Allen v. Board of Regents

24CA1632 Allen v Board of Regents 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1632
El Paso County District Court No. 19CV31669
Honorable Michael P. McHenry, Judge

Russell Allen,

Plaintiff-Appellant,

v.

Board of Regents for the University of Colorado,

Defendant-Appellee.

JUDGMENT AND ORDER AFFIRMED

Division VI
Opinion by JUDGE SULLIVAN
Welling and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Killmer Lane, LLP, Darold W. Killmer, Liana Orshan, Denver, Colorado; Richard
LaFond, Boulder, Colorado; Robert M. Liechty PC, Robert M. Liechty, Denver,
Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Megan Clark, Special Assistant Attorney
General, Gabrielle Robbie, Special Assistant Attorney General, Denver,
Colorado, for Defendant-Appellee

HKM Employment Attorneys LLP, Adam M. Harrison, Hayden G. DePorter,
Denver, Colorado, for Amicus Curiae Colorado PELA
¶1 Plaintiff, Russell Allen, appeals the district court’s judgment

entered on the jury’s verdict in favor of defendant, the Board of

Regents for the University of Colorado (the University), and its order

awarding the University costs. We affirm.

I. Background

¶2 The University hired Allen as a catering chef and bakery

manager at its Colorado Springs campus in 2016. Two years later,

the University hired Corey King as an associate director and

executive chef. King’s duties included supervising Allen.

¶3 In October 2018, Allen reported King to the director of

auxiliary financial services for allegedly misusing University

equipment and systems to purchase and prepare food for personal

purposes. The University’s internal audit department investigated

the report and found that King didn’t commit misconduct.

¶4 Before Allen submitted his whistleblower report, the University

had documented issues with Allen’s performance. In 2017, the

University had placed Allen on a performance improvement plan

(PIP), which he had successfully completed. And in September

2018, King had emailed Robin Margolin, his direct supervisor and

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Allen’s second-level supervisor, that he had been having issues with

Allen’s lack of professionalism.

¶5 After Allen submitted his whistleblower report, Margolin sent

Anja Wynne, the human resources (HR) director, a list of over ten

complaints that others had made against Allen. A vendor also

emailed King, at King’s request, with information about a phone call

the vendor had with Allen during which Allen acted

unprofessionally by berating and screaming profanities at the

vendor (the vendor incident). A few days later, the University fired

Allen.

II. Procedural History

¶6 Allen sued the University, asserting claims for breach of an

implied contract; promissory estoppel; and violation of Colorado’s

whistleblower statute, section 24-50.5-103(1), C.R.S. 2025. He also

requested relief under 42 U.S.C. § 1983. The University moved to

dismiss the breach of contract, promissory estoppel, and § 1983

claims. The district court granted that motion.

¶7 The University then moved for summary judgment on Allen’s

whistleblower claim. The district court granted that motion too.

2
¶8 Allen appealed the dismissal of the breach of contract and

promissory estoppel claims and the grant of summary judgment to

the University on the whistleblower claim. See Allen v. Bd. of

Regents, (Colo. App. No. 21CA2055, Mar. 2, 2023) (not published

pursuant to C.A.R. 35(e)) (Allen I). A division of this court affirmed

the dismissal of the breach of contract and promissory estoppel

claims but reversed the grant of summary judgment on the

whistleblower claim. Id., slip op. at ¶ 1.

¶9 After trial on the whistleblower claim on remand, the jury

returned a verdict for the University. The jury found that Allen had

made his whistleblower report in good faith, but the report wasn’t a

substantial or motivating factor in the University’s decision to

terminate him. The court entered judgment on the jury’s verdict

and awarded the University its costs.

¶ 10 On appeal, Allen challenges three evidentiary rulings by the

district court as well as its order awarding the University costs.

III. Evidentiary Contentions

¶ 11 Turning first to Allen’s evidentiary contentions, Allen argues

the district court erred by excluding (1) his unemployment file;

(2) certain University policies; and (3) evidence of a comparator

3
employee whom the University also terminated. We address each

contention in turn.

