Chambers v. Chambers

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[Cite as Chambers v. Chambers, 2003-Ohio-7341.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY LARRY W. CHAMBERS, ET AL, : : Plaintiffs-Appellants, : Case No. 02CA38 : v. : : RHONDA S. CHAMBERS, : DECISION AND JUDGMENT ENTRY : Defendant-Appellee. : RELEASED 12/30/03 ________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANTS: D. Scott Bowling LAMBERT, MCWHORTER & BOWLING CO., L.P.A. 215 South Fourth Street P.O. Box 725 Ironton, Ohio 45638 COUNSEL FOR APPELLEE: John R. Haas RUGGIERO & HAAS 600 National City Bank P.O. Box 150 Portsmouth, Ohio 45662 _____________________________________________________________________ EVANS, P.J. {¶1} Plaintiffs-Appellants Larry W. Chambers and Brenda Chambers appeal the judgment of the Lawrence County Court of Common Pleas, which denied their request for reimbursement of costs associated with the taking of two depositions. Appellants assert that the expense of the depositions of two medical experts should have been included as costs and reimbursed to them. Accordingly, appellants conclude that 2 Lawrence App. No. 02CA38 the trial court erred by not awarding them the cost of the two depositions. {¶2} For the following reasons, we disagree and affirm the judgment of the trial court. Lower Court Proceedings {¶3} Chambers On May 13, 2000, Plaintiffs-Appellants Larry W. and Brenda were passengers in a vehicle Defendant-Appellee Rhonda S. Chambers. driven by their daughter Due to Rhonda's failure to control the vehicle, the vehicle left the roadway and rolled over. Appellants were both injured as a result of the accident. {¶4} In October 2001, Larry and Brenda filed a complaint against Rhonda and her insurance company asserting that Rhonda was negligent in her operation of the vehicle. Rhonda admitted liability for Larry and Brenda's injuries, but denied the extent of the injuries claimed by her parents. {¶5} 2002. A jury trial was held on the issue of damages in September At trial, appellants presented the testimony of two medical experts, Dr. D.J. Carey and Dr. Panos Ignatiadis. Dr. Carey's testimony was presented at trial by way of his deposition being read into the record. deposition. Dr. Ignatiadis testified by way of a videotape The jury returned a verdict in favor of appellants, entering judgment in favor of Larry and Brenda, awarding them $15,000 and $10,000 respectively. 3 Lawrence App. No. 02CA38 {¶6} Subsequently, appellants filed a motion for costs, seeking reimbursement for the following expenses and amounts: (1) $200 - filing fee; (2) $362.40 - transcript of Dr. Carey's deposition testimony; (3) $154 - videotape of Dr. Ignatiadis' deposition testimony; and (4) $292.05 - transcript of Dr. Ignatiadis' deposition testimony. that The trial court ruled on appellants' motion and ordered appellee reimburse appellants $354 videotape of Dr. Ignatiadis' testimony. for the filing fee and However, the trial court found that the $362.40 for Dr. Carey's transcript, which was read into the record at trial, and the $292.05 for the transcript of Dr. Ignatiadis' deposition testimony were not reimbursable as costs. The Appeal {¶7} them Appellants appeal the decision of the trial court denying reimbursement for the remaining expenses following assignment of error for our review: and present the "The trial court erred in failing to reimburse plaintiffs for the costs of transcripts used in plaintiffs' case-in-chief at trial." {¶8} At the outset, we note that reimbursement for expert witness fees. fees are not taxable as costs. appellants are not seeking Generally, expert witness See Beal v. State Farm Ins. Co. (1999) 132 Ohio App.3d 203, 724 N.E.2d 860; Coleman v. Jagniszcak (1995) 104 Ohio App.3d 413, 662 N.E.2d 91. Rather, appellants are 4 Lawrence App. No. 02CA38 seeking reimbursement for payments made to the court reporters for the production of transcripts of the doctors' depositions. {¶9} Civ.R. 54(D) provides: "Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed directs." to the This prevailing rule grants party the unless trial the court court broad otherwise discretion to assess costs, and the court's ruling will not be reversed absent an abuse of that discretion. See Vance v. Roedersheimer, 64 Ohio St.3d 552, 555, 1992-0hio-24, 597 N.E.2d 153; Gnepper v. Beegle (1992), 84 Ohio App.3d 259, 263, 616 N.E.2d 960. Therefore, to successfully appeal the taxing of costs, an appellant must demonstrate that a trial court's determination that an expense is or is not a "cost" within the meaning of Civ.R. 54(D) was arbitrary, unreasonable, or unconscionable. See Howard v. Wills (1991), 77 Ohio App.3d 133, 137, 601 N.E.2d 515. {¶10} The are limited. categories See of litigation Centennial Ins. expenses Co. v. comprising Liberty (1982), 69 Ohio St.2d 50, 430 N.E.2d 925. Mut. "costs" Ins. Co. "Costs are generally defined as the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statutes authorize (Emphasis added.) to be taxed and included in the judgment." Benda v. Fana (1967), 10 Ohio St.2d 259, 227 N.E.2d 197, paragraph one of the syllabus. "The subject of costs is one entirely of statutory allowance and control." State ex rel. 5 Lawrence App. No. 02CA38 Michaels v. Morse (1956), 165 Ohio St. 599, 607, 138 N.E.2d 660, reaffirmed in Vance, supra. {¶11} In Keaton v. Pike Community Hosp. (1997), 124 Ohio App.3d 153, 705 N.E.2d 734, this Court noted that "Ohio courts [have] disagree[d] as to whether a statutory basis for taxing deposition costs exists." Id. at 156. We further noted that "In applying Vance to deposition cost disputes, the Eighth Appellate District simply [held] that 'since there is no statutory authorization for taxing deposition costs, a court may not properly make