Update: On March 12, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Isn’t each motion for summary judgment set for a non-oral hearing? So it becomes a proceeding, does it not?”

Justice French, to Vossman’s counsel

Is the deposition a proceeding or is the summary judgment a proceeding?

Justice Fischer, to AirNet’s counsel

On April 23, 2019, the Supreme Court of Ohio heard oral argument in Vossman v. AirNet Systems, Inc. et al, 2017-1688. At issue in this case is whether deposition transcripts used for summary judgment are taxable costs under Civ. R. 54(D) and R.C. 2303.21.

Case Background

Dan Vossman (“Vossman”) filed an age discrimination suit on June 15, 2011 against AirNet Systems, Inc. (“AirNet”) after AirNet terminated his 26 years of employment as a pilot. During the discovery process of the case, several depositions were taken. The trial court granted summary judgment to AirNet. Following judgment, the judge granted AirNet’s motion for costs to cover $3,641.70 for depositions. This amount included the expense of expediting two of the deposition transcripts, but did not include the court reporter fees for attending the depositions. Vossman appealed.

The Tenth District Court of Appeals affirmed the trial court’s ruling in a unanimous decision.  The court found the trial court was justified in awarding deposition transcript expenses because they were necessary to support the summary judgment motion and because Franklin County local rules require all depositions in support of or in opposition to summary judgment be filed with the motion or responsive pleadings. Vossman appealed to the Supreme Court of Ohio.

Read the oral argument preview here.

Vossman’s Proposition of Law Accepted for Review

Deposition transcript costs are not costs recoverable under Civ. R. 54(D).

Key Statutes and Precedent

Civil Rule 54(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.”)

R.C. 2303.21 (“When it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.”)

R.C. 2319.27 (governs fees of person taking a deposition)

Franklin County Court of Common Pleas Local Rules of Practice

57.02 Filing of Evidentiary Materials in Support of Motion (All affidavits, depositions, and other evidentiary material permitted by Civ. R. 56 (C) in support of or in opposition to the motion for summary judgment shall be filed with the motion or responsive pleading.)

State ex rel. Commissioners of FrankIin County v. Guilbert, 77 Ohio St. 333 (1907) (“The word ‘costs’ has a legal signification and includes only those expenditures which are by law taxable.”)

Farmer v. Arabian American Oil Co. 379 U.S. 227 (1964) (the discretion given district judges to tax costs should be sparingly exercised with references to expenses not specifically allowed by statute.)

Benda v. Fana, 10 Ohio St. 2d 259 (1967) (“‘[C]osts’ are not synonymous with expenses unless expressly made so by statute.”)

 Barrett v. Singer Co., 60 Ohio St. 2d 7 (1979) (Deposition transcripts not used at trial cannot be taxed as costs.)

Jones v. Pierson, 2 Ohio App. 3d 447 (8th Dist. 1981) (“[N]ecessary litigating expenses are taxable costs pursuant to Civ. R. 54(D); that is, as much of the funds expended by a party as are necessary and vital to the litigation must be characterized as taxable costs which will normally be awarded to the prevailing party.”)

Edison Co. v. Franklin Paper Co., 18 Ohio St. 3d 15 (1985) (“Generally, an unsuccessful litigant is not liable for the litigation expenses . . . of its adversary in the absence of a statute providing for their allowance.”)

Muze v. Mayfield, 61 Ohio St. 3d 173 (1991) (“‘Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which * * * [specified individuals] are entitled for their services in an action * * *. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. 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 * * *.’”)

Vance v. Roedersheimer, 64 Ohio St. 3d 552 (1992) (“The subject of costs is one entirely of statutory allowance and control.”)

Haller v. Borror, 107 Ohio App.3d 432 (10th Dist. 1995) (“We conclude that a court reporter fee for taking a deposition and for the resulting transcript may be taxed as costs under Civ.R. 54(D) when the action is decided on summary judgment.”)

Williamson v. Ameritech Corp., 81 Ohio St.3d 342 (1998) (RC. 2319.27 does not provide a statutory basis for taxing the services of a court reporter at a deposition as costs under Civ.R. 54(D)(syllabus).

Brodess v. Bagent, 2005-Ohio-20 (10th Dist.) (Pursuant to R.C. 2303.21 and Civ. R. 54, transcripts of depositions that are filed and used for any necessary purpose can be taxed as costs.)

Boomershine et al. v. Lifetime Capital, Inc., et al., 2009-Ohio-2736 (2nd Dist.) (deposition transcripts may be taxed as costs if they are used in support of or in opposition to a motion for summary judgment.)

