Pettay v. DeVry Univ., Inc.

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[Cite as Pettay v. DeVry Univ., Inc., 2020-Ohio-7010.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Tom G. Pettay,                                           :

                 Plaintiff-Appellant,                    :       No. 20AP-71
                                                              (C.P.C. No. 16CV-9365)
v.                                                       :
                                                             (REGULAR CALENDAR)
DeVry University, Inc. et al.,                           :

                 Defendants-Appellees.                   :




                                          D E C I S I O N

                                   Rendered on December 31, 2020


                 On brief: Law Offices of Russell A. Kelm, Russell A. Kelm, and
                 Ian M. King, for appellant. Argued: Russell A. Kelm.

                 On brief: Seyfarth Shaw LLP, Jennifer A. Riley, and James C.
                 Goodfellow (pro hac vice); Zashin & Rich Co., L.P.A., and
                 Drew C. Piersall, for appellees. Argued: Jennifer A. Riley.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
         1 This is an appeal by plaintiff-appellant, Tom A. Pettay, from a judgment of
the Franklin County Court of Common Pleas granting the motion for taxation of costs filed
by defendants-appellees, DeVry University, Inc. (individually "DeVry"), Galen Graham,
Marilyn Wiggam, and Darryl Field.
         2 On September 30, 2016, appellant filed a complaint against appellees alleging
age discrimination in violation of R.C. 4112.02 and 4112.99. In the complaint, appellant
alleged his position as a professor with DeVry was eliminated due to a reduction in force
("RIF"), and that the RIF had a disparate impact on employees at DeVry over the age of 40.
         3 On January 12, 2018, appellees filed a motion for summary judgment. On
June 25, 2018, appellant filed a memorandum in opposition to the motion. On October 7,
No. 20AP-71                                                                                                2

2019, the trial court filed a decision and entry granting appellees' motion for summary
judgment.1
         4 On October 16, 2019, appellees filed a motion for taxation of costs against
appellant for expenses associated with deposition transcripts submitted in support of the
summary judgment motion. On October 18, 2019, appellant filed a memorandum in
opposition to the motion. On January 16, 2020, the trial court issued a decision and entry
granting appellees' motion for taxation of costs against appellant, relying on this court's
decision in Vossman v. AirNet Sys., Inc., 10th Dist. No. 16AP-739, 2017-Ohio-2872
(hereafter "Vossman I"). The trial court awarded costs to appellees in the amount of
$4,004.39.
         5 On February 4, 2020, appellant filed a notice of appeal from the trial court's
decision and entry granting appellees' motion for taxation of costs. On April 27, 2020,
appellees filed with this court a motion to remand appellant's appeal as to costs; specifically,
appellees' motion requested a remand of appellant's appeal of the trial court's January 16,
2020 order awarding costs to appellees "so that the trial court may exercise jurisdiction to
vacate its judgment" pursuant to Civ.R. 60(B)(4). (Appellees' Mot. to Remand Appeal at 1.)
         6 In their memorandum in support, appellees noted that, shortly after
appellant filed his brief in the instant appeal (March 12, 2020), the Supreme Court of Ohio
issued its decision in Vossman v. Airnet Sys., Inc., 

159 Ohio St. 3d 529

, 2020-Ohio-872
(hereafter "Vossman II"), reversing the decision relied on by the trial court in this case in
support of granting appellees' motion for taxation of costs. Appellees argued that, in light
of the Supreme Court's intervening decision, they "have filed a Notice of the Supreme
Court's decision in Vossman [II] with the trial court, stipulating that the trial court's
January 16, 2020 Order * * * should be vacated pursuant to [Civ.R.] 60(B)(4) and providing
a proposed order for that purpose." (Appellees' Mot. to Remand Appeal at 3.)
         7 Appellant subsequently filed a memorandum in opposition to appellees'
motion to remand appellant's appeal as to costs. By entry filed May 8, 2020, this court




1 Appellant has filed a separate appeal from the trial court's grant of summary judgment which is currently

pending before this court (case No. 19AP-762). Although the appeals in 19AP-762 and the instant case (case
No. 20AP-71) have not been consolidated, this court issued an order coordinating the two appeals for purposes
of oral argument.
No. 20AP-71                                                                                  3

determined appellees' motion to remand appellant's appeal as to costs "shall be submitted
to the court at such time as the court determines the merits of this appeal."
        8 On appeal, appellant sets forth the following single assignment of error for
this court's review:
              THE TRIAL COURT ERRED IN AWARDING DEPOSITION
              TRANSCRIPT EXPENSES AS COSTS UNDER CIVIL RULE
              54(D).

