Vance v. Roedersheimer

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Vance et al., Appellants and Cross-Appellees, v.

Roedersheimer, Appellee and Cross-Appellant.

[Cite as Vance v. Roedersheimer (1992), Ohio

St.3d .]

Civil procedure -- Attorney fees and costs -- Enforceability of

Loc.R. 2.53(Z) of the Court of Common Pleas of Montgomery

County.

(No. 91-1323 -- Submitted May 6, 1992 -- Decided

September 2, 1992.)

Appeal and Cross-Appeal from the Court of Appeals for

Montgomery County, No. CA 12370.

Appellant and cross-appellee Stanley D. Vance was injured

when his police cruiser collided with a vehicle operated by

appellee and cross-appellant, Alice Roedersheimer. Vance and

his wife, appellant and cross-appellee Beverly Vance, filed a

negligence action against Roedersheimer.1

The action was filed in the Court of Common Pleas of

Montgomery County, where Loc.R. 2.53 provides for the

compulsory arbitration of certain claims. An award rendered in

arbitration may be appealed to the court of common pleas for

trial de novo.2 The trial court issued an order requiring the

parties to arbitrate.

Following a hearing, the arbitration panel awarded Stanley

Vance $10,000 and Beverly Vance $1,000. The Vances appealed

and the case was tried before a jury. The jury returned a

verdict in favor of the Vances, but awarded Stanley only

$5,000. Beverly, although prevailing on the issues, was

awarded no damages.

Roedersheimer filed a motion seeking costs and attorney

fees as allowed under Loc.R. 2.53(Z). The trial court awarded

$2,230.10 in costs3 against the Vances, but denied attorney

fees. The Vances appealed to the court of appeals claiming

that Loc.R. 2.53(Z) contravenes Civ.R. 54(D) by permitting an

award of costs to a non-prevailing party. Roedersheimer

cross-appealed the denial of attorney fees.

The court of appeals reversed the award of costs to

Roedersheimer, finding Loc.R. 2.53 to be unconstitutional.

The court held that the definition of "costs" in Loc.R.

2.53(Z)(4) exceeds the limits imposed by Civ.R. 54(D). The

cause was remanded for consideration of an award which would

conform with the definition of "costs" 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. The Vances appeal from this judgment. The

denial of attorney fees was affirmed. Roedersheimer

cross-appeals from this judgment.

The cause is before this court pursuant to the allowance

of a motion and cross-motion to certify the record.

James A. Hensley, Jr., for appellants and cross-appellees.

John A. Smalley and Kenneth J. Ignozzi, for appellee and

cross-appellant.

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.

"* * *

"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:

"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], 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.

To 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.

FOOTNOTES:

1 Beverly Vance sought recovery against Roedersheimer for

loss of consortium.

2 See Loc.R. 2.53(S) and (W) of the Court of Common Pleas

of Montgomery County, General Division.

3 The "costs" awarded to appellee included expenses

incurred by her in having Stanley Vance independently

physically examined, in deposing the examining physician, and

in obtaining a copy of another deposition.

4 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."

5 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 & Cas. Co. (C.A.5, 1991),

937 F.2d 210.

Douglas, J., concurring in part and dissenting in part.

I concur with the disposition of the cross-appeal on the issue

of attorney fees. I do not agree with the majority's

disposition of the issues raised by appellants' appeal, or with

the majority's ultimate judgment in this matter. In its effort

to validate the Loc.R. 2.53 "compulsory arbitration" process,

the majority has compromised the purposes of the Civil Rules

and has ignored the fundamental constitutional right to trial

by jury. I, for one, cannot join the majority in its agenda in

this case.

The facts giving rise to the appeal and cross-appeal are

not complicated.

Appellant and cross-appellee Stanley D. Vance was injured

in the course of his employment as a Montgomery County

Sheriff's Deputy when his police cruiser collided with a

vehicle operated by appellee and cross-appellant, Alice

Roedersheimer (hereinafter "appellee"). In September 1989,

Vance and his wife, appellant and cross-appellee Beverly Vance

(collectively referred to as "appellants"), filed a negligence

action against appellee in the Court of Common Pleas of

Montgomery County.

Loc.R. 2.53 of the Court of Common Pleas of Montgomery

County, General Division, provides for the "compulsory

arbitration" of certain claims. An "award" rendered in the

"arbitration" proceeding may be "appealed" by either party to

the court of common pleas for a trial de novo. On December 20,

1989, the trial court issued an order requiring the parties

herein to engage in the Loc.R. 2.53 "arbitration" process.

