State v. Sewell , 2011 Ohio 5532 ( 2011 )

[Cite as State v. Sewell, 2011-Ohio-5532.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 11CA3207
v. :
: DECISION AND
Benjamin Sewell, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: October 26, 2011
________________________________________________________________
APPEARANCES:
Benjamin Sewell, Chillicothe Correctional Institution, Chillicothe, Ohio,
pro se Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
________________________________________________________________
Kline, J.:
{¶1} Benjamin Sewell appeals the trial court’s denial of his “Motion to Tax
Expenses of Defendant-Petitioner Sewell as Prevailing Party to be Paid by Plaintiff-
Respondent.” Sewell contends that the trial court should have awarded him various
“litigation expenses” as costs. Because Sewell cannot (1) provide statutory authority for
the costs he seeks to recover or (2) demonstrate that the trial court’s denial of his
motion was an abuse of discretion, we disagree. Accordingly, we affirm the judgment of
the trial court.
I.
{¶2} In June 2006, Sewell was convicted of two counts of rape. The trial court
classified him as a “sexually oriented offender” under the sex-offender-classification
Ross App. No. 11CA3207 2
scheme that was in effect at the time. In December 2007, Sewell received a NOTICE
OF NEW CLASSIFICATION AND REGISTRATION DUTIES from the Office of the Ohio
Attorney General. The notice stated that he would be reclassified as a Tier III sex
offender pursuant to SB 10, effective January 1, 2008.
{¶3} Sewell then filed a petition to challenge his new classification in the Ross
County Court of Common Pleas. The trial court denied his petition, and we affirmed the
trial court’s decision in State v. Sewell, Ross App. No. 08CA3042, 2009-Ohio-594(hereinafter “Sewell I”).
{¶4} Eventually, the Supreme Court of Ohio reversed our decision. See State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424; In re Sexual-Offender Reclassification
Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, at ¶¶15, 20. As a result, the trial court
reinstated Sewell’s original sex-offender classification.
{¶5} After the reinstatement of his original classification, Sewell filed a “Motion to
Tax Expenses of Defendant-Petitioner Sewell as Prevailing Party to Be Paid By Plaintiff-
Respondent.” In his motion, Sewell sought to recover various “litigation expenses”
under R.C. 2323.51, Civ.R. 11, and Civ.R. 54(D). The trial court denied Sewell’s
motion.
{¶6} Sewell appeals and asserts the following assignment of error: I. “THE TRIAL
COURT ERRED TO THE PREJUDICE OF APPELLANT AND/OR ABUSED ITS
DISCRETION IN DENYING APPELLANT’S MOTION TO TAX NECESSARY
LITIGATION EXPENSES AS COSTS FOLLOWING THE ENTRY OF THE SUPREME
COURT OF OHIO IN HIS FAVOR.”
II.
Ross App. No. 11CA3207 3
{¶7} In his sole assignment of error, Sewell claims that the trial court erred when it
denied his motion to tax necessary litigation expenses as costs in his favor.
{¶8} Initially, we note that, in his “Statement of the Facts and Case,” Sewell
asserts that he “seeks litigation expenses under Civ.R. 54(D), R.C. §2323.51, and
Civ.R. 11.” Appellant’s Brief at 2. In his “Law and Argument” section, however, Sewell
argues only that he is entitled to recover costs under Civ.R. 54(D). He provides no
argument or authority demonstrating that he is entitled to recover the expenses under
either R.C. 2323.51 or Civ.R. 11. An appellant’s brief must include “[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.” App.R. 16(A)(7)
(emphasis added). Because Sewell’s brief does not contain any argument that he is
entitled to relief under either R.C. 2323.51 or Civ.R. 11, we will not consider his cursory
assertion that R.C. 2323.51 and Civ.R. 11 allow him to recover his litigation expenses.
Accordingly, we examine only whether Sewell can recover his litigation expenses under
Civ.R. 54(D).
{¶9} 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.”
