Howard v. Wills

• Decision Date: 11 September 1991
• Docket Number: No. 641,641
• Citation: 601 N.E.2d 515,77 Ohio App.3d 133
• Parties: HOWARD, Appellant, v. WILLS, Appellee, et al.
• Court: Ohio Court of Appeals

Page 133

77 Ohio App.3d 133

601 N.E.2d 515

HOWARD, Appellant, v. WILLS, Appellee, et al.

No. 641.

Court of Appeals of Ohio, Fourth District, Jackson County.

Decided Sept. 11, 1991.

Joseph P. Sulzer, Chillicothe, for appellant.

Southeastern Ohio Legal Services and Linda C. Kowieski, Chillicothe, for appellee.

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Jackson County Court of Common Pleas, following a bench trial, determining the common boundary line between real property owned by Phyllis M. Howard, plaintiff below and appellant herein, and the property owned by Betty Wills, defendant below and appellee herein, as well as quieting the title of appellee in her property as against appellant and all persons claiming under her. Appellant assigns the following errors for review:

"I. The trial court abused its discretion by requiring plaintiff-appellant to pay defendant-appellee costs of the action previously dismissed.

"II. The trial court abused its discretion in its order of February 21, 1990, granting partial summary judgment pursuant to defendant-appellee's motion for summary judgment.

"III. The trial court abused its discretion by qualifing [sic ] one of defendant-appellee's witnesses as an expert and relying upon the testimony and evidence prepared by said witness in deciding the case in this matter.

"IV. The trial court abused its discretion by ignoring the law and the testimony of all witnesses involved in establishing the boundary lines between the plaintiff-appellant and the defendant-appellee.

"V. The trial court abused its discretion by awarding defendant-appellee litigation expenses in the amount of $239.10 pursuant to Civil Rule 54(D)."

A short summary of the facts pertinent to this appeal is as follows. Appellant commenced the action below on May 1, 1989, seeking both a judicial determination of a boundary line and to compel appellee to set forth any interest which she claimed in appellant's property located in Jackson County, Ohio. Appellee answered by denying any claim to appellant's real estate and requested that the title to her property be quieted against any claim made by appellant.

On February 21, 1990, the trial court granted appellee partial summary judgment on a previous motion and held that the boundary line between the two parcels was the "half section line of section six" in Jackson Township of Jackson County. The court further held that the precise location of the "half section" line was a genuine issue of material fact to be determined at trial. ¹ This issue came on for trial on March 12, 1990, at which time both parties presented evidence as to the location of the line which would serve as the boundary between their properties. On April 17, 1990, the court entered its judgment below holding, in part, that the true boundary line between the premises was the quarter section line as located by a 1978 survey. On that basis, the trial court ordered that title to appellee's property laying north of the established quarter section line be forever quieted as against appellant or those claiming under her. Additional facts will be set forth where necessary to resolve a particular assignment of error.

We shall jointly consider appellant's first and fifth assignments of error as they both address the propriety of taxing certain costs against her. It would appear from the record that, on November 20, 1987, appellant had commenced an action similar to the cause sub judice against appellee and Terry Barnhart. That action was scheduled for trial in early May 1989, but was dismissed under Civ.R. 41(A)(1) shortly before then. As stated previously, this action was commenced on May 1, 1989. The following month, appellee moved for an order under Civ.R. 41(D) requiring appellant to pay her the sum of $359.45 in reimbursement of the cost of two depositions and the preparation of a survey which she had incurred in defending the action previously dismissed. On July 6, 1989, the court granted the motion and ordered appellant to pay those costs.

Similarly, on April 3, 1990, appellee filed her motion under Civ.R. 54(D) to have certain expenses taxed as costs. On May 7, 1990, the trial court granted appellee's motion, in part, and allowed the following items to be so taxed: $43.60 subpoena and witness fees, $8 for certified copies of deeds, and $187.50 for expert witness fees. Appellant now argues that the trial court abused its discretion both in taxing these items to court costs and in ordering her to pay $359.45 to appellee for expenses incurred in the previously dismissed action. To an extent, we agree with appellant.

