Opinion
No. 90-0647.
Decided July 22, 1992.
Gressley, Kaplin, Parker Frederickson and Richard R. Malone, for plaintiffs.
Meister, Ayers Meister Co., L.P.A., and Marc J. Meister, Engwert Loyd and Donna M. Engwert-Loyd, for defendants.
This case is before the court on the post-trial motions of the parties for attorney fees pursuant to R.C. 2323.51 and upon the defendants' Motion for Assessment of Court Costs. For the reasons that follow, I find that both motions for attorney fees should be denied, and that $814.53 should be assessed as costs against plaintiffs.
I
The factual and procedural background to these motions is lengthy and complex, and involves actions in the domestic relations division, juvenile division, and general trial division of this court. On July 6, 1986, a decree of dissolution of marriage was entered dissolving the marriage of plaintiff Daniel W. Sawyer and defendant Carol Sinkey Sawyer. The only child of the marriage was Emily Sawyer, who was born on April 6, 1983. Carol Sawyer was awarded custody of Emily with rights of visitation and companionship awarded Daniel Sawyer. Daniel Sawyer was remarried, to Kathleen Sawyer, in May 1987. Daniel and Kathleen Sawyer, and Scott Sawyer, Kathleen's teenage son from her prior marriage, have lived in the state of Virginia since the marriage.
In August 1987 Daniel Sawyer exercised his right-of-companionship period with Emily Sawyer in Virginia. Following that companionship period, Carol Sawyer made allegations of sexual abuse of Emily by Daniel Sawyer, Kathleen Sawyer and Scott Sawyer. Those allegations were investigated and were ultimately determined to be unfounded by Virginia authorities.
In late August or early September 1987, Daniel Sawyer filed an action in the Domestic Relations Division of the Lucas County Court of Common Pleas to enforce his rights of visitation and companionship with Emily. Carol Sawyer then filed an action in the same court to terminate those rights. A lengthy investigation involving psychological evaluations of Daniel and Kathleen Sawyer as well as Emily Sawyer followed. Daniel Sawyer's rights of visitation and companionship were suspended during that investigation. On March 18, 1988, a hearing was had before Judge Robert Dorrell of the domestic relations division of this court. Following that hearing, an unannounced controlled visitation between Daniel and Kathleen Sawyer and Emily Sawyer was held at the Medical College of Ohio. This visitation was videotaped and observed by the other parties to the litigation as well as attorneys, psychologists, and a guardian ad litem appointed by the court to represent Emily. There was testimony at the trial in this case that Emily recanted her earlier allegations of sexual abuse.
Following the proceedings at the Medical College of Ohio, Judge Dorrell ordered that Daniel Sawyer have visitation with Emily in his parents' home in Toledo under the supervision of the guardian ad litem. Following that visitation, a second visitation was ordered in the home of Daniel Sawyer's parents two weeks later.
Carol Sawyer did not deliver Emily for that visitation. She left the jurisdiction of the court and visited a friend in New York State. While in New York State, Carol Sawyer learned of a group called "Children of the Underground" which assisted parents and children who were violating court orders by fleeing from allegedly abusive situations. From mid-April to mid-June, Carol and Emily Sawyer were in New Jersey, and from mid-June until August they were in the Atlanta, Georgia area. While in New Jersey, Carol Sawyer was interviewed for a segment on the television show "60 Minutes" dealing with the Children of the Underground. That show was aired in October 1988. Since October 1988, Daniel Sawyer has not seen or had any contact with Carol or Emily.
When Carol Sawyer took Emily Sawyer from Toledo in April 1988, Daniel and Kathleen Sawyer immediately began efforts to obtain custody of her and to determine her location. The litigation in the domestic relations division continued. Ultimately, Judge Dorrell awarded custody of Emily Sawyer to Daniel Sawyer. In February 1990, the case was certified from the Domestic Relations Division to the Juvenile Division of the Lucas County Court of Common Pleas, and a minor warrant for Emily was issued by a juvenile court judge.
