Vassil v. Able Fence Guard Rail, Inc.

Citations: 611 N.E.2d 919; 81 Ohio App. 3d 533; 1992 Ohio App. LEXIS 3260Docket: No. 60757.

Court: Ohio Court of Appeals; June 29, 1992; Ohio; State Appellate Court

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Able Fence and Guard Rail, Inc. appeals a Cuyahoga County Court of Common Pleas judgment that partially granted Sonja Vassil's motion to tax costs and denied it in part. Vassil, the plaintiff, had filed a negligence suit against Able in 1987, resulting in a jury verdict in her favor in July 1990. Following the verdict, she sought to recover necessary litigation expenses totaling approximately $27,000, including costs for depositions, expert witness fees, and exhibits. The trial court approved costs for the depositions of lay and expert witnesses but denied the remaining expenses.

In its appeal, Able argues that the trial court exceeded its authority under Ohio Civil Rule 54(D), which allows costs to be taxed only if authorized by statute. Historically, Ohio courts have limited taxable costs to those expressly provided by law, as established in cases like State ex rel. Commrs. of Franklin Cty. v. Guilbert and Euclid v. Vogelin. However, recent rulings indicate a broader interpretation, permitting certain expenses, like deposition costs, to be included if used at trial.

Vassil justified the need for extensive depositions, citing the lack of personal knowledge regarding the accident's details and the necessity of deposing multiple witnesses, including police officers and employees of Able, to establish facts pertinent to her case. One deposition was particularly crucial as it was read to the jury due to the witness's death before trial.

Mr. Zadorosny's depositions were essential for the plaintiff's cross-examination, categorizing the associated costs as 'necessary litigating expenses.' The plaintiff provided an affidavit detailing the expenses, which totaled $3,753.90 for various depositions and related services. Furthermore, the plaintiff incurred significant costs deposing the defendant's seven expert witnesses, deemed necessary for trial preparation, with a total of $11,685.80 for these depositions, including travel expenses for two depositions in New Hampshire and Texas. The depositions effectively undermined the defendant's case, as none of the liability experts identified by the defendant were called at trial due to the plaintiff's successful depositions. The affidavit includes invoices for all related expenses. The document references a precedent (Jones v. Pierson) affirming that necessary litigation costs are typically awarded to the prevailing party under Civ. R. 54(D).

A trial court's ability to deny costs is confined to situations where the expense is unusual in type or amount, and where assessing it against the non-prevailing party would be inequitable due to the conduct of the prevailing party. The case of Jones illustrates a trend in case law that permits a prevailing party to recover certain expenses beyond traditional court costs; however, it does not endorse a blanket approach where all expenses incurred during trial are automatically taxed as costs. The court remains unconvinced by the appellant’s argument that the interpretation of Civ.R. 54(D) in Jones should be overturned. The court maintains that all litigating expenses are typically allowed as costs for the prevailing party, aligning with Civ.R. 54(D) and its Staff Note. Trial courts possess discretion to classify and assess litigating costs, but this discretion must align with established statutes and case law. The court clarifies that merely claiming an expense is necessary does not guarantee it will be taxed as a cost; each expense must be evaluated within the context of the specific case. The principles established in Jones do not create a rigid rule but acknowledge that taxing all expenses may be appropriate in some cases while in others, no expenses may be taxable. In relation to deposition expenses, the Ohio Supreme Court ruled in Fairchild that costs for depositions not used at trial cannot be taxed. The ruling indicates that the determination of "use" for depositions is critical, with case law suggesting that deposition expenses can be included in costs only if the depositions were utilized during the trial.

The Ohio Supreme Court held that deposition expenses can only be taxed as costs if the depositions are used as evidence at trial, unless overriding considerations warrant otherwise. In Moore v. General Motors Corp., it was established that generally, a plaintiff cannot recover deposition costs if the depositions are not introduced in evidence. In the current case, the depositions were not admitted but used solely for trial preparation, leading to the conclusion that taxing these expenses as costs was inconsistent with prior rulings. The court found no overriding reasons to allow such taxation.

Additionally, the court agreed with the appellant that expert witness fees and travel expenses should not be awarded as costs due to the lack of statutory authority. The Ohio Supreme Court's interpretation emphasizes that expert fees are not recoverable unless extreme circumstances arise, which was not the case here, as the expert depositions were also not introduced into evidence.

The appellant's assignment of error was sustained, reversing the trial court's decision that allowed the recovery of these expenses as costs. In a cross-appeal, the appellee argued that the trial court improperly denied costs for exhibits admitted into evidence. The appellee sought to recover specific expenses for exhibits that were relevant and material, totaling $9,031.39, asserting that these should be taxed as necessary litigating expenses. The court acknowledged the relevance of the admitted exhibits and indicated that these costs should be assessed against the defendant.

Plaintiff incurred expenses for exhibits used at trial that were not admitted into evidence, totaling $2,762.37. These expenses included transportation of the accident vehicle, a visual bar graph, and photographic blow-ups. While these materials were integral to the plaintiff's case, the court emphasized that costs under Civ.R. 54(D) should not supplement actual damages or be used to unjustly enrich a prevailing party. The ruling asserts that such costs should not include routine litigation expenses, like salaries of support staff, as this would constitute an abuse of the rule. Consequently, the trial court's decision to grant certain litigation costs was reversed, while the denial of the remaining costs was affirmed. The judgment was agreed upon by Spellacy, J., with John F. Corrigan, P.J., concurring in judgment only. It is noted that the depositions were conducted by the defendant.