such an award under Civ.R. 54(D).'" Id. (citing Carr v. Lunney (1995), 104 Ohio App.3d 139, 142, 661 N.E.2d 246; Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 624 N.E.2d 772). {¶12} In contrast, we also noted that "the First and Tenth Appellate Districts cite R.C. 2319.271 as the statutory basis for taxing court reporter and transcript fees from a deposition as costs under Civ.R. 54(D)." Keaton at 156, citing Haller v. Borror (1995), 107 Ohio App.3d 432, 438-439, 669 N.E.2d 17 (citing In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 62 Ohio St.3d 1, 4, 577 N.E.2d 343 and Miller v. Gustus (1993), 90 1 R.C. 2319.27 states, "The person taking and certifying a deposition may retain the deposition until the fees and expenses that he charged are paid. He also shall tax the costs, if any, of a sheriff or other officer who serves any process in connection with the taking of a deposition and the fees of the witnesses, and, if directed by a person entitled to those costs or fees, may retain the deposition until those costs or fees are paid." 6 Lawrence App. No. 02CA38 Ohio App.3d 622, 625, 630 N.E.2d 68; Cincinnati ex rel. Simons v. Cincinnati (1993), 86 Ohio App.3d 258, 267, 620 N.E.2d 940). {¶13} In Keaton, we further noted that "[c]ourts adopting the position that deposition expenses are costs pursuant to R.C. 2319.27 nonetheless limit the right to recover deposition expenses Civ.R. 54(D) by requiring some 'use' of the deposition. used only for discovery or impeachment, evidence, generally are not taxable." but not under Depositions admitted into Keaton at 157 (citing Barrett v. Singer (1979), 60 Ohio St.2d 7, 8-9, 396 N.E.2d 218; Miller v. Gustus, 90 Ohio App.3d 622, 624-625, 630 N.E.2d 68). proceeded to adopt the position that a trial court discretion, tax deposition expenses as court costs. This Court may, in its See id. {¶14} However, the Supreme Court of Ohio subsequently held in Williamson v. Ameritech Corp., 81 Ohio St.3d 342, 343-344, 1998-Ohio347, 1998-0hio-625, 691 N.E.2d 288, that, "R.C. 2319.27 does not provide a statutory basis for taxing the services of a court reporter at a deposition as costs under Civ.R. 54(D)." so holding, the Supreme Court of Ohio Id. at syllabus. reasoned that while In R.C. 2319.27 satisfies the court's first requirement in Benda (i.e., that costs be "statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action"), nothing in the statute satisfies the statutory authorization judgment. Id. at 344. second to tax requirement and include of Benda that deposition requires costs in a 7 Lawrence App. No. 02CA38 {¶15} The Supreme Court of Ohio further explained that its decision in In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 62 Ohio St.3d 1, had been misapplied to other cases not involving an election challenge or R.C. 3515.09, which the court construed as statutory authorization to award court reporter deposition fees to the prevailing party as costs in election contests. The court concluded that in Williamson, unlike In re Election, there is no statute authorizing the deposition expenses to be taxed and included in the judgment. {¶16} This Court's decision in Keaton relied on the analysis specifically rejected by the Supreme Court of Ohio in Williamson. Appellants, however, assert that Williamson is distinguishable from the case sub judice. Appellants have directed this Court's attention to the Second District's decision in Raab v. Wenrich, 2nd Dist. No. 19066, 2002-0hio-936. {¶17} In motion for Raab, costs, the trial which court included denied the the expenses prevailing she party's incurred in videotaping the deposition of her expert witness and in preparing a written transcript of the witness' testimony. On appeal, the Second District noted that Sup.R. 13(D)(2) provides for the inclusion as a part of costs under Civ.R. 54 the expenses associated with recording 8 Lawrence App. No. 02CA38 testimony on videotape and displaying that videotape at trial.2 In regard to the transcript of the expert's testimony, the Raab Court relied on a local rule requiring the presentation of such a transcript to find that it was a reimbursable cost. {¶18} In the case sub judice, there is no local rule requiring the filing of a transcript of the videotape testimony. we are not convinced by appellants' attempts to Furthermore, distinguish the present case from Williams based on the fact that the depositions in Williams trial. were taken only for discovery purposes and not used at Based on our reading of the Supreme Court of Ohio's decision in Williams we find irrelevant, for purposes of determining "costs" under Civ.R. 54, whether a deposition has been "used" at trial. {¶19} Accordingly, absent some form of statutory authorization for the taxation of deposition fees as costs, expenses associated with the taking depositions are of not depositions and reimbursable creating pursuant transcripts to Civ.R. of those 54. See Williams, supra, citing Benda v. Fana, 10 Ohio St.2d 259, 227 N.E.2d 197, paragraph one of the syllabus. Furthermore, to the extent that this Court's decision in Keaton conflicts with the Supreme Court of Ohio's holding in Williams, it is overruled. {¶20} Therefore, the trial court did not abuse its discretion in denying 2 appellants' motion for costs as it pertained to the two We note that the trial court relied on Sup.R. 13(D)(2) for including the expense 9 Lawrence App. No. 02CA38 depositions. Appellants' assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. Abele, J.: Kline, J.: Concurs in Judgment and Opinion. Concurs in Judgment Only. FOR THE COURT BY:_______________________________ David T. Evans Presiding Judge of Dr. Ignatiadis' videotape testimony as a part of costs.

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