This action was filed on February 21, 1990. In their complaint, plaintiffs Daniel and Kathleen Sawyer alleged that the defendants John Sinkey, Marian Sinkey and Carol Sawyer conspired to deprive, and did deprive, Daniel Sawyer of his parental rights regarding Emily. In addition, both plaintiffs alleged that they had been defamed by John and Marian Sinkey. No service of process was made on Carol Sawyer. John and Marian Sinkey filed an answer and counterclaims against the plaintiffs, alleging, among other things, defamation and malicious prosecution. Considerable discovery and discovery disputes followed in this court. The defendants' first motion for protective order was denied in December 1990. Their second motion for protective order was granted in part and denied in part in May 1991. Numerous financial records were produced and examined in camera by the court, and certain of those documents were ordered delivered to plaintiffs.
On June 3, 1991, this court ruled on a motion for summary judgment filed on behalf of the defendants. In a written opinion, this court granted the defendants' motion for summary judgment on the plaintiffs' defamation claims on the grounds that they were barred by the statute of limitations. However, the defendants' motion for summary judgment as to the plaintiffs' claim for conspiracy to deprive Daniel Sawyer of his parental rights to Emily Sawyer was denied.
On July 23, 1991, the defendants dismissed their counterclaims. On Wednesday, July 24, 1991, trial on the plaintiffs' claims began. Evidence, arguments and instructions were completed on Thursday, August 1, 1991, and the jury began deliberations in the afternoon of that date. The jury continued their deliberations on Friday, August 2, 1991, and in the afternoon notified the court that they were deadlocked. The charge approved by the Ohio Supreme Court in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188, paragraph two of the syllabus, was given, and the jury resumed its deliberations. The jury returned on Saturday, August 3, 1991, and deliberated throughout that day. They arrived at a verdict as to defendant John Sinkey at the conclusion of their deliberations on that day, but the verdict was not announced at that time.
The jury returned on Monday, August 4, 1991, and resumed deliberations and reached a verdict as to Marian Sinkey. The verdicts were then announced. Both verdicts were in favor of the defendants and against the plaintiffs. The length of the deliberations, as well as the verdicts themselves, reflected the apparent difficulty the jury had in resolving the case. Only six of the eight jurors signed each of the two verdict forms. The same six jurors did not sign both forms.
Judgment was entered on the jury verdict and three post-judgment motions were filed and are presently decisional. They are: (1) defendants' Motion for Attorney Fees pursuant to R.C. 2323.51; (2) plaintiffs' Motion for Attorney Fees pursuant to the same statute; and (3) defendants' Motion for Assessment of Court Costs.
II
The frivolous-conduct claims in this case are filed pursuant to R.C. 2323.51. That statute states in pertinent part:
"(A) As used in this section:
"(1) `Conduct' means filing a civil action, asserting a claim, defense, or other position in connection with a civil action, or taking any other action in connection with a civil action.
"(2) `Frivolous conduct' means conduct of a party to a civil action or of his counsel of record that satisfies either of the following:
"(a) It obviously serves merely to harass or maliciously injure another party to the civil action;
"(b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.
"(B)(1) * * * the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. * * *"
R.C. 2323.51 is known as the "Frivolous Conduct Statute." It first became effective in October 1987 as part of the revised Medical Malpractice Act. However, after that statute was amended and the original version was repealed, the Frivolous Conduct Statute was reenacted as part of the Tort Reform Act of 1987, which became effective in January 1988. The origin of the statutory definition of "frivolous conduct" in R.C. 2323.51 is DR 7-102 found in the Code of Professional Responsibility. The definition of "frivolous conduct" in R.C. 2323.51 is also similar to the improper conduct prohibited by Fed.R.Civ.P. 11, which became effective in 1983. It is also related to Ohio Civ.R. 11. Finally, R.C. 2323.51 is a codification of the bad-faith doctrine developed by the Supreme Court of Ohio, which recognized that a trial court has the inherent power to award attorney fees as costs to a prevailing party where the opponent or his attorney acted in bad faith. See, generally, Browne, Ohio Civil Rule 11 and Other Sanctions: Cases and Analysis from Ohio (1989) Chapters 7 and 8; Browne, Frivolous Conduct: Applying R.C. 2323.51 (1990), 1 Ohio Civ.Prac.J. 33. No case has been found where the Ohio Supreme Court has authoritatively interpreted R.C. 2323.51.
