In re Election of November 6, 1990 for the Office of Attorney General

577 N.E.2d 343, 62 Ohio St. 3d 1, 1991 Ohio LEXIS 2083
Ohio Supreme Court·Decided August 21, 1991·No. No. 90-2544·Published·Cited by 32 cases

Opinions

Moyer, C.J.

On March 11, 1991, we entered judgment for contestee, Lee I. Fisher, on contestor Paul E. Pfeifer’s petition contesting the results of the 1990 election for Ohio Attorney General. In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 58 Ohio St.3d 103, 569 N.E.2d 447. As the prevailing party, contestee has now filed a motion for costs, seeking reimbursement for various expenses, including attorney fees, that he incurred in opposing contestor’s petition. Contestor has opposed the motion for costs and has filed an application for return of the $10,000 bond he filed with his petition pursuant to R.C. 3515.09.

Contestee seeks costs pursuant to R.C. 3515.09, Civ.R. 54(D), and R.C. 2323.51. However, we agree with contestor’s argument that Civ.R. 54(D) and R.C. 2323.51 are not applicable to election contests. The procedures prescribed for election contests are specific and exclusive. State, ex rel. Daoust, v. Smith (1977), 52 Ohio St.2d 199, 200, 6 O.O.3d 457, 458, 371 N.E.2d 536, 537; Foraker v. Perry Twp. Rural School Dist. Bd. of Edn. (1935), 130 Ohio St. 243, 4 O.O. 264, 199 N.E. 74, paragraph two of the syllabus. Given the [2] exclusivity of the election contest procedures in R.C. 3515.08 et seq., we cannot afford relief except as provided therein.

We decline to adopt contestee’s contention that R.C. 3515.11 incorporates Civ.R. 54(D) and R.C. 2323.51 into election contest proceedings. R.C. 3515.11 states in part that “[t]he proceedings at the trial of the contest of an election shall be similar to those in judicial proceedings, in so far as practicable * * Although this provision incorporates into election contest proceedings some rules and statutes governing civil actions, such incorporation is limited to those rules and statutes that would pertain “at the trial of the contest.”

Prior orders in this contest have recognized the applicability of Civ.R. 41(B)(2) and 26(B)(3), each of which can be said to apply “at the trial of the contest.” Civ.R. 41(B)(2) provides for dismissal of a case after the plaintiff’s case-in-chief, clearly a procedure to be used “at * * * trial.” See In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 58 Ohio St.3d 604, 567 N.E.2d 984.

Civ.R. 26(B)(3) governs the discoverability of an opposing party’s work product. See In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 57 Ohio St.3d 614, 567 N.E.2d 243. Although it is apparent that the main purpose of Civ.R. 26(B)(3) is to govern pretrial discovery, the rule also had relevance to this “trial of the contest.” Since testimony in the trial of a contest in this court must be taken by deposition, see R.C. 3515.16, we may refer to those provisions of the Civil Rules pertinent to depositions, including Civ.R. 26(B)(3). See, also, Civ.R. 45(D)(1).

Unlike Civ.R. 41(B)(2) and 26(B)(3), Civ.R. 54(D) and R.C. 2323.51 do not set forth procedures that could be applied “at * * * trial” in this contest. Civ.R. 54(D) provides for an award of costs “to the prevailing party,” which assumes that any necessary trial to determine the “prevailing party” has previously been conducted. R.C. 2323.51 provides for an award of attorney fees to a party harmed by “frivolous conduct” in a civil action. Such an award, however, can be made only “at any time prior to the commencement of the trial in a civil action or within twenty-one days after the entry of judgment in a civil action.” R.C. 2323.51(B)(1). R.C. 2323.51 is not a procedure to be used at a trial. Since Civ.R. 54(D) and R.C. 2323.51 would not apply “at the trial of the contest,” R.C. 3515.11 does not incorporate their provisions into election contest proceedings. We lack statutory authority to apply Civ.R. 54(D) or R.C. 2323.51 to this election contest.

Contestee’s remaining basis for his motion for costs and attorney fees is R.C. 3515.09. That statute provides in pertinent part:

“Said [contest] petition shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as [3] determined by him, to pay all the costs of the contest. The contestor and the person whose right to the nomination or election to such office is being contested, to be known as the contestee, shall be liable to the officers and witnesses for the costs made by them respectively; but if the results of the nomination or election are confirmed or the petition is dismissed or the prosecution fails, judgment shall be rendered against the contestor for the costs; and if the judgment is against the contestee or if the results of the nomination or election are set aside, the county shall pay the costs as other election expenses are paid.”

Despite contestor’s arguments regarding the interpretation of R.C. 3515.09, we conclude that contestor is liable to the contestee for “all the costs of the contest.” The purpose of the statutory bond is to provide security for such costs. If the contestor were not liable for “all the costs of the contest,” there would be no reason for the statute to require that he post a bond securing such costs.

Furthermore, there is little doubt that the contestor may be held liable to the contestee. The statute specifically states that “judgment shall be rendered against the contestor for the costs.” As the other party to the contest, the contestee is the natural beneficiary of such a judgment. Inasmuch as the statute makes the contestee initially liable for certain costs attributable to “officers and witnesses,” a judgment against the contestor should at least shift those costs from the contestee to the contestor.

Contestee claims that a number of items are recoverable as part of “all the costs of the contest.” Those items include the following:

(1) attorney fees in defending against the contest petition and in complying with this court’s ballot security order;

(2) attorney travel expenses to attend depositions and to comply with the ballot security order;

(3) expenses to copy materials for submission to this court, contestor’s counsel, and others;

(4) expenses to deliver materials to this court, contestor’s counsel, and others;

(5) court reporter charges;

(6) videotape technician charges for attending, recording, editing, and filing two videotaped depositions;

(7) witnesses’ fees and mileage;

(8) computerized legal research expenses;

(9) expert witness fees; and

[4] (10) long distance telephone and facsimile transmission charges.

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In re Election of November 6, 1990 for the Office of Attorney General, 577 N.E.2d 343, 62 Ohio St. 3d 1, 1991 Ohio LEXIS 2083 (Ohio 1991).

577 N.E.2d 343 (In re Election of November 6, 1990 for the Office of Attorney General) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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