Opinion
No. 85-1149
Decided May 14, 1986.
Mandamus — Recovery of costs — No abuse of discretion by court of appeals in assessing costs in favor of prevailing party as attorney fees, when.
APPEAL from the Court of Appeals for Cuyahoga County.
A judgment was obtained against N. Norman Gravill, appellant herein, in 1982 by Thomas Longo in the Court of Common Pleas of Cuyahoga County. Upon filing his appeal, appellant paid $692 in costs, which included a transcript of the trial court proceedings. The appeal was successful and the appellate court rendered judgment in favor of appellant together with costs of $692. This court subsequently overruled Longo's motion to certify the record. Appellant then filed a praecipe on April 16, 1984 with the Clerk of the Court of Common Pleas of Cuyahoga County, an appellee herein, for issuance of a writ of execution directing Sheriff Gerald T. McFaul, an appellee herein, to levy on goods and chattels of Longo to satisfy costs together with interest. On service of the writ of execution, costs were paid through the clerk's office but interest on such costs was not paid.
Appellant then commenced the mandamus action below, reciting that the action was also brought on behalf of all litigants entitled to recover costs. The mandamus complaint sought an order requiring appellees "* * * to collect interest from Thomas G. Longo on costs of $692 at the rate of ten (10%) per cent per annum from August 2, 1982 to May 29, 1984 and for costs of this action, including reasonable attorney fees as part of the costs herein." Appellant signed the complaint himself, as attorney.
The journal entry of the court of appeals reads as follows:
"Motion for summary judgment granted. Writ of Mandamus to issue requiring respondents to collect interest on sum of $692 at rate of 10% per annum from August 2, 1982 to May 17, 1984 in amount of $124.92 and interest at rate of 10% per annum on said $124.92 from May 17, 1984 to the date of collection. Costs of this action assessed against respondents as attorney's fees."
An appeal as of right brings the matter to this court for review.
The appeal herein is limited to the portion of the foregoing order which reads, "[c]osts of this action assessed against respondents [appellees] as attorney's fees."
N. Norman Gravill, pro se. John T. Corrigan, prosecuting attorney, and Patrick J. Murphy, for appellees.
The issue is whether the court of appeals abused its discretion in limiting the attorney fees awarded to a prevailing party in a mandamus action to the costs assessed against respondents therein.
Appellant argues that he was entitled to costs as the prevailing party under Civ. R. 54(D) independent of the receipt of attorney fees. Additionally, appellant emphasizes that his action was brought on behalf of other unnamed litigants entitled to recover interest on their costs which was the substance of the mandamus action.
Civ. R. 54(D) states 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." Appellant's reliance on this provision is thus misplaced as the rule is not a grant of absolute right for court costs to be allowed to the prevailing party much less a grant of right to attorney fees.
The mandamus action was by its nature and, as statutorily required, by R.C. 2731.04, brought in the name of the state. Its benefit to others likewise situated offers no more or less entitlement to costs simply because appellant designated in his amended complaint "* * * [a]ll other litigants who are entitled to recovery of their costs in any judicial proceeding" than the action would have afforded absent such designation.
Nor is this a taxpayer's action, as in State, ex rel. White, v. Cleveland (1973), 34 Ohio St.2d 37 [63 O.O.2d 79], expressly authorized by R.C. 733.59. In White, this court had before it R.C. 733.61 which permits a court hearing such taxpayer's action to exercise discretion as to the allowance of attorney fees where the requirements of that statute are also met. White only supports the exercise of discretion as to an allowance of attorney fees pursuant to the requirements of R.C. 733.59 and 733.61. In addition to the inapplicability of White to the mandamus action herein, we find appellant has not demonstrated any abuse of discretion by the court of appeals in assessing costs in favor of appellant as attorney fees. Appellant, an attorney, represented himself, and made no claim of attorney fees paid to other counsel.
For reason of the foregoing, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.