A. FRIVOLOUS CONDUCT CLAIMS OF DEFENDANTS
1. Defendants' Frivolous Conduct Claim as it Relates to the Claim for Conspiracy to Deprive of Parental Rights.
Defendants argue that both definitions of "frivolous conduct" contained in R.C. 2323.51(A)(2)(a) and (b) apply to the plaintiffs' and their attorney's action in filing the deprivation-of-parental rights claim and in litigating that claim to verdict. They argue specifically that the conspiracy-to-deprive-of-parental-rights claim was not warranted under existing law or a good-faith argument for extension of that law, and in addition that it was filed and litigated for an improper purpose.
The plaintiff Daniel W. Sawyer alleged that the defendants John and Marian Sinkey and Carol Sawyer conspired to deprive him of his parental rights to the society, companionship and support of his daughter Emily. While noting that no reported Ohio cases recognized such a claim, this court in a written Opinion and Journal Entry filed on June 3, 1991, and again in ruling on the defendants' motion for directed verdict at trial, held that Ohio should follow other jurisdictions in recognizing such a claim for relief. The bases for that finding are contained in the opinion and the trial record and will not be repeated here. It follows that I find that the action of plaintiff Daniel Sawyer and his attorney in filing the claim for conspiracy to deprive of parental rights was supported by a good-faith argument for an extension of existing law and is not "frivolous conduct" within the meaning of R.C. 2323.51(A)(2)(b).
Defendants argue that the conduct of both plaintiffs and their attorney in filing and litigating the conspiracy claim is also "frivolous conduct" within the meaning of R.C. 2323.51(A)(2)(a), because it was done for the improper purpose of extorting information from the defendants concerning the whereabouts of Emily Sawyer. It is undisputed that a primary motivation of plaintiff Daniel Sawyer in filing this lawsuit was to find his daughter. He testified to this motivation on more than one occasion. The issue is whether this testimony constitutes evidence that plaintiff and his attorney's conduct obviously served merely to "harass or maliciously injure" the defendants.
An unresolved question that must be answered in connection with this issue is whether an objective or subjective test should be applied in determining whether the conduct was frivolous. Professor Browne makes a compelling argument that an objective standard should be applied. Browne, Ohio Civil Rule 11 and Other Sanctions: Cases and Analysis from Ohio Courts, supra, at 5-6, Chapter 8. In addition, federal courts have imposed an objective standard in their interpretation of the analogous provision in Fed.R.Civ.P. 11.
Fed.R.Civ.P. 11 states in pertinent part:
"The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * *"
The rule goes on to provide sanctions for its violation.
This rule has been interpreted to contain three elements: (1) the reading element, (2) the inquiry element, and (3) the improper purpose element. 5A Wright Miller, Federal Practice and Procedure (1990), Section 1335, at 57-58. The third or improper purpose element is similar to the prohibition against "conduct which obviously serves to harass or maliciously injure" another party which is found in R.C. 2323.51(A)(2)(a).
Both the Fifth and Ninth Circuits have adopted an objective standard in determining whether a pleading was filed with an improper purpose. In Natl. Assn. of Govt. Emp. v. Natl. Fedn. of Fed. Emp. (C.A.5, 1988), 844 F.2d 216, the Fifth Circuit stated:
"We do not condone litigation instituted for ulterior purposes rather than to secure judgment on a well-grounded complaint in which the plaintiff sincerely believes. Yet the Rule 11 injunction against harassment does not exact of those who file pleadings an undiluted desire for just desserts. In Zaldivar v. City of Los Angeles [(C.A.9, 1986), 780 F.2d 823, 832], the Ninth Circuit held that the filing of a complaint that complies with the `well grounded in fact and warranted by existing law' prong of Rule 11 cannot, as a matter of law, `harass' the defendant as Rule 11 forbids, regardless of the plaintiff's subjective intent. * * *
"The Zaldivar rule comports with the text and spirit of amended Rule 11. The history of the Rule, as traced by the Zaldivar court, indicates that `subjective bad faith' is no longer an element in Rule 11 inquiries. Instead, the court must focus on objectively ascertainable circumstances that support an inference that a filing harassed the defendant or caused unnecessary delay. As Judge Schwarzer has stated: `If a reasonably clear legal justification can be shown for the filing of the paper in question, no improper purpose can be found and sanctions are inappropriate.' Amended Rule 11 mandates the court to focus on objective circumstances in determining whether an attorney has conducted `reasonable inquiry' and a paper is `well grounded' in fact and law, and purely subjective elements should not be reintroduced into the determination concerning `improper purpose.'