A. Applicable Law and Standard of Review

¶ 12 Under Colorado’s whistleblower statute, an employer may not

discipline an employee based on the employee’s disclosure of

protected information. § 24-50.5-103(1). Colorado courts analyze

whistleblower claims using the three-step framework announced by

the United States Supreme Court in Mt. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977). See, e.g., Ward v.

Indus. Comm’n, 699 P.2d 960, 967-68 (Colo. 1985); Taylor v.

Regents of Univ. of Colo., 179 P.3d 246, 248 (Colo. App. 2007).

Under this framework, the plaintiff must first demonstrate that

(1) they made a protected disclosure and (2) the disclosure was a

“substantial or motivating factor” for the disciplinary action. Ward,

699 P.2d at 968. The burden then shifts to the defendant to

establish that (3) it would have made the same decision absent the

plaintiff’s protected disclosure. Id. The University doesn’t dispute

that Allen made a protected disclosure under the first step.

¶ 13 Under the second step, relevant factors to determine whether

the protected disclosure was a substantial or motivating factor for a

4
termination include the historical background of the employer’s

decision to terminate; the casual nexus between the protected

activity and the employer’s decision to terminate; the extent to

which the employer departed from normal procedures or policies in

reaching its decision; the pretextual character of the reasons

advanced for termination; and the evidentiary support for the

employer’s asserted reasons for termination. Johnson v. Jefferson

Cnty. Bd. of Health, 662 P.2d 463, 476 (Colo. 1983).

¶ 14 A plaintiff may show pretext, among other ways, based on

inconsistencies in the employer’s explanation for the termination

decision. See Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 56.

As relevant here, the plaintiff may also present evidence that the

employer acted contrary to either a written policy prescribing the

action to be taken by the employer under the circumstances or an

unwritten company policy or practice when making the decision to

terminate. See St. Croix v. Univ. of Colo. Health Scis. Ctr., 166 P.3d

230, 237 (Colo. App. 2007).

¶ 15 A plaintiff who attempts to show that the employer acted

contrary to an unwritten policy or practice often does so by

providing evidence that the employer treated them differently from

5
other similarly situated employees who violated work rules of

comparable seriousness. Id. To be similarly situated, the

employees must be subject to the same standards regarding

performance, evaluation, and discipline. See id.

¶ 16 Subject to certain exceptions, all relevant evidence is

admissible. CRE 402; Mosley v. Daves, 2025 COA 80, ¶ 45.

Evidence is relevant if it tends to “make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

CRE 401. But relevant evidence may be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

cumulative evidence.” CRE 403. In applying CRE 403, we afford

the evidence the maximum probative value attributable by a

reasonable fact finder and the minimum unfair prejudice to be

reasonably expected from the evidence. Kelly v. Haralampopoulos,

2014 CO 46, ¶ 45; Holley v. Huang, 284 P.3d 81, 84 (Colo. App.

2011).

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¶ 17 We review a district court’s evidentiary rulings for an abuse of

discretion. Curry v. Brewer, 2025 COA 28, ¶ 27. “A court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair or when it misapplies the law.” Id.

¶ 18 On appeal, we disregard any error that is harmless — that is,

error that doesn’t affect the substantial rights of the parties. C.A.R.

35(c); C.R.C.P. 61; Johnson v. Schonlaw, 2018 CO 73, ¶ 11. An

error doesn’t affect a party’s substantial rights if we can say with

fair assurance that the error didn’t substantially influence the

outcome of the case or impair the basic fairness of the trial.

Schonlaw, ¶ 11.

B. Unemployment File

¶ 19 We first address Allen’s contention that the district court

should have admitted Allen’s unemployment file. The file included

Allen’s application to the Colorado Department of Labor and

Employment’s Division of Unemployment Insurance (the

Unemployment Division) for unemployment benefits and

information the University submitted opposing that application.

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1. Additional Background

¶ 20 Before trial, the University moved to exclude Allen’s

unemployment file under CRE 402 and 403, among other grounds.

