[Cite as J&H Reinforcing & Structural Erectors, Inc. v. Ohio School Facilities Comm., 2014-Ohio-1963.]

                              IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


J&H Reinforcing & Structural Erectors, Inc., :

                Plaintiff-Appellee,                   :                No. 13AP-732
                                                                 (Ct. of Cl. No. 2010-07644)
v.                                                    :
                                                               (REGULAR CALENDAR)
Ohio School Facilities Commission,                    :

                Defendant-Appellant.                  :




                                         D E C I S I O N

                                       Rendered on May 8, 2014


                Kegler, Brown, Hill + Ritter Co., LPA, Donald W. Gregory,
                Michael J. Madigan, and Timothy A. Kelley, for appellee.

                Michael DeWine, Attorney General, James E. Rook, and
                David A. Beals, for appellant.

                            APPEAL from the Court of Claims of Ohio.

BROWN, J.
        {¶ 1} Ohio School Facilities Commission ("OSFC"), plaintiff-appellant, appeals
from a judgment of the Court of Claims of Ohio, in which the court granted the motion for
costs filed by J&H Reinforcing & Structural Erectors, Inc. ("J&H"), defendant-appellee.
        {¶ 2} In 2006, J&H was awarded a contract to perform site preparation, general
trades work, masonry, and interior casework for a project involving the construction of a
school in the Wheelersburg Local School District ("Wheelersburg"). A dispute arose
between the parties.
        {¶ 3} On May 28, 2010, J&H filed an action in the Court of Claims against OSFC
for breach of contract, equitable adjustment to the contract, and breach of express and
implied warranties. J&H sought damages for delays and other problems caused by OSFC
No. 13AP-732                                                                               2

during the course of the school construction project. OSFC filed a counterclaim for breach
of contract and breach of warranties seeking damages for J&H's allegedly defective and
incomplete work on the project.
       {¶ 4} An appointed referee oversaw the trial in November and December 2011.
The referee issued a decision on February 10, 2012, finding in favor of J&H on its claim
for breach of contract, including additional claims of equitable adjustment and breach of
warranties, and awarded J&H damages. The referee also found in favor of OSFC on its
counterclaim for breach of contract, including the additional claim of breach of warranty,
and awarded OSFC damages as well. The referee recommended that the award to J&H be
offset by the award to OSFC, resulting in a net award to J&H in the amount of
$778,899.33, plus prejudgment interest and costs of the action. The referee found that,
because the contract rate was not stipulated, such rate would be determined at a
subsequent proceeding and the court would thereafter issue a final judgment in the case.
       {¶ 5} Both parties filed objections to the referee's decision, pursuant to Civ.R. 53,
as set forth in R.C. 2743.03(C). On March 14, 2012, J&H filed a motion for costs. OSFC
filed a memorandum contra, in which it claimed J&H's motion for costs was out of rule
because the trial court had not yet ruled on the objections and, thus, there was not yet a
final judgment in the case. On June 6, 2012, the trial court issued a judgment overruling
the parties' objections. The trial court rendered judgment in favor of J&H. The court also
awarded prejudgment interest in an amount to be determined at a "subsequent
proceeding" and found that, "[i]nasmuch as OSFC prevailed on the counterclaim and
because an appeal of the court's decision is a virtual certainty, the motion for costs shall
be HELD in abeyance until such time as costs can be fairly assessed." OSFC appealed the
court's decision, and J&H filed a cross-appeal.
       {¶ 6} On May 7, 2013, this court sua sponte stayed the matter pending the trial
court's determination of the prejudgment interest issue. On July 25, 2013, the trial court
filed a judgment entry in favor of J&H for $68,801.43 in prejudgment interest. The court
also found it was the appropriate time to rule on J&H's motion for costs and awarded
J&H $7,197.17 in costs ($14,394.33 in total litigation costs divided evenly because both
parties prevailed at trial and both parties appealed). We issued a decision in J&H
Reinforcing & Structural Erectors, Inc. v. Ohio School Facilities Comm., 10th Dist. No.
12AP-588, 2013-Ohio-3827 ("J&H I"), regarding the original June 6, 2012 appeal. OSFC
No. 13AP-732                                                                               3

now appeals the trial court's July 25, 2013 judgment, asserting the following four
assignments of error:
               [I.] The Court of Claims lacked jurisdiction to decide the
               question of court costs when the court of appeals remanded
               the case for the sole purpose of addressing the question of
               prejudgment interest and the appeal had yet to be resolved.

               [II.] The Court of Claims erred by awarding costs to one party
               when both parties prevailed at trial and before a final
               appealable order was in place.

               [III.] The Court of Claims erred by awarding costs to one
               party when both parties prevailed on their claims.

               [IV.] The Court of Claims erred by awarding costs not
               permitted by statute or Rule of Superintendence of Court.

