VOSSMAN, APPELLANT, v. AIRNET SYSTEMS, INC., ET AL., APPELLEES.
No. 2017-1688
Supreme Court of Ohio
Submitted April 23, 2019—Decided March 12, 2020
2020-Ohio-872
DeWine, J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Vossman v. AirNet Sys., Inc., Slip Opinion No. 2020-Ohio-872.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-872
VOSSMAN, APPELLANT, v. AIRNET SYSTEMS, INC., ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Vossman v. AirNet Sys., Inc., Slip Opinion No. 2020-Ohio-872.]
(No. 2017-1688—Submitted April 23, 2019—Decided March 12, 2020.)
APPEAL from the Court of Appeals for Franklin County, No. 16AP-739, 2017-Ohio-2872.
DEWINE, J.
{¶ 1} A prevailing party in a civil lawsuit is ordinarily entitled to recover court costs. See
{¶ 2} We conсlude that a discovery deposition conducted outside the presence of a judge is not a proceeding within the meaning of
I. The trial court awards costs of procuring deposition transcripts
{¶ 3} The relevant facts are straightforward. In 2011, Dan Vossman, sued his former employers, AirNet Systems, Inc., Quinn Hamon, and Thomas Schaner (collectively, “AirNet“), for age discrimination. Over the course of litigation, the parties took five depositions: four of AirNet employees and one of Vossman. AirNet filed a motion for summary judgment. In support of its motion, AirNet cited to the transcripts of several depositions of its employees, and it filed portions of the transcripts with the court. After the trial court granted AirNet‘s summary-judgment motion, AirNet, relying upon
{¶ 4} Vossman appealed. He argued that the trial court erred in awarding deposition-transcript expenses as costs. 2017-Ohio-2872, ¶ 2. He specifically relied on passages from our decision in Williamson v. Ameritech Corp., 81 Ohio St.3d 342, 343, 691 N.E.2d 288 (1998), stating that there is no general or specific statutory basis for a court to award deposition expenses to a prevailing party. Id. at 343. The Tenth District Court of Appeals was unpersuaded. Noting that Williamson dealt with
{¶ 5} Vossman appealed to this court, and we now address whether deposition transcript costs are recoverable under
II. R.C. 2303.21 does not allow the expense of procuring deposition transcripts to be taxed as a cost
A. There must be a statutory basis to include an item as a cost
{¶ 6}
{¶ 7} The categories of expenses that qualify as “costs” are limited because the “subject of costs is one entirely of statutory allowance and control,” State ex rel. Michaels v. Morse, 165 Ohio St. 599, 607, 138 N.E.2d 660 (1956); accord Vance v. Roedersheimer, 64 Ohio St.3d 552, 555, 597 N.E.2d 153 (1992), quoting Michaels at 607. It is nеcessary, therefore, to tie an award of costs to a statutory provision. Williamson, 81 Ohio St.3d at 344.
{¶ 8} To support its request for the cost of procuring the deposition transcripts, AirNet looks to
When it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.
{¶ 9} AirNet argues that a deposition transcript constitutes a transcript of a “proceeding” and asserts that because the transcripts were “necessary” to its motion for summary judgment, the cost of procuring the deposition transcripts is recoverable under the statute. Vossman pushes back on such a reading. He contends that a deposition is not a “proceeding” within the meaning of the statute and insists that Williamson forecloses any award for the cost of procuring deposition transcripts.
B. Williamson is not controlling
{¶ 10} Before we get to the dispute about the prоper interpretation of
{¶ 11} Vossman plucks a single sentence from Williamson: “Here, unlike [in] In re Election of November 6, 1990 for the Office of Attorney General of Ohio [62 Ohio St.3d 1, 577 N.E.2d 343 (1991)], there is no statute authorizing the deposition expenses to be taxed and included in the judgment.” Id. at 345. Based on this sentence, he argues that our precedent requires that we rule in his favor. In doing so, hе overreads Williamson. When the opinion is read in its entirety, it is clear that the court was deciding only the issue in front of it—whether deposition expenses were recoverable under
C. A deposition conducted outside the presence of a judge is not a proceeding within the meaning of R.C. 2303.21
{¶ 13} What we are left with is essentially a linguistic dispute over whether a deposition is a proceeding under
{¶ 14} The General Assembly did not define “proceeding” in
{¶ 15} We have observed that the term “proceeding” is sometimes used as a technical legal term with a “peculiar and appropriate meaning in law“; other times, it is “‘a very comprehensive term, and may have different meanings, according to the context and the subject to which it relates, such as by its combination with other words and phrases which vary its ordinary meaning.‘” Zangerle v. Evatt, 139 Ohio St. 563, 570, 41 N.E.2d 369 (1942), quoting 1 Corpus Juris Secundum, Actions, Section 1, at 954.
