Naples v. KinczelNaples v. Kinczel
JOURNAL ENTRY AND OPINION
{¶ 2} Naples brought this action against appellee Barbara Jean Kinczel as a result of a motor vehicle accident that occurred on July 5, 2001. Following a jury trial, a verdict was rendered in favor of Naples in the amount of $8,500. Thereafter, Naples filed a motion for prejudgment interest, as well as a motion to tax litigation expenses as costs. Both motions were denied by the trial court. Naples timely appealed the trial court‘s denial of his motion to tax litigation expenses as costs. His sole assignment of error states as follows: “The trial court erred and/or abused its discretion in denying appellant‘s motion to tax necessary litigation expenses as costs following the entry of a jury verdict in his favor.”
{¶ 3} Motions to assess costs are governed by
{¶ 4} Although a trial court has such discretion, it should be recognized that the staff notes to the rule indicate that “ordinarily, under the rule costs will be allowed by the court to the prevailing party.”1 We also recognize that
”In an early analysis of Rule 54(d), this court stated that the rule was intended to take care of a situation where, although a litigant was the successful party, it would be inequitable under all the circumstances in the case to put the burden of costs upon the losing party. We have described several circumstances in which a denial of costs is a proper exercise of discretion under the rule.
Such circumstances include cases where taxable expenditures by the prevailing party are `unnecessary or unreasonably large,’ cases where the prevailing party should be penalized for unnecessarily prolonging trial or for injecting unmeritorious issues, cases where the prevailing party‘s recovery is so insignificant that the judgment amounts to a victory for the defendant, and cases that are `close and difficult.’ “This court has also identified factors that a district court should ignore when determining whether to exercise its discretion and deny costs. Examples of inappropriate factors include the size of a successful litigant‘s recovery, and the ability of the prevailing party to pay his or her costs. Other courts have identified factors that may be considered but, in the absence of other relevant factors, do not warrant an exercise of discretion under Rule 54(d). An example of a relevant but insufficient basis for denying costs is the good faith a losing party demonstrates in filing, prosecuting or defending an action. Another is the propriety with which the losing party conducts the litigation.”
White White, Inc. v. American Hospital Supply Corp. (C.A. 6, 1986), 786 F.2d 728, 730 (internal quotations and citations omitted).
{¶ 5} We see no reason why the Sixth Circuit‘s interpretation of
{¶ 6} We also recognize that in seeking costs under
{¶ 7} In this case, Naples sought to have certain litigation expenses taxed as costs. The trial court denied Naples’ motion without explanation. As no reason was stated for the denial and the basis for the denial is not apparent from the record before us, we are unable to determine whether there was an abuse of discretion in the denial of costs to the prevailing party, and we must remand the matter for further consideration consistent herewith.
{¶ 8} We reiterate that in order to tax a certain expense as a cost, the court
{¶ 9} The breakdown of litigation expenses that Naples sought to recover as costs was as follows:
(1) Trial deposition fees of plaintiff‘s medical expert, $1,500.00;
(2) Videotape recording fees for the trial deposition of plaintiff‘s medical expert, $390.00;
(3) Videotape playback fees at the trial of the deposition of plaintiff‘s medical expert, $260.00;
(4) Attendance of a court reporter at the trial deposition of his
medical expert and transcript preparation fees for the filing of the deposition transcript of plaintiff‘s medical expert, $500.00; (5) Copying and mounting of trial exhibits for jury review by FedEx Kinko‘s, $52.68;
(6) Copying of trial exhibits for introduction at trial, $26.20;
(7) Medical expert report preparation fee and copies of records of plaintiff‘s medical expert, $255.82.
{¶ 10} In reviewing the items listed by Naples, we find that several of the items are not costs that may be taxed under
{¶ 11} We find Naples’ argument concerning whether expert witness fees should be taxed as a cost unpersuasive. Naples fails to cite any statutory authority that would provide for the recovery of his expert‘s fees as costs in this matter. Both the Ohio Supreme Court and this court have found that absent statutory directive, a trial court should not tax an expert witness‘s fees as costs. See Moore v. General Motors Corp., Terex Div. (1985), 18 Ohio St.3d 259, 260; Bates v. Ricco (Nov. 18, 1999), Cuyahoga App. No. 74982. Accordingly, the expert witness fees relating to the deposition and expert report are not recoverable as costs by Naples.
{¶ 12} Next, Naples cites R.C.
{¶ 13} R.C.
{¶ 14} R.C.
{¶ 15} Also, when used as evidence at trial, C.P.Supp.R. 13(D)(2) allows the reasonable expenses of recording testimony on a videotape and playing the videotape at trial to be taxed as costs. Cave v. Conrad, 94 Ohio St.3d 299, 302, 2002-Ohio-793; Foreman v. Wright, Cuyahoga App. No. 82067, 2003-Ohio-5819; Wingfield v. Howe, supra.3 However, the cost of the videotape as a material must be borne by the proponent. C.P.Supp.R. 13(D)(1). Thus, the trial court could assess the expense of recording the videotape and playing it at trial as costs, but could not order appellant to pay the price of the videotape itself as a cost.4 Here again, the trial court must consider the assessment of these costs on remand.
{¶ 16} Finally, none of the copying and mounting expenses listed above are taxable costs. Naples fails to cite any statutory authority for the allowance of such expenses as costs. The Ohio Supreme Court has specifically found that photocopying expenses are not costs. State ex rel. Toth v. Industrial Comm‘n, 80 Ohio St.3d 360, 363, 1997-Ohio-108. It has also been held that exhibit fees are not costs. Bush v. Cardinal Co., Harrison App. Nos. 02 539 CA, 02 HA 546, 2003-Ohio-5443. Further, the expense of obtaining medical records is not a taxable cost. Fulwiler v. Schneider (1995), 104 Ohio App.3d 398, 412.
{¶ 17} In the present case, the trial court did not assess costs in accordance with
Judgment reversed and case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANTHONY O. CALABRESE, JR., J., and CHRISTINE T. MCMONAGLE, J., CONCUR.