The resolution of these assignments of error requires an understanding of the word "costs" as used in two pertinent civil rules. First, Civ.R. 41(D) provides, inter alia, as follows:

"If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper * * *." (Emphasis added.)

In the same context, Civ.R. 54(D) states the following:

"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." (Emphasis added.)

The dispositive issue here is whether those items specified in the court orders below were actually "costs" within the meaning of these two rules. If so, then the trial court is generally afforded broad discretion in assessing such costs and its ruling will not be overturned absent a showing of an abuse of that discretion. Such a showing would require appellant to demonstrate that the lower court's ruling was arbitrary, unreasonable or unconscionable. See Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622, 624; Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205.

On the other hand, if those items specified in the court orders do not fall within the general rubric of "costs," then the court below was without authority under either Civ.R. 41(D) or Civ.R. 54(D) to enter such an order with respect to those items. Recently, the Ohio Supreme Court reaffirmed that "[c]osts, in the sense the word is generally used in this state, may be defined as being the statutory fees to which * * * [specified individuals] * * * are entitled for their services in an action * * *." Muze v. Mayfield (1991), 61 Ohio St.3d 173, 174, 573 N.E.2d 1078, 1079, citing State ex rel. Franklin Cty. Commrs. v. Guilbert (1907), 77 Ohio St. 333, 338-339, 83 N.E. 80, 81. Indeed the subject of "costs" is one entirely of statutory allowance and control. Muze, supra, 61 Ohio St.3d at 175, 573 N.E.2d at 1079; Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 51, 23 O.O.3d 88, 89, 430 N.E.2d 925, 926; State ex rel. Michaels v. Morse (1956), 165 Ohio St. 599, 607, 60 O.O. 531, 535, 138 N.E.2d 660, 666.

With that definition in mind, we must now determine, on an item-by-item basis, whether those expenses awarded by the court below could properly be characterized as "costs." We first turn to the $289.45 in deposition expenses which the trial court ordered appellant to pay on July 6, 1989. Neither appellee, nor the court below, cites a specific statute which would allow for this expense to be taxed as a cost and we are aware of none. Thus we are not persuaded that such expenses may be properly characterized as costs and the court below erred in awarding them as such. ²

We next turn to the $43.60 in witness fees and expenses which the trial court ordered taxed as costs below. While neither party has cited us to any authority on this item, the general rule appears to be that such expenses may be included in a judgment for costs under R.C. 2335.06(A). See 19 Ohio Jurisprudence 3d (1980) 180-181, Costs, Section 25. Accordingly, the award of such costs would be within the trial court's discretion.

We now come to the remaining expense items which present a more difficult case. In its order dated May 7, 1990, the trial court stated that the appearance of expert witness, Jon Sharrett, had been "necessary" and "vital" to the case. Thereafter, the court taxed his expert witness fee of $187.50 as "costs" in the action. Neither the trial court nor appellee has cited any authority which would permit the taxing of such fee as a cost in the action and we are aware of none. To the contrary, the weight of authority would seem to hold that an expert witness fee is not taxable as a cost to be charged to the losing party. See, e.g., Dorko v. Woodruff (1988), 42 Ohio App.3d 13, 14, 536 N.E.2d 56, 57; Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 216, 21 OBR 228, 230, 487 N.E.2d 347, 349; Sadowski v. Monteleone (1990), 69 Ohio App.3d 815, 591 N.E.2d 1304; see, also, McCormac, Ohio Civil Rules Practice (1991 Supp.) 191, Section 13.18. Accordingly, we hold that the expert witness fee was not a "cost" and the court below was without authority to tax it as such.

Finally, in both court orders below, the expense of sundry evidentiary items were determined to be costs and were awarded against appellant. These items included $70 for a survey drawing and $8 for certified copies of deeds. Once again, we have been cited no authority in either the Civil Rules or the Revised Code which would characterize these expenses as "costs" that could be charged against a losing party. In that we are aware of no such provision, we hold that the expenses for such evidentiary items cannot be taxed as costs. ³ Accordingly, the court below was without authority to do so.

Having determined that the witness expenses were properly taxable as "costs" below, we are not persuaded that there was any abuse of discretion in awarding them against appellant. In her brief, appellant fails to demonstrate that the...