Waugh v. Veith

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 24, 2025

2025COA41

No. 24CA0741, Waugh v. Veith — Damages — Civil Action for
Deprivation of Rights — Reasonable Attorney Fees and Costs —
Awards to Defendants for Claims the Court Finds Frivolous

Under a newly enacted civil rights statute, “the court may

award reasonable costs and attorney fees to the defendant for

defending any claims the court finds frivolous.” § 13-21-131(3),

C.R.S. 2024. In this section 13-21-131 action, the district court

awarded costs to the prevailing defendants without finding that any

of the plaintiff’s claims were frivolous. The court reasoned that

section 13-21-131(3) did not limit the general rule that a prevailing

defendant is entitled to recover reasonable costs under section

13-16-105, C.R.S. 2024, and C.R.C.P. 54(d), regardless of whether

the plaintiff’s claims are deemed frivolous. A division of the court of

appeals disagrees. The division holds that subsection 13-21-131(3)

controls and precludes the court from awarding costs to the
defendants without finding that the plaintiff’s claims were frivolous.

The division therefore reverses the portion of the court’s order

awarding costs to the defendants.
COLORADO COURT OF APPEALS 2025COA41

Court of Appeals No. 24CA0741
City and County of Denver District Court No. 22CV32396
Honorable Stephanie L. Scoville, Judge

Dale Waugh,

Plaintiff-Appellant,

v.

Daniel Veith and Steven Anderson,

Defendants-Appellees.

ORDER REVERSED IN PART

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

Announced April 24, 2025

Ascend Counsel, LLC, Edward Milo Schwab, Denver, Colorado, for Plaintiff-
Appellant

Thompson, Coe, Cousins & Irons, L.L.P., William T. O’Connell, III, Denver,
Colorado, for Defendant-Appellee Daniel Veith

SGR, LLC, Eric M. Ziporin, Tiffany E. Toomey, Denver, Colorado, for
Defendant-Appellee Steven Anderson
¶1 In this civil rights case brought under section 13-21-131,

C.R.S. 2024, plaintiff, Dale Waugh, appeals the portion of the

district court’s order that awarded costs to defendants, Denver

Police Department officers Daniel Veith and Steven Anderson (the

officers).

¶2 Subsection (3) of section 13-21-131 provides that, “[w]hen a

judgment is entered in favor of a defendant, the court may award

reasonable costs and attorney fees to the defendant for defending

any claims the court finds frivolous.” Although the district court

did not find any of Waugh’s claims to be frivolous, it still awarded

costs to the officers under section 13-16-105, C.R.S. 2024, and

Rule 54(d), reasoning that subsection (3) did not limit recovery of

costs to a prevailing defendant under that statute and rule. We

disagree with the court’s interpretation of these provisions. Instead,

we hold that subsection (3) controls and precluded the court from

awarding costs to the officers without finding that Waugh’s claims

were frivolous. Accordingly, we reverse the district court’s award of

costs to the officers.

1
I. Background

¶3 This case arises from a protest that took place in August 2020,

during which the officers used force against Waugh. Waugh filed

suit against the officers, bringing claims under section 13-21-131

for excessive force, violations of free speech rights, and retaliation.

The district court granted summary judgment in favor of the officers

on Waugh’s free speech and retaliation claims, and a jury returned

a verdict for the officers on Waugh’s excessive force claim.

¶4 After the district court entered judgment, the officers moved

for an award of costs under section 13-16-105 and Rule 54(d). The

officers did not argue that any of Waugh’s claims were frivolous.

Waugh opposed the motions, arguing that, under subsection (3),

the court could not award costs to a prevailing defendant in an

action brought under section 13-21-131 without finding that the

plaintiff’s claims were frivolous.

¶5 The district court determined that nothing in subsection (3)

precluded “recovery of costs pursuant to [section] 13-16-105 and/or

Rule 54 by a defendant who is a prevailing party.” Accordingly, it

awarded the officers $12,835.14 in costs against Waugh.