"Like the Zaldivar court, we do not hold that the filing of a paper for an improper purpose is immunized from Rule 11 sanctions simply because it is well grounded in fact and law. The case can be made, for example, as Zaldivar noted, that the filing of excessive motions, even if each is `well grounded,' may under some circumstances constitute `harassment' sanctionable under the Rule. A plaintiff must file a complaint, however, in order to vindicate his rights in court. We find no indication that the filing here was unnecessary * * *." (Footnotes omitted.) Id. at 223-224.
If the objective standard outlined in the Natl. Assn. of Govt. Emp. case is applied to the facts of this case, it is clear that defendants' claim that the purpose of plaintiffs' action was to harass the defendants must fail. As discussed above, plaintiffs' conduct was based upon a good-faith argument for the extension of existing law. In addition, there was an adequate factual basis for this claim. There clearly was sufficient evidence of defendants' involvement in a conspiracy to deprive plaintiff Daniel Sawyer of his parental rights to justify his litigating that claim. For example, there was evidence which would have permitted the jury to find that John and Marian Sinkey assisted their daughter by giving false testimony in the domestic relations case concerning indirect contacts they may have had with Carol Sawyer following her disappearance. There was also circumstantial evidence collected from the Sinkeys' trash which, if believed, would have demonstrated continuing contact between the Sinkeys and their daughter after she left Toledo with Emily. This and other evidence furnished an adequate factual basis for plaintiff and his attorney to litigate the claim to verdict. Thus if an objective standard is applied to the conduct in this case, it is clear that it was not frivolous within the meaning of R.C. 2323.51(A)(2)(b).
Even if a subjective standard is employed in this case, it does not require the conclusion that the plaintiff and his attorney obviously engaged in conduct merely to harass or maliciously injure another party to the action. In Brown v. Lamb (1960), 112 Ohio App. 116, 13 O.O.2d 430, 16 O.O.2d 47, 171 N.E.2d 191, the Sixth District Court of Appeals, sitting in Lucas County, held that a pleading was not frivolous or vexatious and reversed a trial court's dismissal of a petition on those grounds. The court held that:
"Although no statutory power is conferred upon the Court of Common Pleas to strike a petition on the ground that it is frivolous, it is said that the court has inherent power to do so. A pleading is called `frivolous' when it is clearly insufficient on its face and does not controvert the material points of the opposite pleading and is presumably interposed for mere purposes of delay or to embarrass the opponent * * *.
"* * *
"The term, `vexatious,' as applied to a pleading imports that it is instituted maliciously and without probable cause for the purpose of annoying and embarrassing one's opponent or when it is not calculated to lead to any practical result." (Citations omitted.) Id. at 122-123, 13 O.O.2d at 433-434, 16 O.O.2d at 50, 171 N.E.2d at 196.
If the subjective standard found in the Brown case is followed, it leads to the conclusion that the conduct here was not frivolous since the practical purpose stated was to assist the plaintiff in locating his daughter.
Defendants also claim that certain conduct of plaintiff and his attorney in litigating the claim for deprivation of parental rights provides an independent basis for a finding of frivolous conduct pursuant to R.C. 2323.51. They allege that the plaintiffs engaged in lengthy and burdensome discovery concerning the financial affairs of the defendants. They also allege that much of the discovery in this case duplicated discovery done with regard to the custody litigation in the domestic relations division. Finally, they argue that discovery was excessive because much of the material discovered was not placed into evidence at the trial.
Plaintiff Daniel Sawyer sought extensive discovery of financial records of defendants from the time period immediately before the disappearance of Emily up until the trial of the case. He contended that the conspiracy was a continuing one, and that extensive discovery was necessary to locate any payments from John and Marian Sinkey to their daughter. The defendants vigorously contested that discovery. An in camera review was made of numerous financial records of the defendants John and Marian Sinkey. Some of those records were ordered disclosed to plaintiffs and some were returned to defendants. On December 14, 1990 and May 9, 1991, rulings were made with regard to the discovery disputes, and much of the discovery sought by plaintiffs was held to be appropriate. Those rulings will not be repeated here.
