Ciancio v. Adams Industrial

23CA1946 Ciancio v Adams Industrial 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1946

Adams County District Court No. 22CV30220

Honorable Teri L. Vasquez, Judge

Nancy Ciancio,

Plaintiff-Appellee,

v.

Adams Industrial Development Group, LLC, and C-Ball Ventures LLC d/b/a

Dealers Auto Auction of the Rockies,

Defendants-Appellants.

ORDER AFFIRMED

Division IV

Opinion by JUDGE PAWAR

Navarro and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Ciancio Ciancio Brown, P.C., Loren M. Brown, Daniel A. Wartell, Denver,

Colorado, for Plaintiff-Appellee

Holley, Albertson & Polk, P.C., Dennis B. Polk, Eric E. Torgersen, Lakewood,

Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Defendants, Adams Industrial Development Group, LLC

(AIDG) and Dealers Auto Auction of the Rockies (DAAR), appeal a

single part of the costs award to plaintiff, Nancy Ciancio. We affirm.

¶ 2 Ciancio and AIDG owned a piece of property together. DAAR

used some of that property. Ciancio sued AIDG and DAAR, alleging

that AIDG failed to pay its share of the property taxes and that

DAAR failed to pay Ciancio fair market rental value for its use of the

property.

¶ 3 Ciancio prevailed at trial and sought prevailing party costs

under C.R.C.P. 54(d).

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The district court awarded those costs,

which included Ciancio’s commission of an appraisal report by an

expert for the property in question. Defendants challenge the costs

awarded for the appraisal report on the sole basis that the report

was commissioned before the complaint was filed. We reject this

argument.

¶ 4 Rule 54(d) authorizes a court to award to the prevailing party

“reasonable costs . . . considering any relevant factors which may

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Ciancio remains the prevailing party at this time. Ciancio v.

Adams, slip op. at ¶ 1 (Colo. App. No. 23CA1380, June 20, 2024)

(not published pursuant to C.A.R. 35(e)).

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include the needs and complexity of the case.” Our supreme court

has explained that costs are awardable under Rule 54(d) if they

were “reasonable and necessary costs of litigation.” Gallegos Fam.

Props., LLC v. Colo. Groundwater Comm’n, 2017 CO 73, ¶ 42.

¶ 5 We review a prevailing party cost award for abuse of

discretion, reversing only if the award was manifestly arbitrary,

unreasonable, or unfair. Id. at ¶ 37.

¶ 6 The district court awarded Ciancio the cost of the appraisal

report even though it was incurred before litigation began because

the expert’s appraisal of fair market rental value was adopted by the

court, the expert’s testimony at trial was consistent with and based

on the report, and the expert’s appraisal testimony was “integral” to

one of Ciancio’s claims. The court also noted that “the report

appears to have been prepared to secure a strong pre-litigation

posture (in the hopes of avoiding litigation).”

¶ 7 Defendants do not challenge any of these findings on appeal.

They simply argue that the appraisal report cost was not awardable

because it was incurred before litigation commenced. Importantly,

they do not explain why, based on the court’s unchallenged

findings, commissioning the appraisal report was not reasonable

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and necessary for the litigation, regardless of when it was

commissioned.

¶ 8 Defendants do not cite any opinion holding that otherwise

awardable costs are rendered unawardable under Rule 54(d) only

because they were incurred before a complaint was filed. And we

are unaware of any. Indeed, the legal standard for Rule 54(d) costs

is whether they are reasonable and necessary to the litigation. See

Gallegos, ¶ 42.

¶ 9 Based on the unchallenged district court findings, the cost of

the appraisal report was reasonable and necessary to the litigation.

The appraisal report was a crucial piece of evidence and was

“integral” to one of the claims. It seems there was no reason for

Ciancio to commission the report before the dispute that led to the

litigation.

¶ 10 Under these circumstances, we fail to see how the mere timing

of the appraisal report rendered it unreasonable or unnecessary to

the litigation. Accordingly, we cannot say that awarding Ciancio the

cost of the report was manifestly arbitrary, unreasonable, or unfair.

¶ 11 We therefore conclude that the district court did not abuse its

discretion and reject defendants’ only argument on appeal.

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¶ 12 The order is affirmed.

JUDGE NAVARRO and JUDGE RICHMAN concur.