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
1 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).
6 ¶ 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.
7 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.
8 ¶ 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
9 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.
12 ¶ 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.
¶ 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.
20 ¶ 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.