Bookatz v. KuppsBookatz v. Kupps
Plаintiff-appellant, Sarah Bookatz, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion to tax costs of defendant-appellee, Viсtor L. Kupps.
On October 5, 1981, the appellant filed a complaint grounded in medical malpractice against the appellee, a licensed podiatrist. The complaint alleged that the appellee, while cutting and trimming the appellant’s toenails, removed a callus from the appellant’s large left toe without her knowledge or consent. The removal of said callus allegedly resulted in the formation of an ulcer upon the appellant’s large left toe. The appellant thus incurred medical expenses and wage losses as a consequence of the formation of said ulcer.
Upon referral of the appellant’s claim of malpractice to medical malpractice arbitration pursuant to Loe. R. 37 of the Court of Common Pleas of Cuyahoga County, General Division, an award and finding were rendered for the appellee on May 31, 1984. On June 13, 1984, the appellant filed a notice of non-acceptance of the report and award of the arbitration panel and thereafter the cause of action was set for trial.
On October 17, 1986, aftеr a trial before a jury, a verdict was returned for the appellee. No appeal was taken by the appellant from said defense verdict. Thereafter, on Decembеr 19, 1986, the appellee filed a motion with the trial court to tax “certain expenses” as costs. The appellee requested the trial court to tax as costs the following expenses:
*37 1. The court reporter’s charge for the deposition of Victor L. Kupps (appellee).$123.75
2. The court reporter’s charge for the deposition of Paula McGreehan. 29.00
3. The court reporter’s charge for the deposition of Sarah Bookatz (appellant). 249.60
4. The court reporter’s charge for the deposition of Dr. Kassen. 176.60
5. The court reporter’s charge for the deposition of Dr.Lidsky. 143.60
6. The fees of the arbitrator paid by Victor L. Kupps (appellee). 250.00
7A. The court reporter’s charge for the deposition of Dr. Miller . 126.50
7B. The travel expense of appellee’s counsel for the deposition of Dr. Miller in New Jersey. 558.95
8A. The court reporter’s charge for the deposition of Dr. Hayes. 689.80
8B. The fee charged by Dr. Hayes to the appellee for giving his discovery deposition. 562.50
The trial court, on February 5, 1987, partially granted the appellee’s motion to tax costs and entered an оrder as follows:
“Motion To Tax Certain Costs Is Gtd. Items 1-2-3-4-5-7A-8A Are Taxed As Costs. Total Equals 1533.85 [sic, $1,538.85]. So Ordered.”
Thereafter, the appellant brought this appeal.
The appellant’s sole assignment of error is that:
“The trial court erred in granting defendant’s post-judgment ‘motion to tax certain costs.’ ”
However, said assignment of error raises two separate issues for review. Said issues are:
1. whether the appellee’s motion to tax certain costs was timely made; and
2. whether the expenses ordеred taxed as costs by the trial court were items which were properly taxable.
The appellant initially argues that the appellee’s motion to tax costs was not filed in a timely fashion and therefore is barred by the doctrine of laches. Specifically, the appellant argues that the motion to tax costs ■ must have been filed prior to the entry of final judgment by the trial court whereas the appellee did not file his motion to tax until two months after the defense verdict was returned by the jury.
Appellant relies upon the cases of
Weis
v.
Weis
(C.P. 1909), 7 Ohio Law Rptr. 385, and
Phelps
v.
Trustees of Berlin Twp.
(App. 1939),
“Costs. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prеvailing party unless the court otherwise directs.”
*38
A review of
In the case sub judice, the appellee filed his motion to tax costs two months after the defense verdict and one month after the appellant’s time for appeal had run. The appellee did file his motion to tax costs within a “reasonable” period of time and therefore the doctrine of laches did not affect the aрpellee’s motion to tax costs.
The appellant’s second argument involves whether the expenses ordered taxed as costs were expenses which could be taxed.
A review of the seven expenses ordered taxed as costs by the trial court reveals the following:
1. The court reporter’s charge for the deposition of Victor L. Kupps (apрellee). $123.75
2. The court reporter’s charge for the deposition of Paula McGreehan. 29.00
3. The court reporter’s charge for the deposition of Sarah Bookatz (apрellant). 249.60
4. The court reporter’s charge for the deposition of Dr. Kassen. 176.60
5. The court reporter’s charge for the deposition of Dr. Lidsky . 143.60
7A. The court reporter’s charge for the dеposition of Dr. Miller . 126.50
8A. The court reporter’s charge for the deposition of Dr. Hayes. 689,80
TOTAL $1,538.85
This court, in
Jones
v.
Pierson
(1981),
“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 expеnse 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 оf the rule reveals, however, its clear meaning: that all litigating expenses will ordinarily be allowed to the prevailing party as costs. See Staff Note toCiv. 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. Thus, the court’s discretion to disallow сosts is limited to overruling a motion to tax a litigating expense only where such expense is an unusual expense in type or amount which because of the prevailing party’s conduct it is inequitable to assess against the non-prevailing party.”
*39 In addition, subsequent Ohio case law has established that the taking of depositions is good legal practice and is essential to the preparation for trial. The denial of the expense of said depositions as costs, where neither unusual nor unreasonable, is an abuse of discretion on the part of the trial сourt.
“A determination of whether or not an expense will be allowed as a taxable cost under
“Much of the funds exрended by a party are necessary and vital to the litigation and must be characterized as a taxable litigating expense which will normally be awarded as costs to the prevailing рarty pursuant to
“A trial court’s discretion to disallow costs is limited to refusing to tax a litigating expense as a cost only where such expense is an unusual expense in type or amount which because of the prevailing party’s conduct it is inequitable to assess against the non-prevailing party.
“There was no indiсation by the trial court that the cost of taking the two defendants’ depositions was an unusual expense. The amount assessed was reasonable.
“
A review of the case sub judice reveals that the depositions taken by the appellee were not unusual expenses in type or amount. In addition, the taking of said deрositions was good legal practice and was essential to the preparation for trial. Thus, the trial court did not abuse its discretion in taxing as costs the hereinabove cited deposition expenses.
Therefore, the appellant’s assignment of error is not well-taken.
Judgment affirmed.
Saul G. Stillman, J., retired, of the Eighth Appellate District; Fred J. Shoemaker, J., retired, of the Franklin County Court of Common Pleas; and Paul H. Mitrovich, J., of the Lake County Court of Common Pleas, sitting by assignment in the Eighth Appellate District.