¶ 21 At a pretrial hearing, Allen argued that the court should admit

the unemployment file to show pretext because the University

provided information to the Unemployment Division that was false,

incomplete, and inconsistent with the University’s position in

litigation. The University responded that the unemployment file

was incomplete only because the University used an HR vendor to

communicate with the Unemployment Division on the University’s

behalf, and, although the University sent all relevant information to

the HR vendor, some information hadn’t made it into Allen’s

unemployment file. The University argued that explaining this

“triangle” relationship would confuse the jury and waste time. It

also argued that the University had always maintained, both in its

opposition to Allen’s unemployment application and in litigation,

that it fired Allen because he had a history of performance issues

and unprofessional conduct that culminated with the vendor

incident.

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¶ 22 The court expressed concern that admitting the

unemployment file would create a “sideshow” about a “collateral

issue.” But it deferred making a final ruling until trial.

¶ 23 On the morning of the first day of trial, the court excluded the

unemployment file under CRE 403. It explained that the

unemployment file’s probative value was minimal and that

explaining the context and the University’s relationship with the HR

vendor would confuse the issues for the jury. The court also found

that the “extensive amount of overhead” necessary to adequately

explain the issue to the jury would waste time.

¶ 24 On appeal, Allen again argues that the court should have

admitted the unemployment file because it included false

information the University submitted to the Unemployment Division

that is inconsistent with evidence the University presented at trial.

Specifically, Allen says the unemployment file wrongly suggested

that the University warned Allen, afforded him a chance to fix his

behavior, and fired him for violating the PIP.

2. Analysis

¶ 25 Allen is correct that his unemployment file contains

information suggesting that the University warned Allen and gave

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him a chance to fix his behavior. He is also correct that both sides

presented evidence at trial that Margolin never spoke to Allen about

his behavior or the complaints against him before terminating his

employment. Nevertheless, we conclude for four reasons that the

court didn’t abuse its discretion by excluding the unemployment file

under CRE 403.

¶ 26 First, Allen doesn’t explain how the University’s inconsistent

statements about whether it spoke to him and gave him a chance to

fix his behavior demonstrate that its stated reasons for firing him

were pretextual. See Bird v. West Valley City, 832 F.3d 1188, 1203

(10th Cir. 2016) (“Plaintiff’s failure to develop [a] connection

between th[e] anomaly [of irregularities in the process] and her

termination, which was a separate disciplinary proceeding, means

that th[e] alleged procedural irregularity is insufficient to establish

pretext.”). Indeed, while inconsistencies in an employer’s

explanation for firing an employee may be evidence of pretext, see,

e.g., Williams, ¶ 56, Allen argues only that the University made

inconsistent statements about the pretermination procedures he

received. See Farmer v. Turn Key Installation, L.L.C., 812 Fed. Appx.

200, 203 n.2 (5th Cir. 2020) (“Farmer fails to explain how being

10
informed that his services were no longer needed is inconsistent

with Appellees’ justification regarding his work behavior.

Accordingly, we do not find conflicting explanations with regard to

this employment decision.”).

¶ 27 Second, the University consistently explained, both in the

unemployment file and at trial, that it fired Allen due to his

inappropriate and unprofessional behavior, culminating in the

vendor incident. Thus, the unemployment file wasn’t probative of

whether the University provided pretextual reasons for firing Allen.

¶ 28 Third, even if the inconsistencies revealed by the

unemployment file were minimally probative, we conclude the court

acted within its discretion in determining that the risk of confusing

the jury and wasting time outweighed the file’s minimal probative

value. See CRE 403. As the court noted, explaining to the jury the

University’s relationship with the HR vendor and why certain

information the University sent to the HR vendor wasn’t included in

Allen’s unemployment file would have required an “extensive

amount of overhead,” thus consuming limited trial time on what

amounted to a mere “collateral matter.” See People v. Knight, 167

P.3d 147, 153 (Colo. App. 2006) (“The trial court could reasonably

11
have concluded that this inquiry would have triggered a time-

consuming and confusing foray into collateral and prejudicial

matters and would have shed no light on the [relevant issue].”); see

also Smith v. Virgin Islands Port Auth., 457 Fed. Appx. 183, 187 (3d

Cir. 2012) (The trial court had discretion “not to admit evidence

from [the employee’s] unemployment benefits hearing, which it

determined would only confuse the proceedings.”). On this record,

we can’t say the court’s decision constituted an abuse of discretion.

