Vance v. Roedersheimer

Herbert R. Brown, J.

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.

U * # *

“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:

*555“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 [83 N.E. 80, 81], 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.

*556To 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., Holmes and Wright, JJ., concur. Sweeney, Douglas and Resnick, JJ., concur in part and dissent in part.

. Section 5(B), Article IV of the Ohio Constitution provides in part:

“The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”

Civ.R. 83 provides:

“The expression ‘rule of court’ as used in these rules means a rule promulgated by the supreme court or a rule concerning local practice adopted by another court which is not inconsistent with the rules promulgated by the supreme court and which rule is filed with the supreme court.”

C.P.Sup.R. 9(C) provides:

“Local rules of practice shall not be inconsistent with rules promulgated by the Supreme Court and shall be filed with the Clerk of the Supreme Court.”

. This interpretation of Civ.R. 54(D) is consistent with the view taken by the Fifth Circuit Court of Appeals in construing Fed.R.Civ.P. 54(d). See, e.g., Three-Seventy Leasing Corp. v. Ampex Corp. (C.A.5, 1976), 528 F.2d 993; Quarles v. Oxford Mun. Separate School Dist. (C.A. 5, 1989), 868 F.2d 750; and Hall v. State Farm Fire & Cos. Co. (C.A.5, 1991), 937 F.2d 210.