Jones v. Pierson , 2 Ohio App. 3d 447 ( 1981 )

After appellant had been awarded judgment for $725, she requested that the trial court tax as costs $990.85, including $682.50 for a private court reporter and $308.35 for two depositions. I concur in this court's judgment that the trial court did not err in denying appellant's request. However, I respectfully disagree with the reasoning relied upon by the majority.

While I agree that recent decisional law affords a trial court discretion to award some expenses outside the traditional definition as costs in a civil case, I am convinced that such discretion is limited and is to be exercised sparingly, so as not to encourage the unbridled escalation of litigation costs. I find the reasoning of the United States Supreme Court persuasive:

"* * * We do not read * * * [Fed.R.Civ.P. 54(d)] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence that are willing, if not indeed anxious, to allow litigation costs so high as to discourage litigants from bringing law-suits, no matter how meritorious they might in good faith believe their claims to be. Therefore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute. Such a restrained administration of the Rule is in harmony with our national policy of reducing insofar as possible the burdensome cost of litigation. * * *" Farmer v. Arabian American Oil Co. (1964), 379 U.S. 227, 235.

The considerations articulated by the Supreme Court, moreover, find ample reflection in Ohio's statutes, rules and decisional law. Ohio's Civil Rules, for example, expressly emphasize the goal of eliminating unnecessary expense. Civ. R. 1(B). Ohio's decisional law discourages the award of personal expenses as costs, preferring that a party recover personal expenses, if at all, as damages, New York, Chicago St. Louis RR. Co. v. Grodek (1933), 127 Ohio St. 22, or in an action for malicious prosecution, Pope v. Pollock (1889), 46 Ohio St. 367. In Ohio, therefore, the trial court's discretion to award personal expenses as costs in a civil case is limited. Absent authorization by statute, civil rule, or decisional rule, the court may award personal expenses as costs only when "overriding considerations" render the award necessary to effect justice.¹ Barrett v. Singer Co. (1979), 60 Ohio St.2d 7, 9 [14 O.O.3d 122]. See, also, Thornton v. Mid America Finance Loan Co. (1964), 8 Ohio App.2d 229 [29 O.O.2d 312]; Welter v.Welter (Cuyahoga C.P. 1971), 27 Ohio Misc. 44 [55 O.O.2d 302]. An award of personal expenses unjustified by overriding considerations constitutes an abuse of the court's discretion.

The Cleveland Municipal Court has no duty to provide an official court reporter in civil cases. R.C. 1901.32(F) renders the appointment of an official court reporter discretionary, providing that, "[i]n the Cleveland Municipal Court, the presiding judge may appoint such official court reporters for the civil branch of the court, as the business of the court requires * * *" (emphasis added). See, also, R.C. 1901.33. Cf. R.C.2301.18. The constitutional considerations that require the availability of an official transcript in a criminal case,² moreover, are not present in the usual civil case. See, e.g.,Griffin v. Illinois (1956), 351 U.S. 12 (possibility of criminal conviction and incarceration); Mayer v. Chicago (1971),404 U.S. 189 (possibility of criminal conviction and imposition of fine);State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 8 [15 O.O.3d 3] (possibility of permanent, involuntary termination of parental rights, i.e., of the "fundamental, privacy-oriented right of personal choice in family matters * * *"). The cleveland Municipal Court, in other words, has neither a constitutional nor a statutory duty to provide an official court reporter.

I agree that the Cleveland Municipal Court may appoint an official court reporter "* * * on a full-time, per diem, or contractual basis, * * *" R.C. 1901.32(F). In light of the following practical difficulties, however, I am reluctant to impose, without constitutional or statutory basis, a mandatory duty to do so. When the Cleveland Municipal Court appoints an official court reporter, his compensation, regardless of the basis on which he has been appointed, is payable from the city and county treasuries. Id. See, also, R.C. 1901.33. The clerk must thereafter tax "* * * for each day's services of such reporter a fee in the same amount as may be taxed for such services in the court of common pleas under section 2301.21 of the Revised Code, * * *" and the clerk must pay the fees so collected quarterly into the city and county treasuries. R.C.1901.32(F). See, also, R.C. 1901.21 (rendering R.C. 2301.21 applicable to municipal courts generally). The clerk, in other words, may tax only eight dollars per day for each day's services. R.C. 2301.21. Because it is unlikely that the Cleveland Municipal Court can obtain the services of a court reporter on a per diem or contractual basis for eight dollars per day,³ the city and county treasuries must make up the balance. The majority, in other words, without constitutional or statutory basis, effectively imposes substantial expenses upon an already financially troubled city. Even if the majority were prepared to permit taxation of the entire amount charged by the court reporter, notwithstanding the express language of R.C. 1901.32(F) and R.C. 2301.21, moreover, it would impose substantial, and perhaps prohibitive, expenses on a nonprevailing party. The kinds of civil cases pursued in municipal courts, in other words, render it likely that the costs assessed would exceed the amount of the claim or judgment. Such a prospect might well have a chilling effect upon a party who sincerely believes he has a meritorious claim or defense.

For the reasons adduced above, I believe that, when a municipal court does not provide an official court reporter in civil cases, a private court reporter's attendance fees are personal expenses which must be borne by the party incurring them.⁴ Absent the presence of overriding considerations, the fees of a private court reporter may not be taxed as costs in a civil case.

Because the Cleveland Municipal Court does not provide an official court reporter in civil cases, and because a party who desires a court reporter's attendance at trial bears responsibility for arranging it, the reporter's fees in the case at bar are personal expenses. The record, moreover, does not demonstrate the presence of overriding considerations. On the contrary, the record discloses that the trial was brief, the witnesses were few, the issues were not complex, and the probability of disagreement over testimony was minimal. The trial court, therefore, did not err in refusing to tax the private court reporter's attendance fees as costs.

Accordingly, I concur in the judgment only.

¹ The court's limited discretion to award personal expenses as costs does not, absent statutory authorization, extend to attorney's fees. Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177 [75 O.O.2d 224].

² The requirement is not absolute, even in criminal cases. See, e.g., Draper v. Washington (1963), 372 U.S. 487, 495, holding that:

"* * * Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. * * *"

³ See, for example, the amounts charged appellant by her private court reporter:

"Attendance of Reporter, Trial, didn't go forward, 1/9/80 — 35.00

"Attendance of Reporter, Trial 1/28/80 — 1/31/80 — 647.50"

⁴ A party who wishes to litigate a civil action in a municipal court and who does not wish to incur the personal expense of a private court reporter may, if he subsequently appeals, use "* * * a statement of the evidence or proceedings * * *," App. R. 9(C).