¶ 29 Finally, while Allen’s unemployment file included the PIP, the

file didn’t indicate that the University fired him for violating the PIP.

See Glover v. Serratoga Falls LLC, 2021 CO 77, ¶¶ 40-45 (rejecting

contention that was contradicted by the record as “simply

incorrect”). To the contrary, the University consistently maintained

that it fired Allen for inappropriate and unprofessional behavior.

¶ 30 Accordingly, we conclude that the district court didn’t abuse

its discretion by excluding Allen’s unemployment file.

C. University Policies

¶ 31 We next address Allen’s contention that the district court erred

by excluding certain University policies.

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¶ 32 At the outset, we recognize the University asserts that Allen

preserved only some of his arguments regarding the court’s

exclusion of the University’s policies. But because we ultimately

conclude that Allen’s policy-related arguments are unavailing, we

need not decide whether he preserved each of his subarguments.

See In re Marriage of Mack, 2022 CO 17, ¶ 12.

1. Additional Background

¶ 33 Before trial, the University moved to exclude the University’s

written “regent policies” under CRE 402 and 403. As relevant to

this appeal, the written policies (1) “encouraged” members of the

University community, including supervisors, to have “open and

effective” communication on issues with the individuals directly

involved before discussing the issues with others; (2) described

certain dispute resolution procedures for personnel problems;

(3) protected individuals who reported violations from retaliation;

and (4) required the Board of Regents or its delegate to approve all

terminations.

¶ 34 The district court granted the University’s motion and

excluded the policies under CRE 403. It explained that admitting

the policies would be (1) tantamount to a “backdoor method” for

13
Allen to present his dismissed breach of contract claim and

(2) likely to “cause confusion and waste time.”

¶ 35 On the morning of the first day of trial, the court precluded

Allen’s counsel from asking witnesses about the policies because

they impliedly raised a contract claim. The court added that it was

simply following guidance provided by the Allen I division. While

the court considered altering its ruling based on counsel’s

assurance that he wouldn’t imply that the University had breached

any promise, it ultimately stood by its ruling. The court clarified,

however, that counsel could ask witnesses about how they conduct

investigations.

¶ 36 On appeal, Allen contends that the court shouldn’t have

excluded the policies because they show that the University failed to

follow its own policies in terminating Allen, which is evidence of

pretext. We agree but find the error harmless.

2. Analysis

¶ 37 In Allen I, the division affirmed the dismissal of Allen’s breach

of contract claim because the University’s policies reflect mere

aspirational standards that don’t impose an enforceable contractual

obligation. See Allen I, slip op. at ¶¶ 47, 58. But the division also

14
reversed the grant of summary judgment to the University on

Allen’s whistleblower claim because, among other things, “the

record contain[ed] evidence to support an inference that Margolin

‘departed from normal procedures or policies’” in deciding to fire

Allen. Id. at ¶ 30 (quoting Johnson, 662 P.2d at 476). Thus, the

Allen I division made clear that the University’s policies were

relevant to the whistleblower claim even though they provided

inadequate support for a breach of contract claim.

¶ 38 Like the Allen I division, we agree with Allen that the policies

were relevant because they could tend to show that the University

deviated from its normal procedures when firing Allen, thus

supporting the inference that the University gave pretextual reasons

for its termination decision. See Johnson, 662 P.2d at 466.

