[Cite as Vossman v. AirNet Sys., Inc., 2017-Ohio-2872.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Dan W. Vossman, : 

 

 Plaintiff-Appellant, : No. 16AP-739 

 (C.P.C. No. 11CV-7360) 

v. : 

 (REGULAR CALENDAR) 

AirNet Systems, Inc. et al., : 

 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on May 18, 2017 

 

On brief: Law Offices of Russell A. Kelm, Russell A. Kelm, 

and Colleen M. Koehler, for appellant. Argued: Russell A. 

Kelm. 

On brief: Vorys, Sater, Seymour and Pease, LLP, David A. 

Campbell, and Gregory C. Scheiderer, for appellees. 

Argued: Gregory C. Scheiderer. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} Dan W. Vossman, plaintiff-appellant, appeals from the judgment of the 

Franklin County Court of Common Pleas, in which the court entered a final judgment 

awarding deposition transcript expenses as costs to Airnet Systems, Inc. ("Airnet"), Quinn 

Hamon ("Hamon"), and Thomas Schaner, defendants-appellees. 

{¶ 2} Many of the factual details in this matter are not germane to the issues in 

the present appeal, so only a general recitation of the underlying facts is necessary. On 

June 5, 2011, appellant, a pilot with Airnet, filed an age discrimination action against 

appellees. Both parties took several depositions. On October 19, 2012, the trial court 
No. 16AP-739 2 

granted summary judgment to appellees. This court affirmed in Vossman v. AirNet Sys., 

Inc., 10th Dist. No. 12AP-971, 2013-Ohio-4675. On November 1, 2012, Airnet filed a 

motion for approval of bill of costs, seeking to tax as costs $3,641.70 for the transcripts of 

the depositions of appellant and four of Airnet's employees, including Hamon. On 

October 19, 2016, the trial court granted the motion for costs in its entirety. Appellant 

appeals the judgment of the trial court, asserting the following assignment of error: 

THE TRIAL COURT ERRED IN AWARDING DEPOSITION 

TRANSCRIPT EXPENSES AS COSTS UNDER CIVIL RULE 

54 (D). 

{¶ 3} Appellant argues in his assignment of error that the trial court erred when it 

awarded deposition transcript expenses as costs under Civ.R. 54(D). Civ.R. 54(D) 

provides the following: 

Costs. Except when express provision therefore is made either 

in a statute or in these rules, costs shall be allowed to the 

prevailing party unless the court otherwise directs. 

{¶ 4} Costs are generally 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. Vance v. Roedersheimer, 64 

Ohio St.3d 552, 555 (1992). Thus, in order to be taxable as a cost, pursuant to Civ.R. 

54(D), the expense must be grounded in statute. Nithiananthan v. Toirac, 12th Dist. No. 

CA2014-02-021, 2015-Ohio-1416, ¶ 89, citing Smallwood v. State, 12th Dist. No. CA2011-

02-021, 2011-Ohio-3910, ¶ 10. Whether a litigation expense is a cost contemplated within 

Civ.R. 54(D) is a question of law and subject to de novo review. Id., citing Smith v. 

Pennington, 12th Dist. No. CA2010-03-071, 2010-Ohio-4570, ¶ 8. However, an appellate 

court cannot reverse a lower court's decision regarding the allocation of costs absent an 

abuse of discretion. Id., citing Hendricks v. Evertz Technology Serv. U.S.A., Inc., 12th 

Dist. No. CA2011-10-188, 2012-Ohio-2252, ¶ 7. 

{¶ 5} In the present case, appellant's argument centers on the Supreme Court of 

Ohio's decision in Williamson v. Ameritech Corp., 81 Ohio St.3d 342 (1998) 

("Williamson"). In Williamson, the plaintiffs sued the defendants for age discrimination. 

