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Meier v. McCoy12/30/2004
ct only with regard to the elements of the state law claims and punitive damages related to those claims, we conclude that the allegations of willful and wanton conduct supported only those claims and that relief. Cf. Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 969 P.2d 812, 814 (Colo. App. 1998)(award of attorney fees vacated where assertions of willful and wanton conduct were stated in support of §§ 1983 and 1988 claims).
Therefore, we conclude that it was not necessary for plaintiff to allege state claims or willful and wanton conduct to state a cognizable claim under § 1983 and that the allegations of willful and wanton conduct did not support his federal claim.
Still further, we conclude that § 1988 may be applied to plaintiff's § 1983 claim and that § 24-10-110(5)(c) may be simultaneously applied to plaintiff's common law claims without disrupting the federal statute. See Haynes v. City of Gunnison, 214 F. Supp. 2d 1119 (D. Colo. 2002); Goodwin v. Debekker, 807 F. Supp. 101 (D. Colo. 1992)(§ 24-10-110(5)(c) not applicable to federal claims litigated in federal court).
Neither party asked for a hearing regarding attorney fees, and plaintiff did not object to the reasonableness of the fees, which totaled $140,207.70. In addition, the court carefully allocated the fees and found that "nearly all, if not all, of the witnesses and exhibits presented would have been the same even if the § 1983 claim had not been included."
Thus, we perceive no error in the award of attorney fees.
V.
Last, plaintiff argues that because the court entered its order on costs outside of the sixty-day requirement of C.R.C.P. 59, the order is void. We disagree.
C.R.C.P. 59 provides that the court must determine any post-trial motion within sixty days of the date of filing of the motion, and any post-trial motion that has not been decided within that time shall be deemed denied. However, a motion for costs is not a motion for post-trial relief and, therefore, is not governed by C.R.C.P. 59. See Baldwin v. Bright Mortgage Co., 757 P.2d 1072 (Colo. 1988). Instead, it is governed by C.R.C.P. 54.
The judgment is affirmed.
JUDGE ROTHENBERG and JUDGE CASEBOLT concur.
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