Although the University argues that most of the subject policies

weren’t mandatory, a fact finder could infer that even an

aspirational policy helped inform historic practices or typical

procedures that the University departed from when firing Allen. See

Williams, ¶¶ 57-59 (affirming pretext finding based on departures

from previous chief of police policy and typical polygraph

procedures). When coupled with the low bar for relevancy under

15
CRE 401, we have little difficulty concluding that the policies were

at least somewhat relevant to Allen’s whistleblower claim.

¶ 39 We also aren’t convinced that admitting the policies would

have confused the jury. While we recognize that the district court

enjoys considerable discretion in deciding whether to exclude

evidence under CRE 403, we are also mindful that we must afford

the evidence its maximum probative value attributable by a

reasonable fact finder and the minimum unfair prejudice to be

reasonably expected. See Holley, 284 P.3d at 84. Here, the district

court believed that admitting the policies would confuse the jury by

providing a “backdoor method” for Allen to present his contract

claim. But the court had already dismissed Allen’s breach of

contract claim before trial. Because the court didn’t instruct the

jury on a breach of contract claim, we fail to see how the jury could

have misused the policies to find the University liable on such a

claim. Cf. Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (Colo.

2011) (“Absent evidence to the contrary, we presume that a jury

follows a trial court’s instructions.”).

¶ 40 Given this lack of unfair prejudice, we conclude that the

district court abused its discretion by excluding the policies. See

16
Holley, 284 P.3d at 84 (concluding trial court abused its discretion

under CRE 403 when the excluded evidence “presented no

particular risk of unfair prejudice”).

3. Harmlessness

¶ 41 While the district court abused its discretion in excluding the

policies, we nonetheless conclude that the error was harmless. See

C.A.R. 35(c); C.R.C.P. 61.

¶ 42 Allen asserts that the court’s erroneous exclusion of the

policies prejudiced him in three primary ways. First, he argues that

the court’s ruling prevented him from showing that the University

deviated from its policies encouraging open and effective

communication when it failed to tell him about the complaints

against him before terminating his employment. Second, Allen

contends the court’s exclusion of the policies precluded him from

arguing that the University’s whistleblower policy required him to

report King and that the University acted inconsistently with that

policy by later terminating his employment. Third, Allen says that,

based on the court’s ruling, he couldn’t argue that the University

17
departed from its Board of Regents’ delegation policy when it failed

to provide certain information to the delegate who fired him.1

¶ 43 Allen doesn’t argue that any of the written policies imposed

mandatory obligations on the University. Instead, each of his

arguments rests on the assumption that the University deviated

from its “normal” practices (which he contends were consistent with

its written policies) when firing him. See Johnson, 662 P.2d at 476.

But admitting the written policies wasn’t the sole route to

establishing the University’s normal practices. To the contrary,

Allen had the opportunity to present — and did present —

substantial other evidence regarding the University’s normal

practices for handling issues involving employees in Allen’s

situation. See Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289-90

(10th Cir. 2013) (recognizing that pretext can be shown by evidence

that the employer departed from an “unwritten policy” or “general

practice”); see also Baines v. Walgreen Co., 863 F.3d 656, 664 (7th

Cir. 2017) (“An employer’s unusual deviation from standard

1 Allen doesn’t contest that a Board of Regents delegate terminated

him.

18
procedures can serve as circumstantial evidence of

discrimination.”).

¶ 44 Allen presented evidence, for example, about whether the

University had a general practice of communicating with employees

before firing them. Specifically, Allen asked Margolin, Allen’s

second-level supervisor, whether the University’s decision to fire

him without first speaking to him informally was consistent with its

“practice or procedure.” Margolin responded that she “didn’t have

to sit down with [Allen] at th[at] point” because the University had a

“practice that we step back when there’s an investigation going on

as not to look retaliatory or be retaliatory.” Allen also asked

Margolin whether, “according to University practices, Mr. Allen had

a right to know about the allegations against him.” Margolin

explained that Allen knew the allegations against him.

¶ 45 Allen also asked Wynne, the HR director, about the

University’s general investigation practices, including whether the

HR department’s “functions” entail warning an employee that their

job is in jeopardy and ensuring a termination is done properly.

