Court of Appeals of Ohio, Fifth District, Tuscarawas
STATE OF OHIO, BY AND THROUGH JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, ET AL. Plaintiff-Appellants
KARL R. ROHRER ASSOCIATES, INC. Defendant-Appellee
from the Tuscarawas County Common Pleas Court, Case No.
Plaintiff-Appellants MICHAEL DEWINE Ohio Attorney General,
CRAIG D. BARCLAY, WILLIAM C. BECKER Assistant Attorneys.
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.
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.
OF THE CASE
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.
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.
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
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. ...