The jury found in favor of the defendants, and the defendants moved for an award of costs 

under Civ.R. 54(D). The trial court granted the motion in part, awarding costs for 
No. 16AP-739 3 

transcripts of the depositions of witnesses who testified at the trial and costs for expedited 

trial transcripts. On appeal, this court affirmed in Williamson v. Ameritech Corp., 10th 

Dist. No. 96APE07-860 (Dec. 24, 1996). With regard to the depositions, we found that 

"[t]he statutory basis for taxing the expense of the services of a court reporter at a 

deposition and the production of a transcript as a cost under Civ.R. 54(D) is R.C. 

2319.27." Id., citing In re Election of November 6, 1990 for the Office of Atty. Gen. of 

Ohio, 62 Ohio St.3d 1, 4 (1991); Miller v. Gustus, 90 Ohio App.3d 622, 625 (10th 

Dist.1993); Haller v. Borror, 107 Ohio App.3d 432, 438 (10th Dist.1993); and Springer v. 

Emerson Elec. Co., 8th Dist. No. 67705 (Sept. 14, 1995) (holding that R.C. 2319.27 

provides for the court reporter fees for taking a deposition to be taxed as costs). We found 

that, although courts have limited the right to recover deposition expenses under Civ.R. 

54(D) to when the depositions are used at trial, the record on appeal did not contain a 

transcript of the trial rendering us unable to independently review the use that was made 

of the depositions at trial. Thus, we found the plaintiffs failed to meet their burden of 

proving the trial court erred in awarding the defendants the expense relating to the 

depositions. 

{¶ 6} On appeal to the Supreme Court, that court reversed, finding that "there is 

neither general statutory authority empowering a trial court to award deposition expenses 

to a prevailing party nor a specific statutory mandate permitting the award in this case." 

Williamson at 343. The court found that the categories of litigation expenses comprising 

"costs" allowed to the prevailing party under Civ.R. 54(D) was limited. The court stated 

that " '[c]osts are generally defined as 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.' " (Emphasis sic.) Id., quoting Benda v. Fana, 10 

Ohio St.2d 259 (1967), paragraph one of the syllabus. The court then summarized R.C. 

2319.27, finding it sets parameters regarding what a person authorized to take depositions 

may charge in relation to his or her services and delineates specific means that such 

persons may employ in collecting payment. Id. at 344. The statute, therefore, satisfied the 

court's first requirement in Benda, that costs be statutory fees to which officers, witnesses, 

jurors, and others are entitled for their services in an action, but nothing in R.C. 2319.27, 

satisfied the second requirement of Benda, that the authority to tax and include 
No. 16AP-739 4 

deposition costs in a judgment was statutory. The court found there is no statute 

authorizing the deposition expenses to be taxed and included in the judgment. Id. at 345. 

Thus, the Supreme Court held that this court erred when it concluded the trial court had 

authority to tax, as costs, court reporter fees related to Ameritech's taking of depositions. 

The court concluded that "R.C. 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)." Id.

{¶ 7} In the present case, appellant relies on the passage in Williamson—in which 

the court stated there was no general or specific statutory authority empowering a trial 

court to award deposition expenses to a prevailing party—to argue that there is no 

statutory authority in the present case to award the cost of the deposition transcripts. In 

response, appellees claim R.C. 2303.21 provides the necessary statutory allowance for the 

award of the cost of deposition transcripts. R.C. 2303.21, which is entitled "Expenses of 

transcript or exemplification shall be taxed in costs," provides: 

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. 

Appellant contends that R.C. 2303.21 does not provide the requisite statutory authority 

to award deposition transcript expenses as costs because R.C. 2303.21 never uses the 

word "deposition," and a "proceeding" must be judicial business conducted before a court 

or judicial officer, which a deposition is not. 

{¶ 8} We find Williamson inapplicable to the present circumstances. Williamson

specifically limited its opinion to whether R.C. 2319.27 provides statutory authority to 

award as costs the fees of a court reporter at a deposition. R.C. 2319.27 is the only statute 

addressed and examined in Williamson as being potentially applicable to that case, and 

the court's ultimate holding addressed only R.C. 2319.27. The court held, "[w]e conclude 

that R.C. 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)." Id. at 354. Nowhere in Williamson

did the court address R.C. 2303.21. 