Wynne responded that warning the employee falls to the employee’s

19
supervisor, but she agreed that the HR department ensures

terminations are completed properly.

¶ 46 Allen himself also testified in response to a juror’s question

about whether the University had a “clear process” for making

“decisions on employment” and, if so, whether that process was

“clearly relayed” to him during the time “leading to termination.”

Allen explained that (1) the University has a “progressive discipline”

and “verbal coaching” process for employees; (2) the University

applied that process to other employees; and (3) it failed to follow

the process when terminating him. Allen added that, given how the

University operated, he was surprised that no one informed him

about the complaints against him before it terminated his

employment.

¶ 47 The jury also heard evidence regarding the University’s general

practices involving whistleblowers and whether the University acted

inconsistently with those practices. Allen testified that he had

previously read University policies that he believed required him to

report King’s alleged misconduct. And yet, according to Allen, the

University never interviewed him regarding his whistleblower report

against King.

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¶ 48 Margolin’s testimony similarly revealed that the University

changed course when deciding how to respond to Allen’s

problematic behavior. She testified that she had been planning to

meet with Allen regarding the complaints against him, but she

ultimately decided against it after Allen filed his whistleblower

report. She justified her course change by pointing to the

University’s practice of “step[ping] away” during a whistleblower

investigation. Margolin further explained, in response to a juror

question, that the University’s practice of “step[ping] back” when an

employee files a whistleblower report applies even when the report

and the whistleblower’s problematic behavior are unrelated.

¶ 49 Wynne similarly testified about the University’s practice of

avoiding any appearance of retaliation when a whistleblower also

has a documented history of performance issues. And the associate

vice chancellor who oversaw Allen’s department testified that the

University had a general practice of warning the subject of a

whistleblower report to not retaliate against the reporting employee.

¶ 50 Finally, Allen cross-examined Margolin about the Board of

Regents delegate’s normal process for approving terminations, the

information she provided to the delegate, and the delegate’s process

21
in approving Allen’s termination. Wynne also testified about the

University’s normal process for relaying information to the delegate

on “all termination actions.” And the associate vice chancellor

testified about the information that he provided, and didn’t provide,

to the delegate through the chain of command.

¶ 51 In short, the jury heard substantial evidence regarding the

University’s general practices involving employees in Allen’s

situation. Given this evidence, we can say with fair assurance that

the district court’s erroneous exclusion of the written policies didn’t

affect Allen’s substantial rights. See Schonlaw, ¶ 11; see also

People v. Bus. or Bus. Located at 2896 W. 64th Ave., 937 P.2d 873,

876-77 (Colo. App. 1996) (alleged error harmless when ample

evidence on the issue was elicited from other sources).

D. Comparator Employee

¶ 52 Allen next contends that the district court erred by excluding

evidence that the University treated a comparator employee

differently, and more favorably, than Allen during the process

leading up to termination.

¶ 53 During trial, Allen made an offer of proof that the University

gave the comparator an opportunity to share their side of the story

22
before it fired them, but it didn’t afford Allen a similar opportunity.

The University objected and argued that the comparator wasn’t

similarly situated because they were investigated and terminated

for alleged sexual harassment. The court sustained the objection,

finding the comparator evidence was both irrelevant and

inadmissible under CRE 403.

¶ 54 We discern no abuse of discretion in the district court’s

exclusion of the comparator evidence on relevancy grounds. See

CRE 402. The comparator wasn’t similarly situated, and therefore

not relevant, because the University was obligated to follow

procedures dictated by federal law, laid out in Title IX, when

investigating the sexual harassment allegations levied against the

comparator. See 20 U.S.C. § 1682 (empowering federal agencies to

issue rules and regulations related to sex discrimination in

education programs); 34 C.F.R. §§ 106.44-106.46 (2025) (describing

mandatory grievance procedures an education institution must

follow when it receives allegations of sex discrimination, including

sex-based harassment).