       {¶ 7} OSFC argues in its first assignment of error that the trial court lacked
jurisdiction to decide the question of court costs when the court of appeals remanded the
case for the sole purpose of addressing the question of prejudgment interest when the
appeal had yet to be resolved. We first note that OSFC failed to cite to any authority in
support of its first assignment of error. Where a party fails to cite authority in support of
an assignment of error, the court may disregard the assigned error under App.R. 16(A)(7)
and 12(A)(2). It is the duty of the appellant, not the court, to affirmatively and expressly
demonstrate that an assignment of error is supported by citation to legal authority.
Whitehall v. Ruckman, 10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 19.
       {¶ 8} Notwithstanding, even considering the merits of the assignment of error,
OSFC's argument still fails. OSFC puts forth two primary contentions: (1) the trial court
did not have jurisdiction to decide costs because this court remanded the case for the sole
purpose of addressing prejudgment interest, and (2) the trial court could not address
costs until after the appeal concluded. However, OSFC confuses the procedural nature of
the course of events. The journal entry issued by this court on May 7, 2013 explicitly
stated the proceedings were "stayed." Therefore, this court did not "remand" the matter
to the trial court. To remand is to send a case back to the court from which it came for
further proceedings. Black's Law Dictionary 1293 (6th Ed.1990). In contrast, a stay is
either (1) the postponement or halting of a proceeding, judgment or the like, or (2) an
order to suspend all or part of a judicial proceeding or a judgment resulting from that
No. 13AP-732                                                                               4

proceeding. Black's Law Dictionary at 1413. Remand mandates further action by one
court, while saying nothing of the other. A stay mandates inaction by one court, while
saying nothing of the other.
       {¶ 9} Thus, there is a procedural distinction between the effect of remand and
the effect of a stay. When a case is remanded from a final judgment, the court of appeals
returns the case to the trial court and has completed its proceedings. When an appellate
court stays the appeal under its review pending necessary action by the trial court, it is
not returning the case to the trial court. It is effectively a notification that the court of
appeals is suspending its proceeding to allow the trial court to take further action.
       {¶ 10} In addition, while the entry issued by this court specifically mentioned a
determination of prejudgment interest, the entry was not a remand order for specific
execution under App.R 27. This court gave no indication that the case was being
remanded. To the contrary, the judgment entry issued by this court stated explicitly the
appeal was stayed. Because the action was stayed, the trial court's decisions during that
stay were not subject to the limitations of a remand order for specific execution.
       {¶ 11} Furthermore, "[w]hen a case has been appealed, the trial court retains all
jurisdiction not inconsistent with the reviewing court's jurisdiction to reverse, modify, or
affirm the judgment." State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 15 (1996). So long
as the court does not violate that rule, it is not required to wait until an appeal runs its
course before taking action.
       {¶ 12} Other districts have held that " 'the decision to grant a motion for costs and
attorney fees to be paid by appellant does not interfere with the power of the appellate
court to review the judgment under appeal and affirm, reverse or modify it.' " Koos v.
Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 596 (8th Dist.1994), quoting Wilson v. LTV
Steel Co., Inc., 8th Dist. No. 59515 (June 11, 1992). If the determination of costs is not
directly related to the area or issues on appeal, a trial court's award of costs pending
appeal is not improper or without jurisdiction. Kane v. Ford Motor Co., 17 Ohio App.3d
111, 116 (8th Dist.1984).
       {¶ 13} In the present case, the issues on appeal in J&H I involved the substantive
arguments on the merits of the contract dispute contested at trial. The trial court entered
judgment. The trial court's award of costs did not interfere with the issues before the court
on appeal. Therefore, the trial court retained jurisdiction to decide costs despite the
No. 13AP-732                                                                                    5

pendency of appeal. For all of the foregoing reasons, OSFC's first assignment of error is
overruled.
       {¶ 14} OSFC argues in its second assignment of error that the trial court erred by
awarding costs to one party when both parties prevailed at trial and before a final
appealable order was in place. OSFC asserts that the trial court ruled on J&H's motion for
costs prematurely because J&H's motion for costs was filed (1) before objections to the
referee's decision were complete, (2) before such objections were ruled upon by the trial
court, and (3) before there was a final, appealable order in place from which to award
costs of any nature. OSFC maintains that the trial court should have denied J&H's motion
because it was premature.
       {¶ 15} We find OSFC's arguments moot at this stage of the proceedings, and we fail
to see how OSFC has been prejudiced. See VanMeter v. VanMeter, 10th Dist. No. 03AP-
1107, 2004-Ohio-3390, ¶ 5 (actions become moot when resolution of the issues presented
will have no practical effect on the legal relations between the parties). After the trial court
addressed the parties' objections and adopted the referee's decision, the trial court did not
immediately rule on the motion for costs but deferred ruling on the motion. Furthermore,
this court has already affirmed the trial court's judgment with regard to the underlying
merits. Therefore, when J&H filed its motion for costs is irrelevant now, and no prejudice
resulted from the timing of its filing. We also note that, despite OSFC's contention that the
trial court deviated from its June 6, 2012 judgment because it ruled on the motion for
costs before the appeal of the merits had been ruled upon, the judgment does not
explicitly indicate that it would not address costs until after an appeal was ruled upon.
The trial court merely indicated that a ruling on costs would be held in abeyance until
costs "can be fairly assessed." In its discretion, the trial court could have, as it did, found it
appropriate to rule on costs in its July 25, 2012 judgment. Therefore, OSFC's second
assignment of error is overruled.
       {¶ 16} OSFC argues in its third assignment of error that the trial court erred by
awarding costs to one party when both parties prevailed on their claims. OSFC cites to no
authority in support of its third assignment of error. As already explained, when a party
fails to cite to authority in support of an assignment of error, the court may disregard the
assignment in its entirety. App.R 16(A)(7) and 12(A)(2).
No. 13AP-732                                                                               6