2
II. Analysis

¶6 Waugh argues on appeal that the district court erred by

awarding costs to the officers without finding that any of his claims

were frivolous. We agree.

A. Relevant Law and Standard of Review

¶7 Ordinarily, “[a] prevailing defendant may recover the

reasonable and necessary costs it incurred in defending litigation.”

Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1186-87

(Colo. App. 2011). Section 13-16-105 provides that, except in

circumstances not relevant here, a prevailing defendant “shall have

judgment to recover his costs against the plaintiff.” Likewise, Rule

54(d) provides that, “[e]xcept when express provision therefor is

made either in a statute of this state or in these rules, reasonable

costs shall be allowed as of course to the prevailing party.”

¶8 Section 13-21-131 is a recently enacted civil rights statute

that authorizes a private right of action against a peace officer “who,

under color of law, subjects or causes to be subjected . . . any other

person to the deprivation of any individual rights . . . secured by the

bill of rights, article II of the state constitution.” § 13-21-131(1). It

contains the following provision concerning costs and attorney fees:

3
In any action brought pursuant to this section,
a court shall award reasonable attorney fees
and costs to a prevailing plaintiff. . . . When a
judgment is entered in favor of a defendant,
the court may award reasonable costs and
attorney fees to the defendant for defending
any claims the court finds frivolous.

§ 13-21-131(3).

¶9 We generally review an award of costs for an abuse of

discretion and will disturb the award only if it is manifestly

arbitrary, unreasonable, or unfair. Archer v. Farmer Bros. Co.,

90 P.3d 228, 230 (Colo. 2004). But we review de novo “any

statutory interpretation or legal conclusion that provides a basis”

for such an award. Cuevas v. Pub. Serv. Co. of Colo., 2023 COA

64M, ¶ 54 (quoting US Fax L. Ctr., Inc. v. Henry Schein, Inc.,

205 P.3d 512, 515 (Colo. App. 2009)) (cert. granted July 1, 2024).

¶ 10 Our primary goal in interpreting a statute is to give effect to

the legislature’s intent as reflected in the plain and ordinary

meanings of the words and phrases used. Nieto v. Clark’s Mkt., Inc.,

2021 CO 48, ¶ 12. We read the statute as a whole, giving

consistent, harmonious, and sensible effect to all its parts. Id. And

“we avoid constructions that would render any words or phrases

superfluous or that would lead to illogical or absurd results.”

4
Elder v. Williams, 2020 CO 88, ¶ 18. These same principles apply

to interpreting rules of civil procedure. Taylor v. HCA-HealthONE

LLC, 2018 COA 29, ¶ 19.

¶ 11 If statutory provisions appear to conflict, we strive to “interpret

[the] conflicting statutes in a manner that harmonizes” them. City

of Florence v. Pepper, 145 P.3d 654, 657 (Colo. 2006). In doing so,

we may consider “other factors, such as legislative history, prior

law, the consequences of a given construction of the statute, and

the end to be achieved by the statute, to determine the meaning of a

statute.” Id. (quoting Martin v. People, 27 P.3d 846, 851 (Colo.

2001)).

¶ 12 When the statutes cannot be harmonized, “[t]he General

Assembly has prescribed two rules for deciding which of two

irreconcilable statutes governs.” Jenkins v. Pan. Canal Ry. Co.,

208 P.3d 238, 241 (Colo. 2009). First, the more specific provision

prevails. Id.; § 2-4-205, C.R.S. 2024. And second, the statute with

the more recent effective date prevails. Jenkins, 208 P.3d at 242;

§ 2-4-206, C.R.S. 2024.

5
B. Discussion

¶ 13 In interpreting subsection (3), the district court concluded that

the legislature did not intend to limit awards of defense costs to

cases in which the plaintiff’s claims are found to be frivolous. As

the court correctly noted, nothing in section 13-21-131 explicitly

“state[s] that a trial court may award costs to a prevailing

[defendant] only if the action was frivolous” or that “statutes and

rules otherwise providing for the recovery of costs to a prevailing

[defendant] do not apply to this class of cases.” Rather, it

concluded, subsection (3) grants discretion to the district court by

providing that it “may award reasonable costs and attorney fees to

the defendant for defending any claims the court finds frivolous.”

