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State of Ohio v. David Netherland

October 26, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAVID NETHERLAND, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Kline, J.:

DECISION AND JUDGMENT ENTRY

{¶1} David Netherland appeals the trial court's denial of his "Motion to TaX

Expenses of Defendant-Petitioner Netherland as Prevailing Party to be Paid by PlaintiffRespondent." Netherland contends that the trial court should have awarded him various "litigation expenses" as costs. Because Netherland cannot (1) provide statutory authority for the costs he seeks to recover or (2) demonstrate that the trial court's denial of his motion was an abuse of discretion, we disagree. Accordingly, we affirm the judgment of the trial court.

I.

{¶2} In December 1997, Netherland was convicted of one count of rape and one count of sexual battery. The trial court classified him as a "sexually oriented offender" under the sex-offender-classification scheme that was in effect at the time. In December 2007, Netherland received a NOTICE OF NEW CLASSIFICATION AND REGISTRATION DUTIES from the Office of the Ohio Attorney General. The notice stated that he would be reclassified as a Tier III sex offender pursuant to SB 10. Under the new classification, Netherland was subject to registration every ninety days for the remainder of his life and to the community notification provisions of Section 2950.11.

{¶3} Netherland then filed a petition to challenge his new classification in the Ross County Court of Common Pleas. The trial court denied his petition, and we affirmed the trial court's decision in State v. Netherland, Ross App. No. 08CA3043, 2008-Ohio-7007 (hereinafter "Netherland I").

{¶4} Eventually, the Supreme Court of Ohio reversed our decision. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424; In re Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, at ¶¶15, 16. As a result, the trial court reinstated Netherland's original sex-offender classification.

{¶5} After the reinstatement of his original classification, Netherland filed a "Motion to Tax Expenses of Defendant-Petitioner Netherland as Prevailing Party to Be Paid By Plaintiff-Respondent." In his motion, Netherland sought to recover various "litigation expenses" under R.C. 2323.51, Civ.R. 11, and Civ.R. 54(D). The trial court denied Netherland's motion.

{¶6} Netherland appeals and asserts the following assignment of error: I. "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND/OR ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO TAX NECESSARY LITIGATION EXPENSES AS COSTS FOLLOWING THE ENTRY OF THE SUPREME COURT OF OHIO IN HIS FAVOR."

II.

{¶7} In his sole assignment of error, Netherland claims that the trial court erred when it denied his motion to tax necessary litigation expenses as costs in his favor.

{¶8} Initially, we note that, in his "Statement of the Facts and Case," Netherland asserts that he "seeks litigation expenses under Civ.R. 54(D), R.C. §2323.51, and Civ.R. 11." Appellant's Brief at 2. In his "Law and Argument" section, however, Netherland argues only that he is entitled to recover costs under Civ.R. 54(D). He provides no argument or authority demonstrating that he is entitled to recover the expenses under either R.C. 2323.51 or Civ.R. 11. An appellant's brief must include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." App.R. 16(A)(7) (emphasis added). Because Netherland's brief does not contain any argument that he is entitled to relief under either R.C. 2323.51 or Civ.R. 11, we will not consider his cursory assertion that R.C. 2323.51 and Civ.R. 11 allow him to recover his litigation expenses. Accordingly, we examine only whether Netherland can recover his litigation expenses under Civ.R. 54(D).

{¶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 to the prevailing party unless the court otherwise directs."

{ΒΆ10} Netherland argues that, because the Supreme Court of Ohio ultimately ruled in his favor in Netherland I, he is the prevailing party in his challenge to his sex offender reclassification. Thus, according to Netherland, the trial court erred when it denied ...


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