Muze v. Mayfield

• Court: Ohio Supreme Court
• Writing for the Court: MOYER; WILLIAM H. HARSHA, J., of the Fourth Appellate District, sitting for HOLMES
• Citation: Muze v. Mayfield, 573 N.E.2d 1078, 61 Ohio St.3d 173 (Ohio 1991)
• Decision Date: 24 July 1991
• Docket Number: No. 90-1985,90-1985
• Parties: MUZE, Appellee, v. MAYFIELD, Admr., et al.; Youghiogheny & Ohio Coal Company, Appellant.

Page 173

61 Ohio St.3d 173

573 N.E.2d 1078

MUZE, Appellee, v. MAYFIELD, Admr., et al.; Youghiogheny & Ohio Coal Company, Appellant.

No. 90-1985.

Supreme Court of Ohio.

Submitted May 8, 1991.

Decided July 24, 1991.

SYLLABUS BY THE COURT

Attorney fees are not included as "costs" of a previously dismissed action unde r Civ.R. 41(D).

Appellee, Robert W. Muze ("Muze"), filed a claim with the Bureau of Workers' Compensation, alleging that he was injured on November 15, 1976 while employed by the appellant, Youghiogheny & Ohio Coal Company ("Y & O"). This claim was allowed for acute back strain.

On October 25, 1983, Muze filed a motion with the Industrial Commission ("commission") requesting that his claim be additionally allowed for degenerative changes of the lumbar spine. The commission denied Muze's motion, and, pursuant to R.C. 4123.519, Muze appealed to the Harrison County Court of Common Pleas. The appeal was dismissed by agreement of the parties without prejudice under Civ.R. 41(A).

Muze refiled his case against Y & O, which prompted Y & O to file a motion requesting the court to issue an order staying all proceedings until Muze paid Y & O's costs in the previously dismissed action. In the alternative, Y & O requested that the court dismiss the refiled action unless the costs of the previously dismissed action were paid by a date certain. Y & O submitted an affidavit alleging that its costs from the prior case were $4,844.38.

The trial court held that in order to maintain his refiled action, Muze must pay the sum of $1,190, including attorney fees, plus $17.11 court costs of the prior suit, within one hundred twenty days. When Muze failed to make the payment within the designated time, the trial court dismissed the refiled case for failure to prosecute. Upon appeal, the court of appeals reversed, holding, inter alia, that under Civ.R. 41(D), attorney fees are not "costs" of a previously dismissed action unless so specified by statute.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Jerry L. Riseling, Columbus, for appellee.

Hanlon, Duff & Paleudis Co., L.P.A., and John G. Paleudis, St. Clairsville, for appellant.

MOYER, Chief Justice.

The issue presented for our review is whether payment of costs of a previously dismissed action under Civ.R. 41(D) includes attorney fees. For the reasons that follow, we hold that attorney fees are not costs of a previously dismissed action.

Civ. R. 41(D) reads 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 and may stay the proceedings in the action until the plaintiff has complied with the order."

We have previously ruled that attorney fees are not included as "costs" unless specified by statute. In State, ex rel. Franklin Cty. Commrs., v. Guilbert (1907), 77 Ohio St. 333, 338-339, 83 N.E. 80, 81, we discussed the...