Vance v. Roedersheimer - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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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.