Assuming that the plaintiffs' conspiracy claim is supported by a good-faith argument for the extension of existing Ohio law, it follows that appropriate discovery conducted to obtain evidence to support that claim cannot be considered to be frivolous. Nor is there evidence in this record that the discovery sought obviously served to harass or maliciously injure the defendants. For that reason, I find that the conduct of the plaintiff and his attorney with regard to the discovery in this case was not frivolous under R.C. 2323.51.
Defendants' final claim of frivolous conduct relates to the fact that no settlement demand on the conspiracy-to-deprive-of-parental-rights claim was made by plaintiff until two days before the trial began. Trial in this case began July 24, 1991. The parties were conducting discovery up until the time of trial. In addition, the parties' trial briefs, proposed jury instructions, and exhibit lists were not all filed until July 22, 1991. In view of those factors, a failure to make a settlement demand until those essential matters had been completed is clearly not unreasonable. The evidence in this case was that the defendants possessed substantial assets. Given the nature of the allegations in the complaint, and the potential for an award of punitive damages, there was a reasonable possibility in this case of a verdict in excess of the settlement demand of $250,000. Again, assuming that the claim for violation of parental rights is viable, I find that the conduct of the plaintiffs and their attorney with regard to settlement does not constitute "frivolous conduct" within the meaning of R.C. 2323.51.
2. Defendants' Frivolous Conduct Claim as it Relates to the Defamation Claim.
In the fourth cause of action in the complaint, the plaintiffs Daniel and Kathleen Sawyer alleged that the defendants John and Marian Sinkey defamed them by repeating false allegations of sexual abuse of Emily Sawyer. On June 3, 1991, defendants were granted summary judgment on that claim on the basis that it was barred by the one-year statute of limitations governing defamation claims.
At the hearing on defendants' frivolous conduct motion, counsel for the plaintiff testified that he was first contacted by the Sawyers in November 1989. He testified that he researched the law relating to the complaint, and on February 21, 1990, the suit was filed. He stated that he had been told by his clients that Mrs. Sinkey had made defamatory statements to mutual acquaintances, and that he was aware that the statements were outside the statute of limitations at the time the complaint was filed. However, he testified that information contained in evidence in his possession led him to believe that Mrs. Sinkey was still making slanderous statements to one of those acquaintances. There was evidence that that acquaintance died before the case came to trial.
Plaintiffs' counsel testified with regards to John Sinkey that his clients provided him with a draft of a letter from John Sinkey to Judge Charles Abood, who was one of the appellate judges assigned to an appeal arising out of related litigation in the domestic relations division. He testified that he felt that Dr. Sinkey had made defamatory statements in that letter to Judge Abood. He further testified that after the suit was filed he investigated and was unable to locate the original of any letter sent to Judge Abood.
Plaintiffs' counsel further testified that at the time the suit was filed he did not have sufficient evidence to make a prima facie case of defamation against either John or Marian Sinkey. However, he testified that he believed he could develop that evidence during pretrial discovery.
The threshold question in determining whether the filing of the defamation claim constitutes frivolous conduct under R.C. 2323.51(A)(2)(a) is again the question of whether a subjective or objective standard should be used in evaluating the conduct of the plaintiffs and their attorney in this case. However, regardless of whether an objective or subjective standard is used, I find that there is no evidence under either standard to base a finding that the conduct in this case obviously served merely to harass or maliciously injure the defendants. Plaintiffs and their attorney had evidence that defamatory statements had been made, outside the statute of limitations. Given the circumstances of this case, it was reasonable for them to believe that further defamatory statements had been made and there was a reasonable opportunity to develop evidence of the statements through pretrial discovery.
The Ohio Rules of Civil Procedure are based upon notice pleading, along with extensive provisions for pretrial discovery. The fundamental purpose of those rules would be defeated if there was a requirement that a party had to have a prima facie case before a lawsuit could be filed. Any interpretation of R.C. 2323.51 must take into account existing Ohio civil procedure.
Considering the record of this case as well as the purposes underlying the Civil Rules, I find that the action of plaintiffs and their attorney in pursuing the defamation claims was not frivolous conduct under R.C. 2323.51.
