Vance v. Roedersheimer

• Citation: 597 N.E.2d 153,64 Ohio St.3d 552
• Decision Date: 02 September 1992
• Docket Number: No. 91-1323,91-1323
• Parties: VANCE et al., Appellants and Cross-Appellees, v. ROEDERSHEIMER, Appellee and Cross-Appellant.
• Court: United States State Supreme Court of Ohio

Page 552

64 Ohio St.3d 552

597 N.E.2d 153

VANCE et al., Appellants and Cross-Appellees, v. ROEDERSHEIMER, Appellee and Cross-Appellant.

No. 91-1323.

Supreme Court of Ohio.

Submitted May 6, 1992.

Decided Sept. 2, 1992.

Appellant and cross-appellee Stanley D. Vance was injured when his police cruiser collided with a vehicle operated by appellee and cross-appellant, Alice Roedersheimer. Vance and his wife, appellant and cross-appellee Beverly Vance, filed a negligence action against Roedersheimer. ¹

The action was filed in the Court of Common Pleas of Montgomery County, where Loc.R. 2.53 provides for the compulsory arbitration of certain claims. An award rendered in arbitration may be appealed to the court of common pleas for trial de novo. ² The trial court issued an order requiring the parties to arbitrate.

Following a hearing, the arbitration panel awarded Stanley Vance $10,000 and Beverly Vance $1,000. The Vances appealed and the case was tried before a jury. The jury returned a verdict in favor of the Vances, but awarded Stanley only $5,000. Beverly, although prevailing on the issues, was awarded no damages.

Roedersheimer filed a motion seeking costs and attorney fees as allowed under Loc.R. 2.53(Z). The trial court awarded $2,230.10 in costs ³ against the Vances, but denied attorney fees. The Vances appealed to the court of appeals claiming that Loc.R. 2.53(Z) contravenes Civ.R. 54(D) by permitting an award of costs to a non-prevailing party. Roedersheimer cross-appealed the denial of attorney fees.

The court of appeals reversed the award of costs to Roedersheimer, finding Loc.R. 2.53 to be unconstitutional. The court held that the definition of "costs" in Loc.R. 2.53(Z)(4) exceeds the limits imposed by Civ.R. 54(D). The cause was remanded for consideration of an award which would conform with the definition of "costs" in Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d 925. The Vances appeal from this judgment. The denial of attorney fees was affirmed. Roedersheimer cross-appeals from this judgment.

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

James A. Hensley, Jr., Huber Heights, for appellants and cross-appellees.

John A. Smalley and Kenneth J. Ignozzi, Dayton, for appellee and cross-appellant.

HERBERT R. BROWN, Justice.

The issue before us in this case is the enforceability of Loc.R. 2.53(Z). For the reasons which follow, we affirm the holdings, but not the reasoning, of the court of appeals.

Direct Appeal

Courts of this state are entitled to adopt rules of local practice. However, under Section 5(B), Article IV of the Ohio Constitution, Civ.R. 83 and C.P.Sup.R. 9(C), ⁴ local rules may not be inconsistent with any rule governing procedure or practice promulgated by this court, including the Rules of Civil Procedure. Any local rule is therefore enforceable only to the extent that it is consistent with the Civil Rules.

Loc.R. 2.53(Z) provides in part:

"1. In the case of any action that is tried de novo as the result of an appeal from an arbitration order, the court, in the exercise of its sound discretion, may include in the judgment an award of reasonable attorney's fees and costs for the parties as follows:

"a. * * *

"b. For a defendant-appellee, if the judgment remains in defendant-appellee's favor or is reversed in defendant-appellee's favor or if the judgment in favor of plaintiff-appellant does not exceed the arbitration award by more than twenty-five percent.

" * * *

"4. 'Costs' includes, but is not limited to, court reporter statements, deposition transcripts, travel expenses, expert witness fees and expenses associated with the preparation of demonstrative evidence."

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."

Our interpretation of Civ.R. 54(D) is that the phrase "unless the court otherwise directs" grants the court discretion to order that the prevailing party bear all or part of his or her own costs. ⁵ We differ from the court of appeals in that we do not believe that such phrase empowers the court to award costs to a non-prevailing party. We also differ from the court of appeals in that we do not view the Vances as the prevailing party. The trial in this case, although de novo, is an appeal from an arbitration award. A party who goes into such a trial with an award of $10,000 and emerges with $5,000 can hardly be said to have prevailed. Loc.R. 2.53(Z) is therefore not contrary to Civ.R. 54(D) to the extent that it authorizes an award of costs to Roedersheimer.