{¶ 16} The subject to which
{¶ 17} The statute in question was originally enacted in 1859,
{¶ 18} As a preliminary matter, law dictionaries from the second half of the 19th century support the conclusiоn that in the legal context, the term “proceeding” was primarily used to describe activity before a judicial officer. For instance, the 1860 version of Burrill‘s legal dictionary defines “proceeding” as follows: “In practice. A going on in form of law; an act done in form of law, as before a court or judicial officer; a judicial act, directed against persons оr property, and contemplating some ultimate remedial object.” 2 Burrill, Law Dictionary and Glossary 340 (2d Ed.1860). The first edition of Black‘s Law Dictionary, published in 1891, defines a proceeding as “[i]n a general sense, the form and
{¶ 19} Looking to the statutory context also supports the conclusion that a transcript of a proceeding means a transcript of matters presented to a court or other adjudicative body. Within the statute, the word “proceeding” occurs in a list that includеs two other items, “judgment” and “exemplification of a record.” Under the rule of interpretation known as noscitur a sociis, words that are listed together should be understood in the same general sense. In re Application of Middletown Coke Co., 127 Ohio St.3d 348, 2010-Ohio-5725, 939 N.E.2d 1210, ¶ 36 (Lundberg Stratton, J., dissenting). The former Code of Civil Procedure of Ohio, which was enacted in 1853 and in effect at the time the statute at issue herein was passed, defined both “judgment” and “record.” Section 370 of that code defined “judgment” as “the final determination of the rights of the parties in an action.”
{¶ 20} The conclusion that under the statute a transcript of a proceeding documents what happened in the court is further supported by the fact that elsewhere in the Code of Civil Procedure in place in 1859, the phrase “transcript of a proceeding” refers to components of the court‘s record. Section 517 of the former Code of Civil Procedure states that in a proceeding in error—i.e., an appeal—“[t]he plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified.”
{¶ 21} It is worth noting that in 1859, there was nothing analogous to modern discovery procedures. To be sure, the Code of Civil Procedure in plаce at the time had a procedure called a deposition. See Section 334 of the former Code of Civil Procedure,
{¶ 22} In short, available historical indicators suggest that as understood in 1859, when the disputed provision became part of the revised code, the legal effect of the provision was to allow the recovery of costs related to documenting the acts that transpired in a court or other adjudicative body. The statute did not allow for recovery of costs associated with the general procuring of evidence.
{¶ 23} The dissenting opinion disagrees and makes some gestures in support of the conclusion that one might permissibly refer to a deposition as a proceeding, or at least a part of one. But the question we must ask is not how the word “proceeding” might be used in the abstract but, rather, what that word means in the context of
III. Conclusion
{¶ 24} A deposition conducted outside the presence of a judge is not a proceeding within the meaning of
Judgment reversed and cause remanded.
KENNEDY, FRENCH, DONNELLY, and STEWART, JJ., concur.
O‘CONNOR, C.J., concurs in judgment only.
FISCHER, J., dissents, with an opinion.
FISCHER, J., dissenting.
{¶ 25} Respectfully, I disagree with the majority opinion because I think that a deposition falls within the meaning of the word “proceeding” as it is used in
{¶ 26}
{¶ 27} In interpreting this provision, the majority opinion concludes that a deposition is not a proceeding, because in 1859 the word “proceeding” meant an activity “before a court” or “before a judicial officer.” Majority opinion at ¶ 17, 18. Reasoning that there was nothing similar to modern discovery procedures back then, the majority opinion goes on to conclude that the cost of procuring deposition transcripts used as evidence in support of a motion for summary judgment is not recoverable now under
{¶ 28} Long before the current Rules of Civil Procedure were adopted by this court, the General Assembly enacted a Code of Civil Procedure. See An Act to Establish a Code of Civil Procedure,
{¶ 29} Notably, under the former Code of Civil Procedure, depositions had to be “taken by an officer or person whose authority [was] derived within the State.” (Emphasis added.) Section 340,
{¶ 30} Next, and perhaps most importantly, the laws at the time seem to indicate that a deposition was very much a part of the proceeding: “When a deposition has been once taken, it may be read in any stage of the same action or proceeding, * * * subject however to all such exceptions as may be taken thereto under the provisions of this title [Title X of the Code of Civil Procedure (Evidence)].” (Emphasis added.) Section 349,
{¶ 31} And what of the cost? The cost was recoverable if the deposition was used. See Shaw v. Ohio Edison Installation Co., 9 Ohio Dec.Rep. 809, 812 (Super.Ct.1887) (“If [the deposition] is not used at all, then the party taking it must pay the costs“).
{¶ 32} Thus, while the use of depositions has since expanded and the procedures for taking depositions have been relaxed, it stands to reason that the cost of procuring a deposition transcript used as evidence should still be recoverable. After all, a deposition is just as much a part of the proceeding today as it was in the 1800s. See
{¶ 33} Accordingly, I would hold that the cost of procuring deposition transcripts used as evidence in support of a motion for summary judgment is recoverable as a cost under
{¶ 34} For these reasons, I respectfully dissent.
Law Offices of Russell A. Kelm, Russell A. Kelm, and Ian M. King, for appellant.
Vorys, Sater, Seymour & Pease, L.L.P., David A. Campbell, and Gregory C. Scheiderer, for appellees.
Advocates for Basic Legal Equality, Inc., and Heather L. Hall, urging reversal for amicus curiae, Advocates for Basic Legal Equality, Inc.