B. FRIVOLOUS-CONDUCT CLAIMS OF PLAINTIFFS
Plaintiffs have also moved for an award of attorney fees pursuant to R.C. 2323.51. In support of that motion, they allege that the filing by the defendants of their frivolous-conduct motion is frivolous conduct under the same section.
This claim also necessarily involves a two-step analysis. The first step involves a determination as to whether the filing of the R.C. 2323.51 motion is warranted under existing law or supported by a good-faith argument for an extension of existing law. As discussed above, there is very little law interpreting R.C. 2323.51. I cannot find on the basis of this record that the filing of defendants' motion is either not warranted under existing law or not supported by a good-faith argument for an extension of existing law. For that reason, I find that the filing of defendants' R.C. 2323.51 motion is not "frivolous conduct" within the meaning of R.C. 2323.51(A)(2)(b).
The second step of the inquiry required under R.C. 2323.51 is to determine whether defendants' filing of their motion in this case obviously served merely to harass or maliciously injure the plaintiffs within the meaning of R.C. 2323.51(A)(2)(a). Regardless of whether an objective or subjective standard is employed, I find that the defendants' conduct in filing their motion does not violate R.C. 2323.51(A)(2)(a).
III
The defendants in their Motion for Assessment of Court costs seek to have the expenses relating to certain depositions assessed as costs to be paid by plaintiffs. These expenses are:
1. Transcripts of the depositions of Dr. Sinkey, Mrs. Sinkey and Robert Stoner $ 375.60 2. Transcript of the deposition of Daniel Sawyer $1,264.25 3. Transcript of the deposition of Judith Pickett $ 294.00 4. Transcript of the videotaped deposition of Faye Yager $ 234.90 5. Videotape of the deposition of Faye Yager $ 292.25 6. Transportation to and from Atlanta, Georgia, for the videotaped deposition of Faye Yager $ 600.00 7. Transcript of the deposition of Joe Norman $ 287.38 Total $3,348.38
The videotape deposition of Faye Yager was played at trial and a transcript of the Joe Norman deposition was read to the jury. The remaining depositions were taken for discovery purposes and/or for possible use at trial for impeachment of parties or witnesses.
The defendants' motion is filed pursuant to Civ.R. 54(D) and Rule 12 of the Rules of Superintendence for the Courts of Common Pleas. Those rules state:
Civ.R. 54(D):
"(D) Costs. 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."
C.P.Sup.R. 12(D)(1)(b):
"The reasonable expense of recording testimony on videotape shall be costs in the action."
In seeking to have taxed as costs depositions of the defendants themselves, various discovery depositions, and expenses involved in taking trial depositions, the defendants rely upon Bookatz v. Kupps (1987), 39 Ohio App.3d 36, 528 N.E.2d 961; Horne v. Clemens (1985), 25 Ohio App.3d 44, 25 OBR 118, 495 N.E.2d 441; and Jones v. Pierson (1981), 2 Ohio App.3d 447, 2 OBR 542, 442 N.E.2d 791. In the leading case of Jones v. Pierson, the Eighth District Court of Appeals held that under Civ.R. 54(D), "all litigating expenses will ordinarily be allowed to the prevailing party as costs." Id. at 449, 2 OBR at 545, 442 N.E.2d at 795. The court in Jones held that as a general rule the expense of a deposition used only for impeachment purposes was not a necessary litigating expense which would be taxed as costs. Id. at 451, 2 OBR at 547, 442 N.E.2d at 796. The court held that under the facts of the Jones case, the expense of depositions used for impeachment purposes was not taxable as costs. In the later case of Horne v. Clemens, the Eleventh District Court of Appeals held under Civ.R. 54(D) that taking depositions for impeachment purposes was good legal practice and essential to the proper preparation for trial. A similar ruling was made by the Eighth District in Bookatz v. Kupps. In both cases, the expense of depositions for impeachment purposes was taxed as costs.
The cases relied upon by defendants appear to be contrary to the policies expressed by the Ohio Supreme Court, and in conflict with opinions from other appellate courts of Ohio. In Barrett v. Singer Co. (1979), 60 Ohio St.2d 7, 14 O.O.3d 122, 396 N.E.2d 218, the Ohio Supreme Court held in its syllabus:
"The expense of videotape depositions not used as evidence at trial is to be borne by the party taking such depositions and not taxed as costs in the action."
