A plaintiff who obtains judgment or an award of execution in an action brought under subsection (4) or (5) of rule 106 (a), C.R.C.P., shall recover his costs of suit. The defendant shall recover his costs if the action brought under subsection (4) or (5) of rule 106 (a), C.R.C.P., is dismissed pursuant to rule 41, C.R.C.P.
Source: R.S. p. 155, § 11. G.L. § 333. G.S. § 407. R.S. 08: § 1069. C.L. § 6585. CSA: C. 43, § 15. CRS 53: § 33-1-11. C.R.S. 1963: § 33-1-11.
ANNOTATION
The word "shall" in this section evinces a legislative intent that the prevailing party in a C.R.C.P. 106(a)(4) action must be awarded reasonable costs. Carney v. Civil Serv. Comm'n, 30 P.3d 861 (Colo. App. 2001).
Section allows a prevailing plaintiff in a C.R.C.P. 106(a)(4) action to recover costs against the state, its officers, or agencies. Branch v. Colo. Dept. of Corr., 89 P.3d 496 (Colo. App. 2003).
This section does not require an award of costs if a party achieves mixed success in a C.R.C.P. 106(a)(4) action involving multiple claims or issues. Any other reading would require a court to ignore §§ 13-16-108 and 13-16-109 and established case law that provides the court discretion to award costs if a party achieves some success when several matters are pleaded. Phillips v. Watkins, 166 P.3d 197 (Colo. App. 2007).
Applied in Romero v. Rossmiller, 43 Colo. App. 215, 603 P.2d 964 (1979); Rossmiller v. Romero, 625 P.2d 1029 (Colo. 1981).