In April 1990, the matter proceeded to a hearing before a

panel of three arbitrators (the "panel"). Following the

hearing, the panel "awarded" Stanley Vance $10,000 and Beverly

Vance $1,000 on her claim for loss of consortium. Appellants

appealed this "award" and the case was tried before a jury. On

June 27, 1990, the jury returned a verdict in favor of

appellants and against appellee, and awarded $5,000 to Stanley

Vance. Beverly Vance, although prevailing on the issues, was

awarded nothing on her consortium claim.

On July 6, 1990, appellee filed a motion with the trial

court seeking an award of costs and attorney fees pursuant to

Loc.R. 2.53(Z).6 On July 23, 1990, the trial court awarded

appellee $2,230.10 in "costs" against appellants. Appellee's

motion for attorney fees was denied. Thereafter, appellants

appealed to the court of appeals claiming that Loc.R. 2.53(Z)

contravenes Civ.R. 54(D) by permitting an award of costs to a

non-prevailing party and is, therefore, unconstitutional.7

Appellee cross-appealed, arguing that the trial court erred in

denying her motion for attorney fees.

With respect to appellants' appeal, the court of appeals,

in a divided vote, citing Centennial Ins. Co. v. Liberty Mut.

Ins. Co. (1982), 69 Ohio St.2d 50, 23 O.O.3d 88, 430 N.E.2d

925, stated that "[t]he expansive definition of 'costs'

contained in Loc.R. 2.53(Z)(4) exceeds the limitations imposed

on the word 'costs' by the Supreme Court of Ohio, the author of

Civ.R. 54(D). As such, the local rule is in conflict with

Civ.R. 54(D)." On this basis, the court of appeals reversed

the award of "costs" to appellee, finding that Loc.R. 2.53(Z)

was unconstitutional as applied. Further, the court of appeals

remanded the cause to the trial court for consideration of an

award of "costs" to appellee "which conforms with Centennial."

With respect to the cross-appeal, the court of appeals affirmed

the judgment of the trial court denying appellee's motion for

attorney fees. The cause is now before us for final

determination.

I

Appellants appeal from the judgment of the court of

appeals remanding this cause to the trial court for

consideration of an award of costs to appellee. Appellee

cross-appeals from the judgment of the court of appeals

affirming the denial of her motion for attorney fees. The

central issue in this case concerns the enforceability of

Loc.R. 2.53(Z).

Courts in this state are entitled to adopt rules

concerning local practice in their respective courts. However,

these rules may not be inconsistent with any rules governing

procedure and practice, such as the Rules of Civil Procedure,

promulgated by the Supreme Court. Section 5(B), Article IV of

the Ohio Constitution. See, also, Civ.R. 83. Therefore,

Loc.R. 2.53(Z) is unenforceable to the extent that it is

inconsistent with the Civil Rules, or any other rules

promulgated by this court governing procedure and practice.

Appellants argue that Civ.R. 54(D) authorizes a court to

award costs only to a prevailing party, and that Loc.R. 2.53(Z)

contravenes Civ.R. 54(D) by authorizing an award of costs to

appellee, a non-prevailing party. Civ.R. 54(D) provides that

"[e]xcept 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."

(Emphasis added.)

A majority of the court of appeals, in addressing

appellants' argument, determined that appellee was the

prevailing party at trial since the jury awarded appellants

less than one hundred twenty-five percent of what the

"arbitrators" had "awarded" them. See Loc.R. 2.53(Z)(1)(b).

Additionally, the court of appeals' interpretation of Civ.R.

54(D) was that the phrase "unless the court otherwise directs"

empowers a court to award costs to a non-prevailing party.

Accordingly, the court of appeals concluded that Loc.R. 2.53(Z)

is not inconsistent with Civ.R. 54(D) in permitting an award of

costs to appellee, so long as the "costs" awarded are limited

in accordance with Centennial, supra.

Conversely, Judge Brogan of the court of appeals, in a

separate analysis of the issue, determined that the language in

Civ.R. 54(D), "unless the court otherwise directs," does not

empower a court to award costs to a non-prevailing party but,

rather, grants the court discretion to order that each party

bear all or part of his or her own costs. Therefore, Judge

Brogan concluded that Loc.R. 2.53(Z) contravenes Civ.R. 54(D)

by permitting an award of costs to appellee, and that the

appropriate remedy would have been to reverse the award of

costs, rather than reversing and remanding as ordered by the

court of appeals majority. I believe that Judge Brogan was

correct in his analysis of the issue.

