[Cite as Quinlan v. Highfield , 2019-Ohio-4566.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

RONALD E. QUINLAN, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : MATTHEW S. HIGHFIELD, et al., : Case No. CT2019-0043 : Defendants - Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC2017-0106

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: November 5, 2019

APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee Matthew Highfie ld ROBERT G. MCCLELLAND DONALD WILEY Graham & Graham., L.P.A. Baker, Dublikar, Beck, Wiley & Mathew s P.O. Box 340 400 South Main Street Zanesville, Ohio 43702-0340 North Canton, Ohio 44720

For Defendant- Appellee Allstate Fire and Casualty Insurance Company EDWIN J. HOLLERN Hollern & Associates 522 N. State Street, Suite A Westerville, Ohio 43082Muskingum County, Case No. CT2019-0043 2

Baldwin, J. STATEMENT OF FACTS AND THE CASE {¶1} Appellant was stopped in traffic while driving in Zanesville, O hio and a vehicle driven by Appellee Highfield collided into the rear of Appellant's vehicle, causing damage to both vehicles. {¶2} Appellant went to the Zanesville Medical Center due to pain in his neck and back. At the medical center Appellant was evaluated by William Anderson, a chiropractor, and was diagnosed with cervical sprain, thoracic and lumbar spr ain/strain, thoracic/lumbrosacral neuritis and muscle spasms. He was placed in a course of treatment consisting of chiropractic manipulations, manual ther apy, traction and electrical stimulation. Appellant received twenty-two treatments, with tre atment terminating on July 16, 2015. He incurred a bill of $3,762.00 for his care and trea tment at the Zanesville Medical Center. {¶3} Appellant filed the instant lawsuit against Appellee Highfield and Appellee Allstate, his own uninsurance/underinsurance carrier. The compl aint alleged Appellant sustained personal injury as a result of Highfield's negligence , and sought both economic and non-economic damages. {¶4} The jury returned a verdict in favor of Appellees, finding by s pecial interrogatory the accident was not the proximate cause of Appel lant's injuries. The court entered judgment in accordance with the jury's verdict by judgm ent filed April 2, 2018. Appellant's motions for JNOV and new trial were overruled by th e trial court on April 11,

2018.Muskingum County, Case No. CT2019-0043 3

{¶5} Appellant appealed the judgments, and, in Quinlan v. Highfield , 5th Dist. Muskingum No. CT2018-0030, 2018-Ohio-4096, ¶ 29 we reversed the judgment of the Muskingum County Common Pleas Court and remanded to that court for a new trial. {¶6} That trial concluded on April 29, 2019 with a jury verdict in f avor of Appellant and an award of $3,762.00 for economic damages and $0.00 for no n-economic damages. The trial court’s journal entry recites the jury’s verdict and orders “Costs to be paid by Plaintiff” without explanation. Appellant filed a motion to ta x costs to Appellee Highfield and Appellee responded. The trial court denied the motion with out explanation on May 22, 2019. {¶7} Appellant filed a timely notice of appeal and submitted one ass ignment of

error: {¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF/APPELLANT'S MOTION TO TAX COSTS.” STANDARD OF REVIEW {¶9} The Ohio Supreme Court has recognized that the recovery of cost s provided in Civ.R. 54(D) is not a grant of absolute right for c ourt costs to be allowed to the prevailing party. State ex rel. Gravill v. Fuerst, 24 Ohio St.3d 12, 13, 492 N.E.2d 809 (1986). The phrase “unless the court otherwise directs” is inte rpreted to grant “the court discretion to order that the prevailing party bear all or part of his or her own costs.” Vance

v. Roedersheimer , 64 Ohio St.3d 552, 555, 597 N.E.2d 153 (1992). Therefore, suc h a

decision will not be disturbed o n appeal absent an abuse of dis cretion. Holmes Cty. Bd. of Commrs. v. McDowell , 169 Ohio App.3d 120, 2006-Ohio-5017, 862 N.E.2d 136, ¶ 43 (5th Dist.). In order to find an abuse of discretion, we must d etermine the trial court'sMuskingum County, Case No. CT2019-0043 4

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

ANALYSIS {¶10} The pertinent portion of Civ.R. 54(D) states “***costs shall be allowed to the prevailing party unless the court otherwise directs. The trial court has discretion with regard to awarding costs, but “ a trial court will be found to h ave abused its discretion when it declines to award costs to a prevailing party absent an expl anation.” (Citations omitted.) Lofino Properties, L.L.C. v. Wal Mart Stores, Inc., 2nd Dist. Greene No. 2003 CA 57, 2004-Ohio-458, ¶ 30. See also Vilagi v. Allstate Indemn . Co., 9th Dist. Lorain App. No. 03CA008407, 2004-Ohio-4728, 2004 WL 1969402, at ¶ 25–30. {¶11} In the case sub judice, Appellant was the prevailing party. Th e United States Supreme Court has defined a “prevailing party” as one wh o has been awarded at least some relief on the merits of his claims. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 603–604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), quoting Hewitt v. Helms , 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (2001). Moreover, it is axiomatic that a party who received a jury verd ict in his favor and was awarded damages, no matter how small, has prevailed in the suit. See, e.g., Wigglesworth v. St. Joseph Riverside Hosp. (2001), 143 Ohio App.3d 143, 150–51, 757 N.E.2d 810 (noting that “[d]espite the fact that the verdict was actually for zero dollars, appellant successfully m aintained his claim and prevailed on the main issue; appellee was liable * * * [on the claim, therefore], appellant is the prevailing party.”); Brinn v. Cutter (Dec. 9, 1993),Muskingum County, Case No. CT2019-0043 5

8th Dist. No. 63669, at *7 (concluding that plaintiffs in negli gence case were the “prevailing party” when they were awarded only ten dollars in damages after rejecting a $500 settlement offer).

