Chapter 19 - § 19.5 • COST BONDS AND JUDGMENT BONDS

• Jurisdiction: Colorado

§ 19.5 • COST BONDS AND JUDGMENT BONDS

Colorado's appellate courts have held that rules and statutes requiring the payment of cost bonds to appeal may be waived for in forma pauperis litigants. Thus, in In re Marriage of Delahoussaye, 924 P.2d 1210 (Colo. App. 1996), a division of the court of appeals held that an indigent litigant is entitled to appeal without filing the cost bond required by C.A.R. 7. That decision followed Bell v. Simpson, 918 P.2d 1123 (Colo. 1996), in which the Colorado Supreme Court held that C.R.C.P. 411(a), which requires the filing of a cost bond for an appeal from county court to district court, is not applicable to indigent parties. In Bell, the supreme court ruled that C.R.S. § 13-16-103(1) is expressly applicable to all courts in Colorado, including appellate courts. The court also noted that C.A.R. 12(b) does not require an in forma pauperis litigant to post a cost bond when pursuing an appeal from district court to the court of appeals. See also Rodden v. Colo. State Penitentiary, 52 P.3d 223 (Colo. 2002).

In Walcott v. Dist. Court, 924 P.2d 163 (Colo. 1996), the Colorado Supreme Court held that the filing of a cost bond otherwise required of non-resident litigants by C.R.S. §§ 13-16-101 and -102 could be waived for indigent litigants. In so holding, the supreme court overruled a prior contrary holding by a division of the Colorado Court of Appeals. In Walcott, the supreme court disapproved of Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994). The Walcott court stated that C.R.S. § 13-16-103 applies to both residents and non-residents. See also Hytken v. Wake, 68 P.3d 508 (Colo. App. 2002) (whether plaintiff's delay in filing a cost bond is the result of neglect or refusal is reviewed under abuse of discretion standard); Munoz-Hoyos v. de Cortez, 207 P.3d 951 (Colo. App. 2009) (plaintiff's non-citizen status alone does not preclude the plaintiff from qualifying as a resident for purposes of § 13-16-101, and the plaintiff may not be required to post a cost bond on the basis that he or she is not a citizen).

In O'Donnell v. State Farm Mut. Auto. Ins. Co., 186 P.3d 46, 49 (Colo. 2008), the Colorado Supreme Court relied on Bell, 918 P.2d 1123, to hold that a county court party found to be indigent and allowed to proceed in forma pauperis is not required to post a judgment bond before appealing to the district court. Nevertheless, the court ruled that as with appeals from the district court to the court of appeals, the prevailing...