[Cite as Wood Elec., Inc. v. Ohio Facilities Constr. Comm., 2017-Ohio-7524.]




WOOD ELECTRIC, INC.                                    Case No. 2014-00987

       Plaintiff                                       Judge Dale A. Crawford

       v.                                              JUDGMENT ENTRY

OHIO FACILITIES CONSTRUCTION
COMMISSION

       Defendant



        {¶1} On May 9, 2017, the Tenth District Court of Appeals affirmed the Court’s
August 12, 2016 decision and judgment for Plaintiff. On June 7, 2017, Plaintiff filed a
motion for costs, prejudgment interest, and post-judgment interest. Defendant filed a
memorandum contra on June 13, 2017. On June 20, 2017, Plaintiff filed a motion for
leave to file a reply, and on July 11, 2017, Defendant filed a motion to strike Plaintiff’s
reply. Plaintiff did not file a response.
        {¶2} With regard to the motion to strike, Defendant argues that Plaintiff had the
opportunity to present everything it should have in its original motion because the law
and facts have not changed since the date Plaintiff filed the motion. Defendant also
argues that Plaintiff has not complied with L.C.C.R. 4(C), which allows for reply briefs
upon a showing of necessity.              Upon review of Plaintiff’s reply, it appears that the
purpose of the reply was to directly address what Plaintiff deemed were
mischaracterizations of the issues by Defendant.                   Accordingly, Plaintiff’s motion for
leave is GRANTED, and Defendant’s motion to strike is DENIED.
        {¶3} Addressing the motion for costs, prejudgment interest, and post-judgment
interest, the Court finds the following:
Case No. 2014-00987                          -2-                        JUDGMENT ENTRY


   I. Costs
       {¶4} Plaintiff seeks $11,942.50 for the filing fee, trial transcript, deposition
transcripts, and trial exhibits. Defendant does not dispute the cost of the filing fee or the
trial transcript. Indeed, R.C. 2746.01(G) states that “[p]rocurement of a transcript of a
judgment or proceeding or exemplification of a record in an appeal or other civil action”
shall be taxed as costs, and R.C. 2303.21 states that “[w]hen it is necessary in an
appeal, or other civil action to procure a transcript of a judgment or proceeding * * * [the
transcript] shall be taxed in the bill of costs and recovered as in other cases.”
Therefore, Plaintiff is entitled to $2,871.30 for the cost of the trial transcripts in addition
to $25.00 for the filing fee.
       {¶5} Concerning the deposition transcripts and trial exhibit costs, the Supreme
Court of Ohio has held that costs do not include fees that are not statutorily authorized.
State ex rel. Toth v. Industrial Comm’n, 80 Ohio St.3d 360, 363, 686 N.E.2d 514 (1997).
Plaintiff argues that 2746.01(G) or R.C. 2303.21 authorize both deposition transcript
and copying costs. However, photocopying expenses have been expressly rejected as
costs. Id. Furthermore, “[d]epositions may be taxed as costs if the court determines, in
its discretion, that the depositions were vital to the litigation.      Kennedy v. Univ. of
Cincinnati Hosp., 72 Ohio Misc.2d 51, 53, 656 N.E.2d 424 (Ct. of Cl.1995), citing Jones
v. Olcese, 75 Ohio App.3d 34, 598 N.E.2d 853 (11th Dist.1991). “One way to determine
if the depositions were vital to the litigation is to allow the cost of the deposition if it is
used at trial as evidence.” Barrett v. Singer Co., 60 Ohio St.3d 7, 396 N.E.2d 218
(1979). Transcribing and reporting costs for a deposition may not be recoverable as
costs if the deposition is not introduced as evidence. See Moore v. General Motors
Corp, Terex Div., 18 Ohio St.3d 259, 261, 480 N.E.2d 1101 (1985). Plaintiff did not
introduce any of the depositions as evidence at trial. As such, the Court finds that
Plaintiff is not entitled to the additional $5,028.10 for deposition transcripts or the
$4,018.10 for exhibit copying.
Case No. 2014-00987                              -3-                         JUDGMENT ENTRY


   II. Prejudgment Interest
       {¶6} R.C. 2743.18(A) allows for Plaintiff to receive prejudgment interest “at the
same rate as allowed between private parties to a suit.” The contract between the
parties states that interest will be calculated at the applicable statutory rate, which
Plaintiff asserts is 3% for 2014-2016 and 4% for 2017 based on the Ohio Department of
Taxation’s Annual Certified Interest Rates. Plaintiff specifically asks for prejudgment
interest from the date of substantial completion, August 24, 2014, until May 9, 2017,
when Plaintiff states that the Tenth District Court of Appeals affirmed this Court’s
decision.1 Defendant argues that it is too late for Plaintiff to seek prejudgment interest
and that the Court did not make a factual determination regarding the substantial
completion date or the relevant interest rates. However, the Court finds that it did
determine the substantial completion date in its decision and that the use of the
applicable statutory rate is clearly contracted between the parties. Therefore, the Court
finds that Plaintiff is entitled to prejudgment interest, but that the calculation should be
based on this Court’s decision on August 12, 2016, rather than the date of the Tenth
District Court of Appeals’ decision. Accordingly, Plaintiff is entitled to $15,012.72 in
prejudgment interest.

   III. Post-Judgment Interest
       {¶7} R.C. 2743.18(B)(2) states that “[i]f the court of claims renders a judgment
pursuant to this chapter against the state in a civil action * * *, the civil action is not
based on tortious conduct, and the claimant in the court of claims prevails in any appeal
of the judgment or determination, post judgment interest shall be paid with respect to
the judgment or determination rendered against the state at the same rate that is
applicable to judgments rendered against private parties to a suit as set forth in section


       1However,   as previously stated, the Tenth District Court of Appeals’ decision was rendered on
May 9, 2017.
Case No. 2014-00987                        -4-                       JUDGMENT ENTRY


1343.03 of the Revised Code and for each day between the date of entry of the
judgment or determination and the date of payment of the judgment or determination
pursuant to division (C)(3) or (6) of section 2743.19 of the Revised Code.” Plaintiff
states that this amount should be $27.92 per day beginning from the date of the Tenth
District Court of Appeals’ decision. However, as determined above, post-judgment
interest began to run from the date of this Court’s decision on August 12, 2016.
Therefore, Plaintiff is entitled to post-judgment interest in the amount of $20.88 per day
for 2016 and $27.84 per day for 2017.

Conclusion
        {¶8} Based on the foregoing, Plaintiff’s motion for costs, prejudgment interest,
and post-judgment interest is GRANTED, in part, and DENIED, in part.            Plaintiff is
entitled to the judgment of $254,027 plus $2,896.30 in costs, $15,012.72 in prejudgment
interest, and post-judgment interest calculated in a manner consistent with this entry.




                                                 DALE A. CRAWFORD
                                                 Judge

cc:
Donald W. Gregory                            David A. Beals
Michael J. Madigan                           William C. Becker
Capitol Square Office Building               Assistant Attorneys General
65 East State Street, Suite 1800             150 East Gay Street, 18th Floor
Columbus, Ohio 43215-4294                    Columbus, Ohio 43215-3130

Filed August 23, 2017
Sent to S.C. Reporter 9/8/17
