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State ex rel. Wray v. Karl R. Rohrer Associates, Inc.

Court of Appeals of Ohio, Fifth District, Tuscarawas

January 11, 2018

STATE OF OHIO, BY AND THROUGH JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, ET AL. Plaintiff-Appellants
v.
KARL R. ROHRER ASSOCIATES, INC. Defendant-Appellee

         Appeal from the Tuscarawas County Common Pleas Court, Case No. 2015CV030118

          For Plaintiff-Appellants MICHAEL DEWINE Ohio Attorney General, CRAIG D. BARCLAY, WILLIAM C. BECKER Assistant Attorneys.

          For Defendant-Appellee BRIAN T. WINCHESTER, PATRICK J. GUMP.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Hoffman, J.

         {¶1} Appellants State of Ohio, by and through Jerry Wray, Director, Ohio Department of Transportation and Ohio Department of Administrative Services n/k/a Ohio Facilities Construction Commission appeal a judgment entered by the Tuscarawas County Common Pleas Court awarding Appellee Karl R. Rohrer Associates Inc. costs in the amount of $10, 135.60.

         STATEMENT OF THE CASE[1]

         {¶2} On March 3, 2015, Appellants filed the instant action against Appellee for breach of contract, negligence and declaratory judgment. The claims arose from engineering services provided by Appellee on the construction of an Ohio Department of Transportation facility in New Philadelphia, Ohio.

         {¶3} Prior to trial, Appellants dismissed their claims for negligence and declaratory judgment. The breach of contract claim proceeded to jury trial in the Tuscarawas County Common Pleas Court. Following the presentation of Appellants' case, the trial court directed a verdict in Appellee's favor, finding the cause of action sounded in tort rather than contract, and Appellants' had not presented any evidence Appellee breached the contract. Judgment entry, February 28, 2017.

         {¶4} On March 8, 2017, Appellee moved for an award of costs pursuant to Civ. R. 54(D). The trial court found as the prevailing party, Appellee was entitled to an award of costs of $2, 474.07 for deposition transcripts, $7, 393.53 for trial exhibits and oversized drawings, $268.00 for court costs, for a total award of $10, 135.60. From this April 19, 2017 judgment of the court Appellants prosecute their appeal, assigning as error:

"THE TRIAL COURT ERRED BY AWARDING APPELLEE COURT COSTS CONSISTING OF TRIAL EXHIBIT EXPENSES AND DISCOVERY DEPOSITION EXPENSES NOT PERMITTED BY STATUTE, RULE OR ESTABLISHED CASE LAW."

         {¶5} 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." The phrase "unless the court otherwise directs" grants the trial court discretion to order the prevailing party bear all or part of his or her own costs. Vance v. Roedersheimer, 64 Ohio St.3d 552, 555, 1992-Ohio-24, 597 N.E.2d 153, 156. The Ohio Supreme Court has defined "costs":

This court has consistently limited the categories of expenses which qualify as "costs." "Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action * * * and which the statutes authorize to be taxed and included in the judgment * * * * * * Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute * * *." State, ex rel. Commrs. of Franklin County, v. Guilbert (1907), 77 Ohio St. 333, 338-339, 83 N.E. 80, quoted, in part, with approval in Benda v. Fana (1967), 10 Ohio St.2d 259, 262-263, 227 N.E.2d 197.
Today, we reaffirm the principle that "(t)he subject of costs is one entirely of statutory allowance and control." State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 607, 138 N.E.2d 660, quoted with approval in Sorin v. Bd. of Edn. ...

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