Opinion by
Plaintiffs, Kent Hytken; Future Residential, LLC; Hytken Partnership I, LLC; and Hytken Partnership, LLC, appeal from a trial court judgment dismissing their action against defendants, Daniel F. Wake; J.S. Horowitz; Krendl, Horowitz & Krendl}; Horowitz & Wake; James J. Peters; Christopher L. Tureson; Riggs, Abney, Neal, Tur-pen, Orbison & Lewis; and Vransec, Peters & McBride, P.C. Plaintiffs alsо appeal the order denying their motion for reconsideration. We affirm.
On December 29, 2000, plaintiffs, none of whom is a Colorado resident, filed legal malpractice and negligence actions against defendants, attorneys who had unsuсcessfully represented them in earlier litigation. However, plaintiffs did not file a cost bond as required by § 13-16-101, C.R.S8.2002.
Pursuant to § 13-16-102, C.R.8.2002, defendants moved to compel plaintiffs to post a cost bond in the amount of $90,000. In their response, plaintiffs acknowledged that a cost bond was required, but argued that a bond of $7,500 was adequate. On July 6, 2001, the trial court granted defendants' motion, set the amount of bond at $75,000, and ordered that it be posted within twenty days.
On July 25, 2001, plaintiffs moved for an extension of time to post the bond, alleging that they had been "diligently attempting" to obtain one. Defendants objected to the extension and moved for dismissal of the action pursuant to § 13-16-1022. The trial court granted plaintiffs an extension until August 25, 2001.
On August 24, 2001, plaintiffs moved for another extension, again alleging that they
On September 12, 2001, plaintiffs filed a third, untimely motion for an extension until September 17, 2001, alleging that they were "diligently attempting" to obtain a cost bond. Plaintiffs asserted that the bonding company advised them "at the 11th hour" that it could not issue a bond because it had a conflict of interest based on bonds it issued to one of the defendants in other cases. Defendants again opposed the extension and moved for dismissal pursuant to § 13-16-102. The trial court granted plaintiffs an еxtension to September 19, 2001.
This record does not indicate that the trial court considered or explicitly denied defendants' pending motions to dismiss pursuant to § 13-16-102.
On September 19, 2001, plaintiffs filed a fourth motion for an extension, again alleging that they were "diligently attempting" to obtain a bond and that a new bonding agency had approved the bond and was transmitting it to defendants. On September 20, 2001, the trial court denied plaintiffs request and dismissed the action.
On September 25, 2001, plaintiffs moved for reconsiderаtion of the dismissal, and they filed an employee's affidavit detailing the attempts to obtain a cost bond. The trial court denied the motion, and this appeal of the order of dismissal followed.
I.
Plaintiffs contend that the trial court erred in dismissing their aсtion for failure to file a cost bond because they did not "neglect or refuse" to do so, but rather were unable to obtain one. We disagree.
A.
No Colorado appellate decision has enunciated the standard for review of a dismissal under § 13-16-102 based on a plaintiff's neglect or refusal to file a cost bond. We hold that such dismissals are reviewed under an abuse of discretion standard.
An action brought by a nonresident plaintiff cannot proceed without the filing of a cost bond once a defendant moves to compel such a filing under § 1316-102. Cf. Neidhart v. Collins,
Factual determinations of a party's neglect or refusal generally are reviewed under a clear error or abuse of discretion standard. See Public Highway Authority v. 455 Co.,
B.
"Abuse of discretion" is a legal term reflecting the opinion of an appellate court that the trial court committed an error of law in the cireumstances. See Cook v. District Court,
As pertinent here, § 13-16-102 provides:
If [a civil} action [by a nonresident] is commenced without filing such instrumentof writing ... it is the duty of the court, on motion of the defendant or any officer of the court, ... to rule the plaintiff, on or before the day in such rule named, to give security for the payment of costs in such suit. If such plaintiff neglects or refuses, on or before the day in such rule named, to file such instrument, the court, on motion, shall dismiss the suit.
Plaintiffs contend that they neither neglected nor refused to file a cost bond, but were unable to do so, and therefore the case could not be dismissed. In support of this argument, plaintiffs cite Walcott v. District Court,
In Walcott, the trial court dismissed an indigent plaintiff's case for failure to post the mandatory cost bond. On appeal, the supreme court focused only on the plaintiff's inability to pay costs because of indigency, аn exception explicitly provided in § 13-16-103, C.R.S.2002. Thus, the supreme court's analysis was limited to those situations where a plaintiff's inability to file a cost bond stems from the plaintiff's indigency.