My interpretation of Civ.R. 54(D) is that the phrase

"unless the court otherwise directs" does not empower a court

to award costs to a non-prevailing party but, rather, grants

the court discretion to order that the prevailing party bear

all or part of his or her own costs. Civ.R. 54(D) contemplates

that an award of costs will be made (if at all) to the

prevailing party. Here, the prevailing parties8 at trial were

Stanley Vance, who received a verdict and judgment on the

primary claim, and Beverly Vance who prevailed upon the

issues. Therefore, Loc.R. 2.53(Z) is contrary to Civ.R. 54(D)

in authorizing an award of costs to appellee, the non-

prevailing party.

Accordingly, I would hold that Loc.R. 2.53(Z) could not

and cannot empower the trial court to award costs to appellee

as Civ.R. 54(D) only authorizes a court to award costs to a

prevailing party. Thus, the court of appeals reached the

proper result in reversing the award of costs to appellee.

However, the court of appeals erred (as does today's majority)

in its judgment to remand the cause to the trial court to

reconsider an award of costs to appellee, the party who did not

prevail at trial. For these reasons, and for the reason that

appellee is not entitled to attorney fees, I would affirm the

judgment of the court of appeals whereby it reverses the award

of costs to appellee and affirms the denial of attorney fees to

appellee. Upon remand to the trial court, that court should

award costs to appellants (assess the costs to appellee) or, if

the court deems it advisable, require each party to pay his own

costs. As appellants would then be afforded, in part, the

relief which they seek in their appeal to this court, I would

refrain from deciding the constitutional issue of whether

Loc.R. 2.53(Z) violates the right to trial by jury. See, e.g.,

In re Miller (1992), 63 Ohio St.3d 99, 585 N.E.2d 396

(constitutional issues are not decided where case can be

decided on other grounds); and In re Boggs (1990), 50 Ohio

St.3d 217, 553 N.E.2d 676 (same principle). However, given the

majority's disposition of the issues in this case, it becomes

necessary to address the constitutional question.

II

Today's majority finds that appellee was the prevailing

party at trial and that, therefore, Loc.R. 2.53(Z) is

consistent with Civ.R. 54(D) in permitting an award of "costs"

to appellee. In reaching this conclusion, the majority

essentially finds that the provisions of the local rule can

prescribe (or define) who is the "prevailing party" within the

meaning of Civ.R. 54(D).9 If the majority is correct that a

local rule of court can dictate who is the prevailing party for

purposes of an award of costs, then Civ.R. 54(D) will

potentially have a different meaning in every Ohio court

exercising civil jurisdiction. This is a difficult proposition

to accept (and one which I cannot accept) given the fact that

the purpose of the Civil Rules is to provide a uniform set of

rules governing civil procedure which, before today, was to be

uniformly applied throughout this state.

As if compromising the integrity of the Civil Rules were

not enough, the majority then proceeds to avoid appellants'

argument concerning the constitutionality of Loc.R. 2.53(Z),

even though the majority fails to grant appellants any relief

on the non-constitutional question concerning the conflict

between Civ.R. 54(D) and the local rule. In avoiding the

constitutional question, the majority creates a new doctrine of

judicial restraint which, when properly understood, makes no

sense whatsoever. Take the following example.

Assume a defendant is convicted for violating a criminal

statute and seeks to have the conviction set aside, claiming

(1) that there is insufficient evidence to sustain the

conviction, and (2) that the statute is unconstitutional.

Applying the doctrine of judicial restraint which the majority

today creates, if we were to find sufficient evidence to

sustain the conviction, we would refrain from addressing the

argument that the statute itself is unconstitutional. This is

not and cannot be the law, yet, in principle, that is precisely

what the majority has done here today. The reason the majority

does not decide the constitutional question properly raised by

appellants is obvious -- Loc.R. 2.53(Z) is unconstitutional and

the majority does not wish to reach that conclusion.

With regard to the constitutionality of the local rule,

the majority does offer one rather curious comment in not

addressing appellants' arguments. The majority states that

Loc.R. 2.53(Z), as limited by today's majority opinion, "* * *

has no more chilling effect [on the right to trial by jury]

than does the application of Rule 54(D) to assess costs against

any non-prevailing party." Not true! What the majority

overlooks, of course, is that appellants are found by the

majority to be non-prevailing parties for purposes of an

assessment of "costs" against them because of the local rule

which, as explained infra, penalizes appellants for exercising

their right to trial by jury.