However, the definition of "costs" in Loc.R. 2.53(Z)(4) conflicts with our holding in Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d 925. In that case we held:

"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 , quoted, in part, with approval in Benda v. Fana (1967), 10 Ohio St.2d 259, 262-263 [39 O.O.2d 410, 413, 227 N.E.2d 197, 200-201].

"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 [60 O.O. 531, 535, 138 N.E.2d 660, 666], quoted with approval in Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 179 [75 O.O.2d 224, 225, 347 N.E.2d 527, 529]. * * *" Id., 69 Ohio St.2d at 50-51, 23 O.O.3d at 89, 430 N.E.2d at 926.

To the extent that Loc.R. 2.53(Z) has a definition of "costs" that conflicts with Centennial, it is unenforceable. Therefore, the court of appeals reached the proper result in reversing the award of costs to Roedersheimer, and in remanding the cause to the trial court for reconsideration in light of Centennial.

We note that the Vances also challenge the validity of Loc.R. 2.53(Z) on the grounds that the local rule " * * * produces a chilling effect upon the right to trial by jury * * *." Our decision herein invalidates Loc.R. 2.53 to the extent that it reaches beyond Civ.R. 54(D) and our holding in Centennial, supra. Thus, the local rule, as limited, has no more chilling effect than does the application of Rule 54(D) to assess costs against any non-prevailing party. This obviates the necessity to address the constitutional challenge made by the Vances.

Cross-Appeal

It has long been established in Ohio that an award of attorney fees must be predicated on statutory authorization or upon a finding of conduct which amounts to bad faith. See, e.g., Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 75 O.O.2d 224, 347 N.E.2d 527, and State ex rel. Durkin v. Ungaro (1988), 39 Ohio St.3d 191, 529 N.E.2d 1268. The court of appeals recognized this principle and affirmed the judgment of the trial court denying Roedersheimer's motion for attorney fees. Here, there is no statutory authorization which would justify an award of attorney fees. Nor was there any evidence of bad faith. Therefore, we agree with the court of appeals that Roedersheimer was not entitled to an award of attorney fees, irrespective of the provisions of the local rule.

Although our reasoning differs from that of the court of appeals, we affirm the reversal of the award of costs, the remand for consideration of an award of costs in conformity with Centennial, and the denial of attorney fees.

Judgment affirmed.

MOYER, C.J., and HOLMES and WRIGHT, JJ., concur.

SWEENEY, DOUGLAS and RESNICK, JJ., concur in part and dissent in part.

DOUGLAS, Justice, concurring in part and dissenting in part.

I concur with the disposition of the cross-appeal on the issue of attorney fees. I do not agree with the majority's disposition of the issues raised by appellants' appeal, or with the majority's ultimate judgment in this matter. In its effort to validate the Loc.R. 2.53 "compulsory arbitration" process, the majority has compromised the purposes of the Civil Rules and has ignored the fundamental constitutional right to trial by jury. I, for one, cannot join the majority in its agenda in this case.

The facts giving rise to the appeal and cross-appeal are not complicated.

Appellant and cross-appellee Stanley D. Vance was injured in the course of his employment as a Montgomery County Sheriff's Deputy when his police cruiser collided with a vehicle operated by appellee and cross-appellant, Alice Roedersheimer (hereinafter "appellee"). In September 1989, Vance and his wife, appellant and cross-appellee Beverly Vance (collectively referred to as "appellants"), filed a negligence action against appellee in the Court of Common Pleas of Montgomery County.

Loc.R. 2.53 of the Court of Common Pleas of Montgomery County, General Division, provides for the "compulsory arbitration" of certain claims. An "award" rendered in the "arbitration" proceeding may be "appealed" by either party to the court of common pleas for a trial de novo. On December 20, 1989, the trial court issued an order requiring the parties herein to engage in the Loc.R. 2.53 "arbitration" process.

In April 1990, the matter proceeded to a hearing before a panel of three arbitrators (the "panel"). Following the hearing, the panel "awarded" Stanley Vance $10,000 and Beverly Vance $1,000 on her claim for loss of consortium. Appellants appealed this "award" and the case was tried...