The court noted that judicial decisions prior to the adoption of the Ohio Rules of Superintendence stated the general rule that depositions taken in anticipation of litigation but not actually used at trial were not taxable as a cost of the action. The court noted with approval the trial judge's statement of the rationale for this rule:
"To tax as costs the expense of depositions not used in trial might tend to discourage the `reasonable exercise' of taking depositions; spendthrift counsel might injudiciously multiply the number of depositions taken with little regard for expense, comfortable in the knowledge that such expense would be taxed as costs." Id. at 11, 14 O.O.3d at 124, 396 N.E.2d at 220.
The court in the body of the opinion recognized an exception to the general rule where overriding considerations require that depositions not used at trial may be taxed as costs to avoid an inequitable result.
The court's decision in Barrett limiting the taxing of deposition expenses as court costs is consistent with its restrictive view of costs in other contexts. Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d 925 (premiums for supersedeas bond on appeal not taxable as costs); Benda v. Fana (1967), 10 Ohio St.2d 259, 39 O.O.2d 410, 227 N.E.2d 197 (the term "costs" in offer of judgment statute is narrower than the term "expense of litigation," and does not include expert witness fees).
The liberal rule developed in Jones and its progeny is in conflict with decisions from other appellate districts. In the pre-Rules case of Searles v. Union Cent. Life Ins. Co. (1936), 55 Ohio App. 85, 8 O.O. 358, 8 N.E.2d 586, the Sixth District Court of Appeals, sitting in Lucas County, refused to tax as costs the deposition of the plaintiff which was not used at the trial. This case was relied upon by the Supreme Court in Barrett. In Rice v. Dudick Corrosion-Proof, Inc. (1989), 57 Ohio App.3d 156, 567 N.E.2d 315, the Ninth District Court of Appeals, citing Barrett, held that the expenses for sixteen depositions used only for impeachment purposes were not taxable as costs under Civ.R. 54(D). The Second District Court of Appeals in Gold v. Orr Felt Co. (1985), 21 Ohio App.3d 214, 21 OBR 228, 487 N.E.2d 347, criticized the majority decision in Jones and held that Civ.R. 54(D) and C.P.Sup.R. 12(D) did not require that the expenses for expert witnesses be taxed as costs. The court in Gold restated the policy reasons for a narrow reading of the rules relating to costs. It noted that items proposed by winning parties as costs should always be given careful scrutiny to avoid the escalation of litigation costs to the point that litigants would be discouraged from bringing meritorious lawsuits. Id. at 216, 21 OBR at 230, 487 N.E.2d at 349.
A review of the cases interpreting Civ.R. 54(D) and C.P.Sup.R. 12 leads to the conclusion that the expense of a deposition which is not used as evidence in trial is to be borne by the party taking the deposition and not taxed as costs unless there are overriding equitable considerations. Applying this rule to the seven items of expense that defendants seek to have taxed as costs, it follows that only direct expenses relating to the depositions of Faye Yager and Joe Norman, which were used at the trial, are taxable as costs. The transcript of a videotaped deposition which was played at the trial is also properly taxable as costs under Civ.R. 54(D) and C.P.Sup.R. 12(D)(1), since it was used at trial by the court for the purpose of ruling on objections, and for use at trial by the videotape operator in producing an edited version of the videotape for play to the jury.
Thus, the following deposition expenses in this case are taxable as costs to plaintiffs:
1. Videotape of the deposition of Faye Yager $292.25 2. Transcript of the deposition of Faye Yager $234.90 3. Transcript of the deposition of Joe Norman $287.38 Total $814.53
JUDGMENT ENTRY
Defendants' motion for award of attorney fees pursuant to R.C. 2323.51 filed on September 26, 1991 is found not well taken and ORDERED denied.
Plaintiffs' motion for award of attorney fees pursuant to R.C. 2323.51 filed on November 20, 1991 is found not well taken and ORDERED denied.
It is ORDERED pursuant to Civ.R. 54(D) that plaintiff pay as costs the amount of $814.53.
So ordered.