Haynes v. Christian , 9th Dist. Summit No. 24556, 2009-Ohio-3973, ¶ 6. {¶12} We have found that the fact that the jury awarded less than wha t had been offered does not prevent the plaintiff from being a prevailing party. Falther v. Toney, 5th Dist. Fairfield No. 05 CA 32, 2005-Ohio-5954, ¶ 28. {¶13} In the case sub judice, the Appellant prevailed upon his claim for damages and the fact that the award was less than the demand does not c hange that result. Appellee has suggested that a significantly higher offer was ma de and the fact that the verdict was for a lesser amount supports a finding that the App ellant was not the prevailing party. That offer is not part of the record, so we may not con sider it. Even if it was part of the record, the Appellant would still be the prevailing part y based upon our holding in Falter, Id. {¶14} The Appellant was presumed to be entitled to its costs, and any deviation from that presumption must be supported by explanation. The tr ial court did not provide its rationale for taxing costs to Appellant in its initial judg ment or in its denial of Appellant's Motion to Tax Costs. Appellee relies upon the decision in Vance v. Roedersheimer , 64 Ohio St.3d 552, 1992-Ohio-24, 597 N.E.2d 153 (1992) contending that the trial court’s decision was supported by the record. Appellant’s argument requ ires a finding that the record reflects an offer in excess of the jury’s verdict, but, as noted above, that detail is not part of the record. Even if the offer was in the record, Vance is inapposite “ because

Vance involved an arbitration award rather than a settlement offer.” Falther, supra at ¶Muskingum County, Case No. CT2019-0043 6

28. The same analysis and the same result applies to the case before us because the case involves an alleged settlement offer and not an arbitratio n award. Further, “ Vance does not permit the trial court to exercise its discretion to d etermine which party is the prevailing party or to award court costs to the non-prevailing party.” Day v. Meijer, Inc., 10th Dist. Franklin No. 99AP-984, 2000 WL 726688, *2 (June 6, 2 000). {¶15} Appellee cites Naples v. Kinczel, 8th Dist. Cuyahoga No. 89138, 2007-Ohio4851, but his citation is incomplete, as the paragraph followin g the portion that Appellee cites lists pertinent factors that should not be considered whe n the trial court exercises its

discretion: This court has also identified factors that a district court sh ould ignore when determining whether to exercise its discretion and deny costs. Examples of inappropriate factors include the size of a successful litigant's recovery , and the ability of the prevailing party to pay his or her costs . Other courts have identified factors that may be considered but, in the abse nce of other relevant factors, do not warrant an exercise of discretion unde r Rule 54(d). An example of a relevant but insufficient basis for denying cos ts is the good faith a losing party demonstrates in filing, prosecuting or def ending an action. Another is the propriety with which the losing party co nducts the litigation. (Emphasis added.)

Id

, at ¶ 4. {¶16} The Appellee purports to submit the conclusion reached by the c ourt in Naples, but we find that Appellee has omitted a significant portion of the relevantMuskingum County, Case No. CT2019-0043 7

paragraph that immediately follows that portion cited by Appell ee. The court in Naples

concluded: The trial court may, in its discretion, deny costs to the preva iling party or otherwise allocate costs, where an expense is unusual in type o r amount, where because of the prevailing party's conduct it is inequitab le to assess against the non-prevailing party, or where the circumstances ot herwise reasonably dictate.

Naples , ¶ 5. {¶17} We have reviewed the record presented to us and we have found n othing to indicate there was an expense that was unusual in type or am ount, that prevailing party’s conduct made it inequitable to assess against the non-p revailing party or any other circumstance that would support assessing the costs to Appellan t. While the amount of the judgment may be less than what was sought by Appellant, we are unwilling to characterize it as insignificant. {¶18} Appellee suggests that the rational for the trial court’s decis ion is clear on the fact of the record, but, aside from the comment regarding t he size of the award, Appellee has not cited any portion of the record in support of such a finding. As noted above, our review of the record has not disclosed support for t he trial court’s award of costs. Further, we note that Appellee has not contended that th e items submitted by Appellant to be charged as costs are excessive or that they sho uld not be characterized as costs that are recoverable under Civ.R. 54(D). {¶19} We find that the trial court abused its discretion by ordering that the prevailing party must pay costs a nd by denying Appellant’s moti on to tax costs. WeMuskingum County, Case No. CT2019-0043 8

further hold that Appellant is entitled to an order awarding hi m costs, and, therefore, we reverse the decisions of the Muskingum County Court of Common P leas that ordered Appellant to pay costs and denied his motion to tax costs. We further order that the Muskingum County Court of Common Pleas enter an order awarding costs to Appellant.

By: Baldwin, J. Delaney, P.J. and Wise, Earle, J. concur.