§ 13-21-131(3) (emphasis added). Accordingly, the court

determined that there was no conflict between subsection (3) and

the general rule that allows prevailing defendants to recover

reasonable costs under section 13-16-105 and Rule 54(d),

regardless of whether any of the plaintiff’s claims are deemed

frivolous.

¶ 14 As an initial matter, subsection (3) is an “express provision”

for the award of costs and, thus, an exception to the general rule

6
that costs shall be awarded to the prevailing party under Rule 54(d).

C.R.C.P. 54(d) (“[R]easonable costs shall be allowed as of course to

the prevailing party” “[e]xcept when express provision therefor is

made . . . in a statute of this state.”). There is therefore no conflict

between subsection (3) and Rule 54(d). For three reasons, however,

we cannot agree with the district court that there is no conflict

between subsection (3) and section 13-16-105.

¶ 15 First, the district court’s interpretation would render the costs

provision in subsection (3) superfluous. We disagree with the

court’s interpretation that because subsection (3) gives a court

discretion to award defense costs, it does not conflict with section

13-16-105. True, the word “may” does constitute a grant of

discretion. In re Marriage of Young, 2021 COA 96, ¶ 14 (“The word

may ‘is generally indicative of a grant of discretion or choice among

alternatives.’” (quoting AA Wholesale Storage, LLC v. Swinyard,

2021 COA 46, ¶ 29)). But subsection (3) conditions the exercise of

that discretion on a finding that the plaintiff’s claims are frivolous.

A court could thus decline to award costs and fees even if it made a

finding of frivolousness — but it cannot award costs and fees in the

absence of such a finding.

7
¶ 16 If a district court in a section 13-21-131 case retains its

authority under section 13-16-105 to award costs to prevailing

defendants regardless of whether the plaintiff’s claims are deemed

frivolous, then the legislature’s statement in subsection (3) that “the

court may award reasonable costs and attorney fees to the

defendant for defending any claims the court finds frivolous” would

add nothing to the general rule. By permitting defendants to

recover costs in the absence of a finding that claims brought under

section 13-21-131 are frivolous, the district court’s interpretation

effectively reads the “frivolous” standard out of the statute and

renders the entire provision for defense costs meaningless. Such an

interpretation is “contrary to the requirement that statutes be

construed if possible to give effect to every word” and avoid

rendering any words or phrases superfluous. Colo. Motor Vehicle

Dealer Bd. v. Brinker, 39 P.3d 1269, 1272 (Colo. App. 2001); Elder,

¶ 18.

¶ 17 Second, the Colorado Supreme Court has interpreted a similar

provision in another statute as restricting the award of defense

costs to cases in which the plaintiff’s claims are found to be

frivolous. The Job Protection and Civil Rights Enforcement Act of

8
2013, section 24-34-405, C.R.S. 2024, of the Colorado Anti-

Discrimination Act (CADA) authorizes a cause of action for

employees who have been subjected to unfair or discriminatory

employment practices. Concerning costs and attorney fees, CADA

provides that

the court may award reasonable attorney fees
and costs to the prevailing plaintiff. If the
court finds that an action or defense brought
pursuant to this [statute] was frivolous,
groundless, or vexatious . . . , the court may
award costs and attorney fees to the defendant
in the action.

§ 24-34-405(5). Importantly, this subsection, like subsection (3),

does not explicitly say that the court may award costs to a

prevailing defendant only if the court finds that the plaintiff’s claims

were frivolous, groundless, or vexatious. But the supreme court

nevertheless interpreted it as “authoriz[ing] a court to award

attorney fees to all prevailing plaintiffs but restrict[ing] awards of

defense fees and costs to cases in which the plaintiff’s claims are

found to be frivolous, groundless, or vexatious.” Elder, ¶ 26 (second

emphasis added). The court explained that the provision “effectively

creates a mechanism by which claimants act as private attorneys

general, seeking to vindicate the rights secured by CADA” and that

9
CADA claims are “designed to implement the broad policy of

eliminating intentional discriminatory or unfair employment

practices, rather than to compensate an individual for personal

injuries.” Id. at ¶¶ 26-27.