{¶ 9} Furthermore, the court in Williamson did not find that there existed no 

statutory authority for awarding deposition transcript expenses as costs. Although 
No. 16AP-739 5 

appellant points to the introductory sentence in Williamson that "there is neither general 

statutory authority empowering a trial court to award deposition expenses to a prevailing 

party nor a specific statutory mandate permitting the award in this case," id. at 343, to 

support its proposition that the court in Williamson impliedly found that R.C. 2303.21 

does not permit an award in this case, we find this reliance flawed. In discussing 

"deposition expenses," the court in Williamson was addressing only the fees for court 

reporter services at a deposition. The court in Williamson was not examining the costs of 

deposition transcripts. The specific question certified before the court in Williamson was 

" 'whether expenses related to the taking of a deposition are "costs" within the meaning of 

Civ.R. 54(D).' " Williamson v. Ameritech Corp., 78 Ohio St.3d 1454 (1997). Here, 

appellant neither sought an award of costs under R.C. 2319.27 nor sought an award of 

costs for court reporter fees. Instead, appellant seeks costs for deposition transcripts 

under R.C. 2303.21. Therefore, the holding in Williamson is inapplicable to the present 

case. 

{¶ 10} Other courts are in accord with our analysis above. In Boomershine v. 

Lifetime Capital, Inc., 182 Ohio App.3d 495, 2009-Ohio-2736 (2d Dist.), the Second 

District Court of Appeals, citing Keaton v. Pike Comm. Hosp., 124 Ohio App.3d 153 (4th 

Dist.1997), held that deposition transcript expenses may be awarded as costs if they are 

used to support or oppose a motion for summary judgment, based on R.C. 2303.21 and 

Civ.R. 54(D). Id. at ¶ 13. The court reasoned that the "evidence" referred to in Civ.R. 

56(C) includes "depositions," "affidavits," and "transcript of evidence," the "costs" of 

which may, pursuant to the trial court's discretion, be taxed to a non-prevailing party. Id. 

The court also distinguished Williamson, finding that the question in Williamson was 

whether R.C. 2319.27 provided a statutory basis to tax as costs the services of a court 

reporter at a deposition, while the issue in Boomershine was whether R.C. 2303.21 

provided a statutory basis to recover expenses incurred to obtain a transcript of a 

deposition. Id. at ¶ 9. 

{¶ 11} The court in Boomershine at ¶ 11 further reasoned that the expenses 

incurred to obtain transcripts were "necessary" because: (1) Montgomery County Loc.R. 

2.09(IV) required that a deposition transcript be filed when needed "for consideration of a 

motion in the proceeding," citing Jackson v. Sunforest OB-GYN Assocs. Inc., 6th. Dist. 
No. 16AP-739 6 

No. L-08-1133, 2008-Ohio-6170, ¶ 8 (stating that, because a local rule required it, the cost 

of the deposition transcript can be awarded as "costs" under Civ.R. 54(D) because it was 

necessary to the trial), (2) in Raab v. Wenrich, 2d Dist. No. 19066, 2002-Ohio-936, the 

court found that, under R.C. 2301.21, a deposition is a "proceeding," and (3) evidence for 

the purposes of summary judgment includes all those items properly submitted to the 

court pursuant to Civ.R. 56(C), including depositions and transcripts of evidence, because 

they are analogous to evidence admitted at a trial. Boomershine at ¶ 13, citing Haller at 

439. 

{¶ 12} In Brondes Ford, Inc. v. Habitec Sec., 6th Dist. No. L-12-1358, 2015-Ohio2441, the Sixth District Court of Appeals found that, pursuant to R.C. 2303.21 and Civ.R. 

54(D), transcripts of depositions that are filed and used for any purpose that is necessary 

can be awarded as costs, even if no trial is held. Id. at ¶ 173-76, citing Atkinson v. 

T.A.R.T.A., 6th Dist. No. L-05-1106, 2006-Ohio-1638, ¶ 11, citing Raab. See also

Kmotorka v. Wylie, 6th Dist. No. WD-11-018, 2013-Ohio-321, ¶ 53-54 (finding that, based 

on Boomershine, the cost of depositions that are filed in an action to oppose summary 

judgment, even though not used at trial, may be taxed as "costs" pursuant to Civ.R. 54(D) 

and R.C. 2303.21). 

