Sadowski v. Monteleone

• Court: Ohio Court of Appeals
• Writing for the Court: PER CURIAM; LYLE W. CASTLE, J., retired, of the Twelfth Appellate District, and WILLIAM H. VICTOR
• Citation: Sadowski v. Monteleone, 591 N.E.2d 1304, 69 Ohio App.3d 815 (Ohio App. 1990)
• Decision Date: 15 October 1990
• Docket Number: No. 59188,59188
• Parties: SADOWSKI et al., Appellees, v. MONTELEONE, Appellant.

Page 815

69 Ohio App.3d 815

591 N.E.2d 1304

SADOWSKI et al., Appellees, v. MONTELEONE, Appellant.

No. 59188.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 15, 1990.

Syllabus by the Court

Expert witness fees are not taxable as costs.

Lawrence W. Corman, Cleveland, for appellees Janice Sadowski et al.

Patrick Roche, Cleveland, for appellant.

PER CURIAM.

In his sole assignment of error, appellant Vittorio Monteleone complains that the trial court erred in taxing as costs the expert witness fees of Dr. Li and Dr. Juguilon. We agree.

In Jones v. Pierson (1981), 2 Ohio App.3d 447, 2 OBR 542, 442 N.E.2d 791, the court set forth a two-step analysis for determining whether an expense is a taxable litigating expense or personal expense. Personal expenses are those expenses expended by a party in preparing a case for trial; necessary expenses are funds expended by a party as are necessary and vital to the litigation. Id. at 449, 2 OBR at 544-545, 442 N.E.2d at 794. Next, the court should decide whether a litigating expense should be taxed as a cost in the particular case at bar. While the court retains discretion in this regard, that discretion should be exercised to overrule a motion to tax litigating expenses only where the expense is unusual in type or amount which because of the prevailing part's conduct it is inequitable to assess against the nonprevailing party. Id.

Expert witness's fees have been specifically disallowed as a taxable cost against the nonprevailing party. See Moore v. General Motors Corp. (1985), 18 Ohio St.3d 259, 260-261, 18 OBR 314, 315-316, 480 N.E.2d 1101, 1102-1103; Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 21 OBR 228, 487 N.E.2d 347; Glover v. Massey (Jan. 11, 1990), Cuyahoga App. Nos. 56351 and 56802, unreported, 1990 WL 1328.

The appellant's assignment is well taken for the reason that expert witness fees are not properly taxable as costs.

The judgment of the trial court is reversed.

Judgment reversed.

DYKE, P.J., and LYLE W. CASTLE and WILLIAM H. VICTOR, JJ., concur.

LYLE W. CASTLE, J., retired, of the Twelfth Appellate District, and WILLIAM H. VICTOR, J., retired, of the Ninth Appellate District, sitting by assignment.