III

The obvious purpose and effect of Loc.R. 2.53(Z) is to

create certain disincentives for a party who wishes to litigate

a determination rendered in a Loc.R. 2.53 "arbitration"

proceeding. Here, the effect of the local rule was to punish

appellants for having exercised their absolute constitutional

right to a civil jury trial by permitting an award of costs

against appellants simply because they received an award at

trial which was less than the valuation of the claim at the

Loc.R. 2.53 non-binding "arbitration" proceeding. Unlike the

majority, I am not willing to tolerate such intrusions upon the

sacred and essential right to trial by jury -- however slight,

modest or minimal that intrusion may seem to be.

Throughout our history, the right to trial by jury has

been considered the crown jewel of our liberty and, at every

turn, we must pay particular attention to jealously guard and

protect that sacred right from those among us who seek to take

it away. Appellants fell victim to appellee's negligence and

exercised their fundamental constitutional right as citizens of

this state, and of the United States, to try the case before an

impartial jury. To penalize appellants (who successfully

prosecuted their claim before a jury) for having exercised

their rights is unconscionable and unconstitutional. The

following quote has particular relevance with respect to the

rights of appellants, and of tort victims in general, and this

court's responsibility to protect those rights:

"Every year, thousands of Americans fall victim to

avoidable injuries. From drunken drivers to defective and

unreasonably dangerous products, there is a staggering toll of

individuals whose constitutionally recognized right of personal

security is violated. * * *

"These are the beneficiaries of the Seventh Amendment. To

each of them it guarantees that their right to a civil jury

trial shall be preserved. And it is a settled rule of

constitutional law, so well established and so long recognized

as to be set in stone, that any infringement of such right,

however subtle, however slight, is a violation of the

Constitution of the United States which every public official

in this country has sworn to uphold.

"Although the number of victims is large, as a percentage

of the population they are almost insignificant. They will

create no landslides and swing no elections. The politician

who seeks a platform that will ensure his continued incumbency

need not fear their wrath, for he may disregard them with

little effect upon the public opinion polls.

"But our Bill of Rights was not enacted to satisfy the

shifting whims of a constantly changing majority. The Bill of

Rights is designed to protect the misfortunate minority into

which the fickle winds of fate may blow any one of us at any

time. These are the individuals who need the protection of a

Bill of Rights. For our Constitution either protects everyone

or it protects no one, a fact that many modern politicians

cannot seem to grasp.

"* * *

"There are, unfortunately, today many who are approaching

the sacred jewel of the Seventh Amendment with covetous eye and

evil intent." (Emphasis sic.) American Jury Trial Foundation,

A Tribute to Trial by Jury (1992), at 20.

In 1937, Justice George Sutherland, in his dissent in

Assoc. Press v. Natl. Labor Relations Bd. (1937), 301 U.S. 103,

141, 57 S.Ct. 650, 659, 81 L.Ed. 953, 965, wrote that "the

saddest epitaph which can be carved in memory of a vanished

liberty is that it was lost because its possessors failed to

stretch forth a saving hand while yet there was time." As

those who are sworn to defend the Constitution of the United

States (the Seventh Amendment) and the Constitution of Ohio

(Section 5, Article I), we should be stretching forth a saving

hand to preserve the right rather than making the fatal mistake

of giving the right the back of our hand.

Today's majority permits the provisions of a local rule to

infringe upon the right to trial by jury. I am not equally

willing to allow that right to be cheapened (or made more

expensive as the case may be). Section 5, Article I of the

Ohio Constitution states that the right of trial by jury "* * *

shall be inviolate * * *." It is difficult to imagine a

statement clearer in purpose or intent. If any infringement on

the right to trial by jury is prohibited under the Seventh

Amendment to the United States Constitution, the prohibition

against infringing upon the right to trial by jury in Ohio is

even more strongly stated in Section 5, Article I of the Ohio

Constitution.

Unless a majority of this court unfolds its arms and

stretches forth a saving hand to preserve for all of us the

inestimable right to trial by jury, that precious right may be

forever lost, and the epitaph carved in memory of the vanished

liberty will be that it could have been saved had any effort

been made while there was still time. In the words of Patrick

Henry, "[t]rial by jury is the best appendage of freedom." "I

hope we shall never be induced * * * to part with that

excellent mode of trial." "Guard with jealous attention the

public liberty. Suspect every one who approaches that jewel."

3 Elliot's Debates (1836) 324, 544, 45.

For the foregoing reasons, I concur in part and dissent in

part.

Sweeney and Resnick, JJ., concur in the foregoing opinion.

FOOTNOTES:

6 Loc.R. 2.53(Z) provides, in part:

"Award of Reasonable Attorney's Fees and Costs to Appellee

"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:

"* * *

"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.