{¶ 13} In 2115-2121 Ontario Bldg., L.L.C. v. Anter, 8th Dist. No. 98255, 2013-

Ohio-2993, ¶ 28-29, the Eighth District Court of appeals found that R.C. 2303.21 applies 

to the expenses associated with the procuring of a transcript of a deposition when it is 

necessary. Id. at ¶ 28, citing Naples v. Kinczel, 8th Dist. No. 89138, 2007-Ohio-4851, 

¶ 13. The court found that the deposition transcripts were necessary to support the 

plaintiff's motion for summary judgment, because Civ.R. 56(C) expressly states that the 

court shall grant summary judgment only if the evidence, in the form of depositions and 

other specified evidence, shows that there is no genuine issue of material fact and that the 

moving party is entitled to judgment as a matter of law. Id. at ¶ 29. Therefore, the court in 

2115-2121 Ontario Bldg. concluded that the trial court acted within its discretion when it 

taxed the expenses of deposition transcripts as costs. 

{¶ 14} In Nithiananthan, the court found that R.C. 2303.21 provides statutory 

authority to award the cost of transcription of depositions when determining the merits of 

a summary judgment motion. Id. at ¶ 91. The court determined that the trial court's 
No. 16AP-739 7 

award for deposition fees was proper where the magistrate awarded the cost of the parties' 

depositions, as the parties' depositions were the most crucial evidence used during the 

summary judgment phase, and that the parties' depositions were "necessary" to include in 

the record. Id. at ¶ 93. 

{¶ 15} The Tenth District Court of Appeals has also addressed several of the issues 

pertinent here. Although not a case involving summary judgment, in Brodess v. Bagent, 

10th Dist. No. 04AP-623, 2005-Ohio-20, this court addressed Williamson. We noted that 

some appellate courts have interpreted Williamson to prohibit the award of any expenses 

associated with transcripts of depositions as costs under any circumstances. However, we 

found that Williamson is not so broad. We noted that the syllabus in Williamson provides 

only that R.C. 2319.27 does not provide a statutory basis for taxing the services of a court 

reporter at a deposition as costs. Id. at ¶ 14. We indicated that the court in Williamson

does not address any other statutes other than R.C. 2319.27, and the syllabus does not 

specifically or implicitly prohibit expenses for producing the transcript of a deposition 

from being awarded as costs based on any other statutory authority. Id. We concluded 

that R.C. 2303.21 applied to allow the expenses associated with the procuring of a 

transcript of a deposition to be awarded as costs. Id. at ¶ 13. 

{¶ 16} We find the above authorities support the trial court's award of deposition 

transcript expenses here. As the courts found in those cases, the deposition transcripts 

were properly awarded as costs because they were necessary to exemplify the record of a 

proceeding for purposes of summary judgment. Civ.R. 56(B) specifies depositions as one 

of the types of evidence that may be used in summary judgment proceedings, and 

Franklin County Loc.R. 57.02 requires all depositions in support of or in opposition to the 

motion for summary judgment be filed with the motions or responsive pleading. Thus, the 

deposition transcript expenses were necessary costs. We also note that although appellees 

did not cite one of the depositions—that of Hamon—in support of their motion for 

summary judgment, Hamon was a named defendant and the deposition was called by 

appellant. Hamon's transcript was necessary to prepare the summary judgment motion, 

and R.C. 2303.21 allows costs to be recovered for transcripts procured "for any other 

purpose." For the foregoing reasons and based on the above authorities, we find the trial 
No. 16AP-739 8 

court did not err when it granted appellees' motion for costs, and we overrule appellant's 

single assignment of error. 

{¶ 17} Accordingly, appellant's single assignment of error is overruled, and the 

judgment of the Franklin County Court of Common Pleas is affirmed. 

 Judgment affirmed. 

SADLER and HORTON, JJ., concur. 

____________________