At Oral Argument

Arguing Counsel

Russell A. Kelm, Law Offices of Russell A. Kelm, Columbus, for Appellant Dan W. Vossman

Gregory C. Scheiderer, Vorys, Sater, Seymour and Pease LLP, Cleveland for Appellee AirNet Systems Inc, et al.

Vossman’s Argument

This Court must solve a perplexing problem that has developed in Ohio courts as to whether deposition transcript costs are recoverable under Civ. R. 54(D). This Court has a 112-year line of unbroken precedent that in order to recover costs in a proceeding, it must be a matter of statutory allowance and control.  If a statute allows a cost to be recovered, then it can be. If the statute does not allow it, it cannot be recovered. That line of cases was upset in 1981 in Jones v. Pierson, in which the 8^th District held that if litigation costs were necessary, they were taxable even if there was no statute to support this.

The Jones decision led to widely varying interpretations of the recovery of costs, particularly deposition transcript costs at trial. This conflict appeared to be resolved once and for all in 1998 in Williamson v. Ameritrech, in which this Court held that no statute allows depositions to be recovered as taxable costs. That seemed to settle the issue once and for all. Unless deposition transcripts were used at trial, their costs could not be recovered under Civ. R. 54(D).

R.C. 2319.27 does not provide for the awarding of deposition transcript costs. So, parties and some courts, led by the 2^nd District in Boomershine et al. v. Lifetime Capital, Inc. began to use R.C. 2303.21 as a basis to allow recovery of deposition transcript costs because a deposition is a “proceeding.” These cases fail to analyze what a proceeding is. Black’s law dictionary defines a proceeding as a form and manner of conducting judicial business before a court or judicial officer. That’s not a notary taking a deposition. The very definition of a proceeding is not something conducted by a court reporter in private. A deposition with court reporters and lawyers present is not a proceeding. A trial is a proceeding. And if a transcript is read into evidence, the cost of it can be recovered. That’s uniformly been the law for a long time.

Pursuant to R.C. 2303.21, if a deposition is used as a trial transcript, the cost of it may be recovered, but just the taking of a deposition doesn’t allow its cost to be recovered. Summary judgment is not a proceeding. There’s no statute that authorizes the recovery of deposition costs unless there are trial transcripts. Unless deposition transcripts are used at trial, their cost can’t be recovered.

In this particular case, AirNet could simply have submitted affidavits instead buying the deposition transcripts and seeking the $3600 cost of those transcripts.  Sometimes trial judges use costs as a way of punishing litigants for bringing what they may think is a meritless case. This can be used very punitively against plaintiffs.

 AirNet’s Argument

The taxing of deposition transcripts has not been addressed by this Court in Williamson or in any other decision, other than this Court’s pronouncement that costs are entirely of statutory allowance and control. Williamson only addressed R.C.  2319.27. And in the syllabus of that case, the Court held that R.C. 2319.27 does not permit the taxing of the court reporter’s services at a deposition.

AirNet is not proceeding under R.C. 2319.27 but under R.C. 2303.21. R.C. 2303.21 permits the taxing of the cost of obtaining the transcript of a deposition when it’s necessary for the civil action or on appeal, when it is a transcript of a proceeding, and when it is used in evidence or for any other purpose. A deposition is a proceeding. It’s within the definition of a proceeding in the statute. And it takes place before a judicial officer. Summary judgment is also a proceeding. In this case the trial court did not abuse its discretion in finding the depositions were used for evidence or any other purpose and did not abuse its discretion in determining that the deposition transcripts were necessary.

The depositions in this case were absolutely necessary. Four of them were of current or former AirNet employees, noticed by the plaintiff. Affidavits were not a realistic alternative. The deposition transcripts were used for a dispositive motion. Four of the five were filed with the court and relied upon by the court in making its decision. The fifth was used for an “other purpose”-to prepare for trial and assess summary judgment.

It is not only individual plaintiffs who are being assessed these costs, but individual defendants and small businesses as well. A plaintiff with a meritorious claim will be awarded costs after winning and not have to pay litigation costs.

What Was On Their Minds

What’s A Proceeding?

A proceeding is certainly broader than just a trial, noted Justice French. And if every motion for summary judgment is the subject of a non-oral hearing, isn’t that a proceeding?

Depositions

Depositions were originally done at courthouses where judicial officers were called on the phone to make decisions, noted Justice Fischer. So aren’t they supervised by a judicial officer? Who decides if an objection made at a deposition is proper?

Deposition Transcripts Versus Trial Transcripts

If a deposition transcript is then used at trial, is that properly taxed, asked Justice French?