{¶10} Sewell argues that, because the Supreme Court of Ohio ultimately ruled in his
favor in Sewell I, he is the prevailing party in his challenge to his sex offender
reclassification. Thus, according to Sewell, the trial court erred when it denied his
motion seeking to recover various litigation expenses as costs.
Ross App. No. 11CA3207 4
{¶11} Civ.R. 54(D) “gives the trial court broad discretion to assess costs, and the
court’s ruling will not be reversed absent an abuse of that discretion.” Keaton v. Pike
Community Hosp. (1997), 124 Ohio App.3d 153, 156, citing Vance v. Roedersheimer,
64 Ohio St.3d 552, 555, 1992-Ohio-24; Gnepper v. Beegle (1992), 84 Ohio App.3d 259,
263. An abuse of discretion is more than a mere error of law; “it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),
5 Ohio St.3d 217.
{¶12} The Supreme Court of Ohio’s “interpretation of Civ.R. 54(D) is that the phrase
‘unless the court otherwise directs’ grants the [trial] court discretion to order that the
prevailing party bear all or part of his or her own costs.” Vance at 555. “To be taxable
as a cost under Civ.R. 54(D), an expense must be grounded in statute: ‘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. * * *
They are allowed only by authority of statute.’” Keaton at 156, quoting Vance at 555
(citations and internal quotation marks omitted).
{¶13} Sewell seeks to recover the following litigation expenses: “1. Court costs in
court of common pleas, $125.00; 2. Court costs in the court of appeals, $160.00; 3.
Court costs in the Supreme Court, $40.00; 4. Paralegal expenses for all three judicial
levels, $500.00; [and] 5. Copy, postage, and stationery supplies, total of $125.00[.]”
Appellant’s Brief at 7.
{¶14} Sewell admits that “some of [his] expenses, under other circumstances, may
not be appropriate as costs[.]” Appellant’s Brief at 7. He argues, however, that
Ross App. No. 11CA3207 5
because “the Attorney General of Ohio and the Prosecuting Attorney for Ross County,
Ohio, have neglected their respective responsibility, indeed, their sworn duty to guard
against encroachment from the legislative branch of government, Appellant should be
awarded his expenses as costs.” Id. at 7-8.
{¶15} Sewell provides no statutory basis demonstrating that he can recover any of
his enumerated litigation expenses under Civ.R. 54(D). Paralegal expenses are not
recoverable as costs under Civ.R. 54(D). See Abetew v. Denu, Franklin App. No.
01AP-87, 2002-Ohio-628; Vassil v. Able Fence & Guard Rail, Inc. (1992), 81 Ohio
App.3d 533, 544. Also, photocopying and postage are not recoverable under Civ.R.
54(D). See Cincinnati ex rel. Simons v. Cincinnati (1993), 86 Ohio App.3d 258, 267.
And Sewell provides no authority to show that stationery is a recoverable cost under
Civ.R. 54(D). Additionally, Sewell provides no information about what constituted his
litigation expenses in the court of common pleas, court of appeals, and the Supreme
Court of Ohio. Moreover, Sewell provides no authority to support his assertion that
these expenses are recoverable under Civ.R. 54(D).
{¶16} Finally, even assuming that there is statutory authority to support recovery of
any of Sewell’s “litigation expenses” under Civ.R. 54(D), Sewell has not shown that the
trial court abused its discretion in denying his motion. As stated above, the Supreme
Court of Ohio has made clear “that the phrase ‘unless the court otherwise directs’ grants
the [trial] court discretion to order that the prevailing party bear all or part of his or her
own costs.” Vance at 555.
{¶17} Sewell’s claim that the Attorney General and the county prosecutor neglected
their duties to guard against encroachment by the legislature is insufficient to show that
Ross App. No. 11CA3207 6
the trial court’s denial of his motion was unreasonable, arbitrary, or unconscionable.
Thus, the trial court did not abuse its discretion when it denied Sewell’s motion.
{¶18} Accordingly, we overrule Sewell’s assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 11CA3207 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.