¶ 18 Section 13-21-131 has a comparable goal. A division of this

court has observed that section 13-21-131 is similar to 42 U.S.C.

§ 1983. Woodall v. Godfrey, 2024 COA 42, ¶ 13; see also Hearings

on S.B. 217 before the H. Fin. Comm., 72d Gen. Assemb., 2d Reg.

Sess. (June 10, 2020) (statement of Rep. Serena Gonzales-Gutierrez

explaining that one intent of the bill was to “provide civil rights

enforcement by individuals”). And the United States Supreme

Court has recognized that § 1983 and the fees provision in

42 U.S.C. § 1988 create a mechanism by which claimants act as

private attorneys general to vindicate the federal civil rights policies.

Fox v. Vice, 563 U.S. 826, 832-33 (2011). That section 13-21-131

has a similar purpose as CADA supports our conclusion that

subsection (3) likewise restricts the award of defense costs and fees

to cases in which the plaintiff’s claims are found to be frivolous.

¶ 19 Third, the legislative history of section 13-21-131 supports our

conclusion that subsection (3), not section 13-16-105, provides the

10
avenue for recovery of fees and costs by a prevailing defendant in a

section 13-21-131 action. See City of Florence, 145 P.3d at 657

(when statutory provisions appear to conflict, we may consider

legislative history to determine the meaning of a statute). During a

hearing before the House Finance Committee, Representative Matt

Soper questioned two legal experts about the provision that would

become subsection (3). Representative Soper noted that “the court

may award [attorney fees] to a defendant if the court finds that it’s a

frivolous suit” and expressed concern that prevailing police officers

“would not be awarded attorney’s fees” for defending nonfrivolous

suits. Hearings on S.B. 217 before the H. Fin. Comm., 72d Gen.

Assemb., 2d Reg. Sess. (June 10, 2020). One of the experts

explained that the risk of having to pay the defendant’s attorney

fees “would make it really impossible for . . . a victim of police

brutality to ever bring forward a claim” and that, “from a practical

perspective,” a police officer’s legal fees would almost always be paid

by their department or union. Id. “So, just to be clear,”

Representative Soper confirmed, “if [a suit] was not determined to

be frivolous, they wouldn’t be able to have attorney’s fees.” Id.

While this discussion focused on attorney fees and did not mention

11
costs, it makes clear that the legislature understood the provision

that “the court may award reasonable costs and attorney fees to the

defendant for defending any claims the court finds frivolous,”

§ 13-21-131(3), to mean that the court could not award such costs

and fees unless the plaintiff’s claims were found to be frivolous.

¶ 20 Having concluded that subsection (3) conflicts with section

13-16-105’s mandate that costs be awarded to a prevailing

defendant, we turn to which statute applies to actions brought

under section 13-21-131. Because subsection (3) is part of a more

specific and recent statute than section 13-16-105, we conclude

that subsection (3) controls the award of defense costs in actions

brought under section 13-21-131. See Jenkins, 208 P.3d at 241.

¶ 21 In sum, we conclude that the district court erred by

determining that it could award the officers their costs under

section 13-16-105 and Rule 54(d). Subsection (3) controls the

award of costs in this case.1

1 To the extent the officers contend that we should remand this case

to the district court for a determination of frivolousness, we reject
that contention. The officers did not argue in their motion for an
award of costs that any of Waugh’s claims were frivolous, and they
may not do so now.

12
III. Disposition

¶ 22 The portion of the district court’s order awarding $12,835.14

in costs against Waugh is reversed.

JUDGE J. JONES and JUDGE BROWN concur.

13