Summary
holding that absent express statutory provision, attorney's fees are not recoverable as part of "costs"
Summary of this case from Arneault v. ArneaultOpinion
No. 90-1985
Submitted May 8, 1991 —
Decided July 24, 1991.
APPEAL from the Court of Appeals for Harrison County, No. 422.
Appellee, Robert W. Muze ("Muze"), filed a claim with the Bureau of Workers' Compensation, alleging that he was injured on November 15, 1976 while employed by the appellant, Youghiogheny Ohio Coal Company ("Y O"). This claim was allowed for acute back strain.
On October 25, 1983, Muze filed a motion with the Industrial Commission ("commission") requesting that his claim be additionally allowed for degenerative changes of the lumbar spine. The commission denied Muze's motion, and, pursuant to R.C. 4123.519, Muze appealed to the Harrison County Court of Common Pleas. The appeal was dismissed by agreement of the parties without prejudice under Civ.R. 41(A).
Muze refiled his case against Y O, which prompted Y O to file a motion requesting the court to issue an order staying all proceedings until Muze paid Y O's costs in the previously dismissed action. In the alternative, Y O requested that the court dismiss the refiled action unless the costs of the previously dismissed action were paid by a date certain. Y O submitted an affidavit alleging that its costs from the prior case were $4,844.38.
The trial court held that in order to maintain his refiled action, Muze must pay the sum of $1,190, including attorney fees, plus $17.11 court costs of the prior suit, within one hundred twenty days. When Muze failed to make the payment within the designated time, the trial court dismissed the refiled case for failure to prosecute. Upon appeal, the court of appeals reversed, holding, inter alia, that under Civ.R. 41(D), attorney fees are not "costs" of a previously dismissed action unless so specified by statute.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Jerry L. Riseling, for appellee.
Hanlon, Duff Paleudis Co., L.P.A., and John G. Paleudis, for appellant.
The issue presented for our review is whether payment of costs of a previously dismissed action under Civ.R. 41(D) includes attorney fees. For the reasons that follow, we hold that attorney fees are not costs of a previously dismissed action.
Civ. R. 41(D) reads as follows:
"If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order."
We have previously ruled that attorney fees are not included as "costs" unless specified by statute. In State, ex rel. Franklin Cty. Commrs., v. Guilbert (1907), 77 Ohio St. 333, 338-339, 83 N.E. 80, 81, we discussed the definition of "costs": "Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which * * * [specified individuals] are entitled for their services in an action * * *. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. 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 * * *." We reiterated this point in State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 607, 60 O.O. 531, 535, 138 N.E.2d 660, 666, when we said: "`* * * The general rule in Ohio is that, in the absence of statutory provision making attorney fees a part of the costs, such fees can not be so taxed. * * * The subject of costs is one entirely of statutory allowance and control * * *.'"
In the instant case, no specific statutory provision authorizing the payment of attorney fees exists. Attorney fees are not included as "costs" of a previously dismissed action under Civ.R. 41(D). We affirm the judgment of the court of appeals for the reasons stated herein.
Judgment affirmed.
SWEENEY, HARSHA, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
WILLIAM H. HARSHA, J., of the Fourth Appellate District, sitting for HOLMES, J.