Is there a difference between a deposition transcript and a trial transcript asked Justice Stewart? How does the transcript’s character morph or change? If you get a transcript of a deposition, it is still the deposition transcript regardless of how it is used, isn’t it? What’s the purpose of having a deposition transcript if you are not going to use it in some aspect?

The Depositions in This Case

Were the five depositions in this case really necessary, asked Justice Donnelly? Couldn’t the summary judgment motion have been supported by affidavits of the employees involved? In typical litigation involving dispositive motions, defense counsel is often representing their clients not on a contingency fee basis, but are being paid for their work. In this particular case weren’t four of the depositions that were used to supplement the motion for summary judgment unnecessary? Couldn’t the evidence have been obtained simply by having the individuals fill out affidavits and support the motion that way?  If we are going to allow costs for that, it’s going to encourage defense counsel to take a more costly deposition, and they are going to get paid more, he commented, but policy-wise it’s going to shift costs to people who might not be able to afford access to courts.

What about the fact that the Franklin County Local Rules require the depositions to be filed, asked Chief Justice O’Connor?

How was the one deposition that wasn’t filed evidence, asked Justice Fischer? Was there some affidavit or something entered in the record saying that one was used for some other purpose that the statute allows?

R.C. 2303.21

Doesn’t the statute say as “evidence in such action or for any other purpose” asked Justice Fischer? Wouldn’t summary judgment be “for any other purpose”?

Under R.C. 2303.21 if the legislature had intended for deposition transcripts to count as costs couldn’t the legislature have just said that instead of saying “proceeding” or “judgment” or “exemplification,” asked Justice Stewart? She added she didn’t know if she read the statute to include deposition transcripts at all unless a deposition is found to be a proceeding or a judgment or an exemplification.

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for AirNet, but on very narrow grounds, and the cost of the fifth deposition referenced during argument which wasn’t filed with the summary judgment motion may get excluded.

I think the rule pretty clearly has always been deposition transcripts can be taxed as costs if used at trial. What is new here is to interpret the word “other proceeding” in R.C. 2303.21. While I think a majority of the justices will find that summary judgment is a proceeding, I’m not sure they are willing to find that any deposition is a proceeding. Or, the  basis for the decision could well be that the deposition transcripts were required by Franklin County Local Rules—a strong point which Mr. Scheiderer failed to make at argument, but the Chief asked about.

Mr. Kelm really seemed to annoy with his argument, even though I think he has some  valid points.  He especially got under the Chief’s skin when he suggested that judges punish litigants they don’t like by awarding costs against them. She pointedly asked him several times if that was his personal opinion, and he repeated several times that he had seen it happen. The Chief was quite visibly annoyed, but Mr. Kelm didn’t back down.

Justices Donnelly and Stewart seemed most sympathetic to Vossman’s position. Justice Donnelly noted that allowing any deposition to be taxed as a cost could actually penalize those who can’t afford access to courts (translate plaintiffs). Also, Justice Stewart threw in a cautionary quote from the U.S. Supreme Court decision in Farmer v. Arabian American Oil Co. about taxing costs sparingly. Justice Fischer also expressed concern about going too broadly here. And even though the American Rule is about attorney fees, I think anything other than a very narrow ruling here would come  dangerously close to stepping on the spirit of that rule, and be a disincentive to plaintiffs wanting to bring claims.

To Student Contributor Mark Tassone

Vossman’s counsel came out swinging with a litany of citations to the history of cases giving rise to the current dispute, illustrating a line of cases establishing that deposition transcripts were not recoverable as costs. However, a divergent line of cases has emerged.

Based on the questioning from the bench, the Court seemed skeptical of Vossman’s argument. Is summary judgement a “proceeding” within the meaning of the statute? Does the fact that there was a hearing make it a proceeding? The facts of this case do not seem to yield themselves to a holding as broad as Vossman might like.

Not only did the justices question both the legal and factual bases of Vossman’s argument, they also seemed somewhat discontented with Vossman’s counsel’s manner of answering questions. The Chief Justice seemed especially perturbed by Vossman’s counsel saying that judges assign costs as punishments to litigants. The Chief Justice repeatedly asked whether that was counsel’s opinion. She never received a direct answer.

AirNet had a far less turbulent ride. AirNet’s counsel began by establishing that at no point has this Court addressed this specific issue. While the bench did field a few questions, the Court seemed generally more receptive to AirNet’s arguments. Justice Stewart became particularly engaged. At one point she seemed to tee-up AirNet for a point to be made that the statute does permit the taxing of costs in this circumstance. The remaining questions from the bench seemed to be clearly answered by AirNet’s counsel.

I mark this as a victory for AirNet.

Student Contributor: Mark Tassone