"2. An award of reasonable attorney's fees and costs may

be made pursuant to division (1) of this section upon the

Motion of a party within fourteen days after the jury's verdict

or the Court's order in the action, and before the entry of

judgment. Upon Motion, the Court shall:

"a. Set the matter for hearing;

"b. Give notice of the time and date of the hearing to

the parties involved and their counsel of record;

"c. Allow the parties involved to present relevant

evidence at the hearing.

"3. In determining whether to award attorney's fees and

costs pursuant to division (1) of this section and the amount

thereof, if any, the Court shall consider all of the following

factors:

"a. The number of parties and claims for relief in the

action;

"b. The complexity of the issues in the action;

"c. Whether or not liability was clear;

"d. Any other matters relating to the merits, the amount

of attorney's fees paid or agreed to, and advisability of the

appeal of the arbitration order.

"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."

7 Appellants also claimed that Loc.R. 2.53(Z) violates the

right to trial by jury under the Ohio and United States

Constitutions.

8 Black's Law Dictionary (6 Ed. 1990) 1188, defines

"prevailing party," in part, as follows:

"The party to a suit who successfully prosecutes the

action or successfully defends against it, prevailing on the

main issue, even though not necessarily to the extent of his

original contention. The one in whose favor the decision or

verdict is rendered and judgment entered. * * * This may be

the party prevailing in interest, and not necessarily the

prevailing person. To be such does not depend upon the degree

of success at different stages of the suit, but whether, at the

end of the suit, or other proceeding, the party who has made a

claim against the other, has successfully maintained it.

"As used in Federal Civil Procedure Rule 54(d), which

provides that costs shall be allowed as of course to prevailing

party unless court otherwise directs, 'prevailing party' means

a party who has obtained some relief in an action, even if that

party has not sustained all of his or her claims. * * *"

(Emphasis added.)

9 The majority states that "[t]he 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." The

fact of the matter is that appellants are, by definition, the

prevailing parties in this case. See fn. 3, supra. Further,

by a simple reading of the definitions of the terms "appeal,"

"arbitration," "award" and "de novo trial," the internal

inconsistencies of Loc.R. 2.53 (and the majority opinion)

become clear. The terms "appeal," "arbitration" and "de novo

trial" are defined in Black's Law Dictionary, supra, at 96, 105

and 435, respectively:

"Appeal. Resort to a superior (i.e. appellate) court to

review the decision of an inferior (i.e. trial) court or

administrative agency. * * *" (Emphasis added.)

"Arbitration * * *. A process of dispute resolution in

which a neutral third party (arbitrator) renders a decision

after a hearing at which both parties have an opportunity to be

heard. * * * An arrangement for taking and abiding by the

judgment of selected persons in some disputed matter, instead

of carrying it to established tribunals of justice, and is

intended to avoid the formalities, the delay, the expense and

vexation of ordinary litigation. * * *" (Emphasis added.)

"De novo trial. Trying a matter anew; the same as if it

had not been heard before and as if no decision had been

previously rendered. * * *" (Emphasis added.)

"Award" is defined in Webster's Third New International

Dictionary (1986) 152, as "a judgment * * * or final

decision[.]"

Applying these definitions to Loc.R. 2.53, it becomes

obvious that the proceeding provided for in the rule is not

arbitration because the parties are not required to abide by

the judgment of the selected persons, nor does the proceeding

prevent ordinary litigation; that the decision emanating from

the proceeding is not final and, therefore, that judgment does

not result in an "award"; that a hearing of the matter in the

common pleas court is really not an "appeal" because (1) the

board (arbitration panel) is not an inferior court or

administrative agency, and (2) the action must have originated

in the common pleas court before Loc.R. 2.53 becomes effective

and, therefore, there cannot be an "appeal" from a court to

itself; and finally, that since the rule provides for a "de

novo trial," that clearly means it is as though there had been

no prior proceeding and thus no "award." See R.C. Chapter 2711

and Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708,

590 N.E.2d 1242.

It is also curious that the majority does not address the

issue of what its decision would be if appellants had obtained

a jury verdict of $10,001, or even $11,500. Would the majority

then say that the appellants had prevailed or do they only

prevail if their verdict is $12,501? What if the verdict is

exactly $12,500? Are appellants prevailing parties?

It is not difficult to see why the majority decision is so

facile. The so-called award rendered in the Loc. R. 2.53

proceeding was not binding upon the rights of the parties, yet

the majority implies that the non-binding proceeding had

binding effect on the prevailing-party issue. Part of the

majority's confusion can be attributed to a complete lack of

understanding of the arbitration system of dispute resolution

and the ignoring of the constitutional rights of the citizens

of this state.