The supreme court also noted that "[i]f the General Assembly intended that failurе to file a cost bond, regardless of the reason, would mandate dismissal, it would not have predicated dismissal specifically on whether a 'plaintiff neglects or refuses' " Walcott v. District Court, supra,
Plaintiffs here agreed to file a cost bond, so the sole question before us is what constitutes "neglect" under § 13-16-102.
When interpreting a statute, an appellate court looks to its purposes, reading it as a whole and every word therein to construe its terms harmoniously. See Colorado Dept. of Labor & Employment v. Esser,
Under §§ 1816-101 and 18-16-102 the court has no discretion regarding the filing of a cost bond, and dismissal for failure to do sо is mandatory. See Edgar Gold & Silver Mining Co. v. Taylor,
Neglect is "a purely objective fact, that a person has not done that which it was his duty to do; it does not indicate the reason for this failure." Black's Law Dictionary 1055 (7th ed.1999). Therefore a nonresident plaintiff's multiple failures to file a cost bond as required by § 18-16-101 could constitute "neglect" as that term is used in § 13-16-102. Accordingly, the burden is on the plaintiff to file a cost bond, and failure to do so for any reason othеr than indigeney or a defendant's waiver mandates dismissal. To hold otherwise would read into the statutory scheme exceptions not provided by the legislature. See Slack v. Farmers Insurance Exchange,
Our conclusion finds additional suрport in Neidhart v. Collins, supra, which held that where a cost bond is not given, especially
Nor is our interpretation of the word "neglect" inconsistent with Walcott v. District Court, supra. Under our interpretation, failure to file a cost bond does not mandate dismissal if a nonresident plaintiff failed to file the bond because of indigency or if the defendant has waived the requirement. See § 13-16-103; Paytоn v. M. Spiesberger & Son Co., supra.
Here, plaintiffs failed to file a cost bond before instituting the suit, as required by § 18-16-101. At the time of the dismissal, almost nine months later, no cost bond had been filed. Defendants' repeated motions to dismiss for the failure to file a cost bond negate any suggestion of waiver.
Plaintiffs did not seek an exception from the cost bond requirement or suggest they were unable to comply with the requirement because of indigency; rather, plaintiffs continually assured 'the court that they would file a cost bоnd and insisted that there were mitigating cireumstances contributing to the delay. Nevertheless, plaintiffs missed both the third and the fourth extended deadlines without an explanation, pleading only mitigating circumstances.
There can be little doubt that, irrespective of the reason, plaintiffs did not fulfill their duty to file a cost bond by any of the many extended deadlines granted by the trial court. On this record, we conclude the trial court did not abuse its discretion by dismissing the case.
In their reply brief, plaintiffs argue that the dismissal violates C.R.C.P. 121 §§ 1-10 or 1-15 and that the trial court acted prematurely because defendants did not move to dismiss after the trial court denied the last request for an éxtension. However, neither argument was made to the trial court in the motion for reconsideration. We cannot address issues raised for the first time on appeal, Minto v. Lambert,
Having concluded that plaintiffs "neglected" to file a cost bond within the meaning of § 18-16-102, we need not decide whether they "refused" to do so.
IL
Plaintiffs also contend that the trial court abused its discretion by setting a high cost bond and dismissing the case without first holding an evidentiary hearing. We disagree.
The reasonableness of costs and their amount are matters within the sound discretion of the trial court, and we will not disturb that dеtermination on appeal absent an abuse of discretion. See Ballow v. PHICO Insurance Co.,
In setting the amount of the cost bond, the trial court explicitly took note of the complexity and breadth of the case, the amount of damages sought, the numerous factual bases allegedly supporting the claims, the long period over which the claims occurred, the large number of defendants, and the need for expert witnesses. Also, plaintiffs did not request a hearing on costs, and there was no statutory requirement that the court hold such a hearing. We therefore рerceive no abuse of discretion.
IIL
Plaintiffs contend that the trial court erred in denying their motion to reconsider the dismissal. We disagree.
A motion to reconsider is addressed to the sound discretion of the trial court. See Bowman v. Songer,
The judgment and order are affirmed.