¶ 55 The complaints against Allen, by contrast, weren’t governed by

Title IX. As a result, Allen wasn’t similarly situated to the

23
comparator. See St. Croix, 166 P.3d at 240-41 (plaintiff not

similarly situated to comparator because plaintiff was on probation

and subject to different standards than comparator); see also

Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 562 (7th Cir. 1998)

(plaintiff not similarly situated to comparator because plaintiff was

accused of sexual harassment while comparator wasn’t).

IV. Costs

¶ 56 Allen also contends that the district court erred by awarding

the University the full amount of its requested costs.

¶ 57 After prevailing at trial, the University requested $20,743.34 in

costs under C.R.C.P. 54(d). The University also pointed to the offer

of judgment statute, § 13-17-202, C.R.S. 2025, arguing it had

served Allen a statutory offer of settlement more than fourteen days

prior to trial, Allen had rejected the offer, and Allen didn’t

subsequently recover more than the University’s offer. The district

court found that the University’s requested costs were reasonable

and therefore awarded it the full amount.

¶ 58 On appeal, Allen contends that (1) a cost award of more than

$20,000 for a three-day trial is “patently unreasonable”; (2) the

defense team’s travel costs were unreasonable because the team

24
was overstaffed and stayed too many nights in hotels, mileage costs

were inconsistent and unnecessary, and meal expenses aren’t

awardable under our precedent; (3) costs for Tide stain remover

sticks and printer ink were unreasonable; and (4) costs for exhibit

tabs and binders were excessive. We aren’t persuaded.

¶ 59 We review a district court’s award of costs for an abuse of

discretion. Valentine v. Mountain States Mut. Cas. Co., 252 P.3d

1182, 1187 (Colo. App. 2011). Subject to exceptions not applicable

here, the prevailing party in a civil case is generally entitled to

recover its “reasonable costs.” C.R.C.P. 54(d); see Ute Water

Conservancy Dist. v. Fontanari, 2022 COA 125M, ¶ 84.

¶ 60 In addition, if a defendant extends a written settlement offer

more than fourteen days before trial that is rejected by the plaintiff,

and the plaintiff then fails to recover at trial more than the amount

offered, the defendant is entitled to recover its “actual costs” that

accrued after the offer of settlement. § 13-17-202(1)(a)(II). The

actual costs awarded under this statute must be reasonable. Catlin

v. Tormey Bewley Corp., 219 P.3d 407, 415 (Colo. App. 2009).

¶ 61 As the outset, Allen’s general contention that the court’s cost

award is unreasonable for a three-day trial isn’t sufficiently specific.

25
Therefore, we won’t address it. See Valentine, 252 P.3d at 1187 n.1

(“[T]he size of the award is insufficient, standing alone, to show an

abuse of discretion.”).

¶ 62 In addition, Allen’s second and third contentions — regarding

the defense team’s travel costs and the costs for the Tide remover

sticks and printer ink — are unpreserved. In his response to the

University’s bill of costs, Allen argued only that a cost award for the

defense team’s travel costs wasn’t authorized by statute. He didn’t

argue that defense team’s travel costs were unreasonable or

unauthorized by our case law. And he didn’t challenge the

expenses for Tide sticks or printer ink at all. Because Allen didn’t

preserve those arguments, we won’t address them. See id. at 1192

(“The Valentines did not raise their first and second arguments

below, and therefore we will not address them.”).

¶ 63 Allen did, however, preserve his fourth contention that the

University’s costs for binders and tabs were unreasonable, arguing

that the University may reuse those supplies after trial. But the

district court concluded that those costs were reasonable because

the University wouldn’t have incurred them but for the trial. We

perceive no abuse of discretion in the court’s reasoning. See id. at

26
1195-96 (court properly awarded costs that were incurred “due to

litigation and in preparation for trial”); cf. Moye White LLP v. Beren,

2013 COA 89, ¶ 42-44 (costs that assisted counsel in “efficiently

preparing for trial” were properly awarded even though the claimed

expenses were for items not used at trial).

V. Disposition

¶ 64 We affirm the judgment and the order awarding the University

its costs.

JUDGE WELLING and JUDGE GOMEZ concur.

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