       {¶ 17} Nevertheless, OSFC contends that costs could not be "fairly assessed"
during the stay because, at the time of the stay and the trial court's judgment, this court
had not decided the appeal of the underlying merits, so whether either party remained a
prevailing party had yet to be determined. However, as with OSFC's second assignment of
error, OSFC's argument here is moot at this stage of the proceedings. This court affirmed
the trial court's judgment on the underlying merits in J&H I; thus, at that point, the
parties stood in the same position they did at the time the trial court addressed costs. That
is, both parties prevailed on certain claims.
       {¶ 18} Costs are allowed to the prevailing party in a suit unless the court otherwise
directs. Civ.R 54(D). "A 'prevailing party' generally is the party in whose favor the verdict
or decision is rendered and judgment entered." Winona Holdings, Inc. v. Duffey, 10th
Dist. No. 13AP-471, 2014-Ohio-519, ¶ 9, quoting Hikmer v. Turkoglu, 10th Dist. No.
08AP-1021, 2009-Ohio-6477, ¶ 74. A court retains the discretion to require a prevailing
party to bear all, or part, of its own costs. Vance v. Roedersheimer, 64 Ohio St.3d 552, 555
(1992). Here, the trial court took the fact that both parties prevailed into account in
awarding costs. In its judgment, the trial court reasoned that, because "both parties
prevailed at trial and both parties have appealed this case to the Tenth District Court of
Appeals, the costs shall be divided evenly between the parties."        Furthermore, even
though both parties prevailed at trial, the trial court was well within its discretion to
award costs to J&H as the prevailing party, as J&H was granted a net award of
$778,924.33 after setting off J&H's award on its claims by OSFC's award on its
counterclaim. It is also worthy to note that OSFC never filed a motion for costs. Despite
OSFC's failure to file a motion for costs, the court acknowledged that OSFC prevailed on
its counterclaim by reducing the costs awarded to J&H. Therefore, the court did not
abuse its discretion in awarding half of the costs requested by J&H, even when both
parties prevailed. OSFC's third assignment of error is overruled.
       {¶ 19} OSFC argues in its fourth assignment of error that the trial court erred by
awarding costs not permitted by statute or a Supreme Court superintendence rule.
Specifically, OSFC contends the trial court was not permitted to award J&H its costs for
buying deposition and trial transcripts. However, OSFC never raised this argument
before the trial court. Accordingly, the trial court never had the opportunity to address
OSFC's arguments. Issues that could have been raised and resolved in the trial court
No. 13AP-732                                                                             7

cannot be raised for the first time on appeal. Thompson v. Preferred Risk Mut. Ins. Co.,
32 Ohio St.3d 340, 342 (1987). Thus, issues not raised in the trial court are forfeited on
appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 21-23.
       {¶ 20} In the present case, OSFC filed a memorandum contra J&H's motion for
costs on March 28, 2012, but never raised whether the costs were permitted by statute or
a Supreme Court superintendence rule. OSFC contested only the timeliness of the motion
for costs. In its memorandum contra, OSFC did request that, if the court determined that
J&H's request for costs was timely, the trial court give it an opportunity to respond to
J&H's legal arguments. However, the trial court never granted such request. In its June 6,
2012 judgment entry, the trial court merely stated it was holding the motion for costs in
abeyance until such time as costs could be fairly assessed. Thus, the trial court never
indicated that it would alert OSFC when it would address the motion for costs so that it
could first file a supplemental memorandum contra and did not specifically grant OSFC's
request to file a response to the merits at a later date. Furthermore, OSFC never filed a
supplemental memorandum contra in the 16 months between its memorandum contra
and the trial court's decision. We also note that, while we acknowledge that there may
exist potential arguments regarding the specific costs awarded by the trial court, because
the court awarded only half of the requested costs and both parties were given the
opportunity to raise any arguments regarding the specific costs, we also can find no plain
error with the trial court's award and find substantial justice was done. Therefore, OSFC's
fourth assignment of error is overruled.
       {¶ 21} Accordingly, OSFC's four assignments of error are overruled, and the
judgment of the Court of Claims of Ohio is affirmed.
                                                                      Judgment affirmed.

                          DORRIAN and O'GRADY, JJ., concur.

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