shifts the burden of actual costs to a plaintiff who rejects a defendant's offer of settlement only to recover less after trial.2 § 13-17-202 ; Morgan v. Genesee Co., LLC , 86 P.3d 388, 393 (Colo. 2004) (); Danko v. Conyers , 2018 COA 14, ¶ 91, 432 P.3d 958.
Relatedly, section 13-17-202(2) provides as follows:
When comparing the amount of any offer of settlement to the amount of a final judgment actually awarded, any amount of the final judgment representing interest subsequent to the date of the offer in settlement shall not be considered.
¶ 12 The last sentence of section 13-17-202(1)(a)(II) was added in 2008. A division of this court construed the 2008 amendment to entitle "a prevailing plaintiff to recover pre-offer costs if he or she prevails at trial." Miller v. Hancock , 2017 COA 141, ¶ 32, 410 P.3d 819 ; Novak v. Craven , 195 P.3d 1115, 1120-22 (Colo. App. 2008) ().
¶ 13 And, if the final judgment does not exceed the offer of settlement, a defendant offering to settle recovers actual costs if (1) the actual costs accrued after the offer of settlement, § 13-17-202(1)(a)(II) ; (2) they are actual costs, excluding attorney fees, § 13-17-202(1)(b) ; and (3) they are reasonable. See Scholz v. Metro. Pathologists, P.C. , 851 P.2d 901, 909-10 (Colo. 1993) (); Danko , ¶ 70 ().
¶ 14 In determining the meaning of a statute, our primary goal is to ascertain and give effect to the intent of the General Assembly. Lewis v. Taylor , 2016 CO 48, ¶ 20, 375 P.3d 1205. We read the language in the dual contexts of the statute as a whole and the comprehensive statutory scheme, giving consistent, harmonious, and sensible effect to all of the statute's language. Krol v. CF & I Steel , 2013 COA 32, ¶ 15, 307 P.3d 1116. After doing this, if we determine that the statute is not ambiguous, we enforce it as written and do not resort to other rules of statutory construction. Id.
¶ 15 The core of the parties’ dispute is whether, in evaluating Xu's September offer of settlement against Mitchell's final judgment, the court was required to include the actual costs Mitchell incurred before that offer. Our analysis starts with the language of the operative statute.
¶ 16 Section 13-17-202(1)(a)(II) specifies that a plaintiff shall be awarded actual costs only if the "final judgment" exceeds the offer of settlement. While section 13-17-202 does not define "final judgment," the term has acquired a particular meaning — namely, a judgment that "disposes of the entire litigation on the merits," Novak , 195 P.3d at 1121 (citation omitted). Regarding Xu's September offer of settlement, Mitchell contends that her pre-September actual costs should be included in her final judgment and Xu posits otherwise.
¶ 17 To determine whether a final judgment obtained by a plaintiff is more favorable than an offer of settlement made by a defendant for purposes of the offer of settlement statute, the terms of the offer of settlement must be examined. See Miller , ¶ 34 ; Rubio v. Farris , 51 P.3d 992, 994 (Colo. App. 2002). That Xu did not expressly reference costs in the September offer of settlement does not mean that the actual costs Mitchell incurred before September are excluded in assessing whether Mitchell's final judgment exceeded Xu's...
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People v. Johnson
...vary the language of a statute by referring to legislative history. See Mitchell v. Chengbo Xu , 2021 COA 39, ¶ 37, 488 P.3d 1200, 1207 (Lipinsky, J., specially concurring) (noting that, where statutory language is plain and concise and the meaning is clear, a court should not vary that mea......