Jones v. Pierson

442 N.E.2d 791, 2 Ohio App. 3d 447, 2 Ohio B. 542, 1981 Ohio App. LEXIS 9997
CourtOhio Court of Appeals
DecidedAugust 6, 1981
Docket42309
StatusPublished
Cited by47 cases

This text of 442 N.E.2d 791 (Jones v. Pierson) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Pierson, 442 N.E.2d 791, 2 Ohio App. 3d 447, 2 Ohio B. 542, 1981 Ohio App. LEXIS 9997 (Ohio Ct. App. 1981).

Opinions

Krenzler, C.J.

Callie Jones, appellant herein, filed a complaint in the Cleveland Municipal Court alleging that appellee Lawrence Pierson, d.b.a. T & L Body & Fender Shop, was liable to her in damages for the negligent repair of her automobile. The case was tried before a jury, which found for appellant in the amount of $725. On February 1,1980, the court entered judgment for appellant for “$725.00 and costs of this action.”

On February 8,1980, appellant filed a “Motion for Bill of Costs” which sought to have taxed as costs the expense of a private court reporter’s attendance at trial and the expenses of recording and transcribing two depositions used for impeachment purposes during trial. The court overruled appellant’s motion to tax these expenses as costs on May 7, 1980, and appellant timely appealed this order, which is the subject of the instant appeal.

Appellant has set forth three assignments of error for our consideration:

“I. The trial court’s denial of plaintiff’s bill of costs was an abuse of discretion.
“II. The trial court improperly refused to tax the cost of a court reporter against defendant, the non-prevailing party.
“HI. The trial court improperly refused to tax the cost of depositions which were used at trial against defendant.”

Appellant’s first assignment of error is interrelated to the second and third assignments and shall be discussed in conjunction with the latter.

Appellant’s second assignment of error asserts that the court erred in not awarding to her, as the prevailing party, • the cost of a court reporter’s attendance at trial. At issue here is whether this expenditure is a taxable cost pursuant to' Civ. R. 54(D), which provides that “[e]xcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs.” (Emphasis added.)

We recognize at the outset that Civ. R. 54(D) represents a codification of an existent trend to broaden the scope of what constitutes an awardable cost. Originally, Ohio courts limited taxable costs to expenses specifically designated as such by statute, generally limited, therefore, to “* * * the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution * * *.” State, ex rel. Commissioners, v. Guilbert (1907), 77 Ohio St. 333, 338. See, e.g., Benda v. Fana (1967), 10 Ohio St. 2d 259 [39 O.O.2d 410]; Euclid v. Vogelin (1950), 152 Ohio St. 538 [41 O.O. 85]; Smith v. Smith. (1952), 93 Ohio App. 294 [51 O.O. 45], More recently, however, the decisions evidence a willingness of the courts to allow a prevailing party to recover some expenses outside this traditional meaning of “costs.” See, e.g., Barrett v. Singer Co. (1979), 60 Ohio St. 2d 7 [14 O.O.3d 122]; Terry v. Burger (1966), 6 Ohio App. 2d 53 [35 O.O.2d 156]; Thornton v. Mid America Finance & Loan Co. (1964), 8 Ohio App. 2d 229 [29 O.O.2d 312]; Welter v. Welter (Cuyahoga C. P. 1971), 27 Ohio Misc. 44 [55 O.O.2d 302], Thus, as noted in the Staff Note to Civ. R. 54(D), the rule allows a court to exercise some discretion in determining that a particular expense will be taxed as a cost, “* * * placing] ultimate responsibility for the assessment of costs upon the court, he [is] to exercise his discretion unless a particular statute provides for specific assessment of particular costs.” (Emphasis added.)

While a court may now award both statutory and non-statutory expenses as *449 costs, there are differing mechanisms for the actual recovery of such costs by the prevailing party. Costs recognized by statute are self-executing; that is, they are routinely recorded as taxable items upon a cost sheet maintained by the clerk of courts, and automatically carried into the judgment of the prevailing party by the clerk. See White v. White (1977), 50 Ohio App. 2d 263, 269 [4 O.O.3d 225], at fn. 1. In contrast, any other items which the prevailing party desires to recover as costs may only be obtained by means of a formal motion to the court to tax such expenses as costs. For non-statutory costs, absent a motion to tax as costs, there exists no duty of the court, the clerk of court, or the non-prevailing party to effectuate the recovery of such sums expended by the prevailing party.

In the instant case, appellant properly filed her motion to tax the contested expenses as costs. Therefore, the issue herein presented is whether the items for which she seeks to recover her expenses are properly taxable as costs against ap-pellee.

A determination of whether or not an expense will be allowed as a taxable cost under Civ. R. 54(D) requires a two-step analysis by the court to which a motion to tax as costs has been addressed. The first step of the inquiry is to determine whether an expense is an item properly taxable as a cost; this is followed by a decision as to whether the cost should be taxable in the particular case at bar.

Ohio has long recognized that there exists a difference, for the purpose of awarding costs, between personal expenditures outlaid during litigation and litigating expenses. Personal expenses, which are not taxable as costs, are those expenses expended by a party in preparing a case for trial. Pope v. Pollock (1889), 46 Ohio St. 367. On the other hand, necessary litigating expenses are taxable costs pursuant to Civ. R. 54(D); that is, as much of the funds expended by a party as are necessary and vital to the litigation must be characterized as taxable costs which will normally be awarded to the prevailing party.

In ruling upon a motion to'tax an expense as a cost, therefore, a court must first determine whether the item is - a necessary litigating expense. In making this determination, the focus of the inquiry is whether an itemized expense, not declared taxable by statute, was so vital to the case that it may no longer be viewed as a mere personal expense but must be characterized as a necessary litigating expense.

The second step of the court’s determination of taxability is to decide whether a litigating expense will be awarded as a cost. Upon first consideration, Civ. R. 54(D) appears to contain an inconsistency, as it states that “* * * costs shall be allowed to the prevailing party unless the court otherwise directs.” (Emphasis added.) A review of the rule reveals, however, its clear meaning: that all litigating expenses will ordinarily be allowed to the prevailing party as costs. See Staff Note to Civ. R. 54(D). While a court does have some discretion to refuse to allow as costs litigating expenses not required to be taxed by statute, Civ. R. 54(D) mandates that in most cases all litigating expenses shall be awarded as costs to the prevailing party.

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Bluebook (online)
442 N.E.2d 791, 2 Ohio App. 3d 447, 2 Ohio B. 542, 1981 Ohio App. LEXIS 9997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-pierson-ohioctapp-1981.