State v. Netherland , 2011 Ohio 5536 ( 2011 )

[Cite as State v. Netherland, 2011-Ohio-5536.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 11CA3208
v. :
: DECISION AND
David Netherland, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed: October 26, 2011
________________________________________________________________
APPEARANCES:
David Netherland, 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} David Netherland appeals the trial court’s denial of his “Motion to Tax
Expenses of Defendant-Petitioner Netherland as Prevailing Party to be Paid by Plaintiff-
Respondent.” Netherland contends that the trial court should have awarded him various
“litigation expenses” as costs. Because Netherland 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 December 1997, Netherland was convicted of one count of rape and one
count of sexual battery. The trial court classified him as a “sexually oriented offender”
Ross App. No. 11CA3208 2
under the sex-offender-classification scheme that was in effect at the time. In
December 2007, Netherland 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. Under
the new classification, Netherland was subject to registration every ninety days for the
remainder of his life and to the community notification provisions of Section 2950.11.
{¶3} Netherland 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. Netherland, Ross App. No. 08CA3043, 2008-Ohio-7007(hereinafter “Netherland 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, 16. As a result, the trial court
reinstated Netherland’s original sex-offender classification.
{¶5} After the reinstatement of his original classification, Netherland filed a “Motion
to Tax Expenses of Defendant-Petitioner Netherland as Prevailing Party to Be Paid By
Plaintiff-Respondent.” In his motion, Netherland sought to recover various “litigation
expenses” under R.C. 2323.51, Civ.R. 11, and Civ.R. 54(D). The trial court denied
Netherland’s motion.
{¶6} Netherland 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
Ross App. No. 11CA3208 3
LITIGATION EXPENSES AS COSTS FOLLOWING THE ENTRY OF THE SUPREME
COURT OF OHIO IN HIS FAVOR.”
II.
{¶7} In his sole assignment of error, Netherland 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,” Netherland
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,
Netherland 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 Netherland’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 Netherland 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.”
Ross App. No. 11CA3208 4
{¶10} Netherland argues that, because the Supreme Court of Ohio ultimately ruled
in his favor in Netherland I, he is the prevailing party in his challenge to his sex offender
reclassification. Thus, according to Netherland, the trial court erred when it denied his
motion seeking to recover various litigation expenses as costs.
{¶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} Netherland 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
Ross App. No. 11CA3208 5
levels, $500.00; [and] 5. Copy, postage, and stationery supplies, total of $125.00[.]”
Appellant’s Brief at 7.
{¶14} Netherland admits that “some of [his] expenses, under other circumstances,
may not be appropriate as costs[.]” Appellant’s Brief at 7. He argues, however, that
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} Netherland 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 Netherland provides no authority to show that stationery is a recoverable cost
under Civ.R. 54(D). Additionally, Netherland 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, Netherland 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 Netherland’s “litigation expenses” under Civ.R. 54(D), Netherland 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
Ross App. No. 11CA3208 6
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} Netherland’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 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
Netherland’s motion.
{¶18} Accordingly, we overrule Netherland’s assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 11CA3208 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.