        9 Under his single assignment of error, appellant argues the trial court erred in
awarding deposition transcript expenses as taxable costs under Civ.R. 54(D). Appellant
maintains the trial court may not award costs under Civ.R. 54(D) that are not authorized
by statute.
        10 As noted under the facts, in granting appellees' motion for taxation of costs,
the trial court relied on this court's decision in Vossman I, a case in which we affirmed an
award of deposition transcript expenses to a party as necessary costs in support of their
motion for summary judgment.          On April 25, 2018, the Supreme Court granted a
discretionary appeal in Vossman I, and that appeal was still pending for decision before the
Supreme Court at the time appellant filed his notice of appeal in the instant case from the
trial court's January 16, 2020 decision. We further note that appellant's initial appellate
brief in the present case was filed two days prior to the release of the Supreme Court's
decision in Vossman II.
        11 In Vossman II, the Supreme Court reversed this court's decision in Vossman
I, holding in relevant part that "[a] deposition conducted outside the presence of a judge is
not a proceeding within the meaning of R.C. 2303.21," and therefore the statute "does not
provide statutory authority for a party to recover the cost of deposition transcripts used in
support of a motion for summary judgment." Vossman II at  24.
        12 We initially address appellees' motion to remand appellant's appeal as to
costs, in which appellees acknowledge the recent decision in Vossman II. As stated above,
appellees represent in their motion that they have filed with the trial court a notice of the
Supreme Court's decision in Vossman II. According to appellees, "[t]he most efficient way
to dispose of the appeal on costs * * * is to remand this matter to the trial court so that the
trial court may properly vacate its Order pursuant to Ohio R. Civ. P. 60(B)(4) consistent
with the Supreme Court's decision in Vossman." (Appellees' Mot. to Remand Appeal at 4.)
No. 20AP-71                                                                                   4

        13 In his memorandum in opposition to appellees' motion, appellant initially
argues there does not appear to be authority for the filing by appellees in the trial court of
their notice of intervening authority and stipulation for vacatur of the judgment awarding
costs; more specifically, appellant asserts the Rules of Civil Procedure do not allow a party
to sua sponte issue a notice to vacate a judgment awarding costs to themselves. Appellant
further argues Ohio case law does not permit the filing of a motion for Civ.R. 60(B) relief
where there has been a change in controlling law in an unrelated proceeding.
        14 On review, we find unpersuasive appellees' request that this court remand
appellant's appeal to the trial court in order for that court to presumably vacate its decision
under Civ.R. 60(B)(4). As noted by appellant, the Supreme Court has held that "[a]
subsequent change in the controlling case law in an unrelated proceeding does not
constitute grounds for obtaining relief from final judgment under Civ.R. 60(B)." Doe v.
Trumbull Cty. Children Servs. Bd., 

28 Ohio St. 3d 128

(1986), paragraph one of the syllabus.
The rationale for the holding in Doe is that there is a "strong interest in finality of
judgments."

Id. at

131. 
The Supreme Court in Doe further observed that "relief under Civ.R.
60(B)(4), '* * * is limited to cases in which the present judgment is based on the prior
judgment in the sense of res judicata or collateral estoppel," and "[i]t does not apply merely
because a case relied on as precedent by the court in rendering the present judgment has
since been reversed.' "
 Id. at 
fn. 2, quoting Wright & Miller, Federal Practice and Procedure
(1973) 204, Section 2863.
        15 In the present case, the trial court has entered a final judgment on the issue
of deposition transcript costs, for which appellant has filed a timely appeal. The matter is
properly before this court for decision, and appellees' motion to remand appellant's appeal
as to costs for the trial court to vacate its order pursuant to Civ.R. 60(B)(4) is denied.
        16 We therefore proceed to the merits of appellant's appeal. In their motion for
taxation of costs filed with the trial court, appellees argued they were entitled to costs for
deposition transcripts in support of the motion for summary judgment pursuant to Civ.R.
54(D) and R.C. 2303.21.
        17 Civ.R. 54(D) governs the award of costs, and states: "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." R.C. 2303.21 pertains to transcript
expenses, and states: "When it is necessary in an appeal, or other civil action to procure a
No. 20AP-71                                                                                 5

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."
        18 In the instant case, appellees argued in their motion for costs before the trial
court that, pursuant to R.C. 2303.21, the court was required to tax as costs "the expenses
incurred in procuring the transcript of any proceeding in a civil action that is used for any
purpose." (Appellees' Mot. for Taxation of Costs at 1.) As noted previously, the trial court
granted appellees' motion for taxation of costs based on this court's decision in Vossman I.
Specifically, the trial court held that "the Vossman decision's interpretation of the express
provision in R.C. 2303.21 allowing the costs of procuring transcripts overrides this Court's
ability to exercise discretion in the taxing of such costs." (Decision & Entry on Mot. for
Taxation of Costs at 2.)
        19 As further noted, subsequent to the filing of appellant's initial brief in the
appeal in this case, the Supreme Court reversed this court's decision in Vossman I, holding
that "a discovery deposition conducted outside the presence of a judge is not a proceeding
within the meaning of R.C. 2303.21 and, thus, the cost of procuring the transcript of such a
deposition may not be recovered as a cost under Civ.R. 54(D)." Vossman II at  2.
        20 The Supreme Court's decision in Vossman II settles the issue of whether R.C.
2303.21 provides statutory authority for a party to recover the cost of deposition transcripts
used in support of a motion for summary judgment.               Because such costs are not
permissible, we sustain appellant's assignment of error and reverse the trial court's decision
granting appellees' motion for taxation of costs.
        21 Based on the foregoing, appellant's single assignment of error is sustained,
the judgment of the Franklin County Court of Common Pleas is reversed, and this matter
is remanded to that court for further proceedings in accordance with law and consistent
with this decision. Further, appellees' motion to remand appellant's appeal as to costs for
the trial court to vacate its order pursuant to Civ.R. 60(B)(4) is denied.
                                                 Judgment reversed and cause remanded;
                                   Appellees' Motion to Remand Appeal as to Costs denied.

                  LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.

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