[Cite as Paulozzi v. Iannotti, 2016-Ohio-5511.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 103381



                                         MARY JO PAULOZZI

                                                           PLAINTIFF-APPELLANT/
                                                           CROSS-APPELLEE

                                                     vs.

                                      JOSEPH IANNOTTI, ET AL.

                                                           DEFENDANTS-APPELLEES/
                                                           CROSS-APPELLANTS




                                                  JUDGMENT:
                                                   AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-14-829885

        BEFORE: Laster Mays, J., Jones, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: August 25, 2016
                                 -i-
ATTORNEY FOR APPELLANT/CROSS-APPELLEE

Alan J. Rapoport
25700 Science Park Drive, Suite 270
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS

Steven G. Janik
Audrey K. Bentz
George H. Carr
Janik L.L.P.
9200 South Hills Boulevard, Suite 300
Cleveland, Ohio 44147
ANITA LASTER MAYS, J.:

       {¶1} Plaintiff-appellant, Mary Jo Paulozzi (“Paulozzi”), appeals from the trial court’s

judgment finding that she failed to prove negligence on the part of defendants-appellees Joseph

and Karen Iannotti (the “Iannottis”) for damage to her real property. The Iannottis cross-appeal,

challenging the trial court’s assessment, in part, of costs to them. We affirm the trial court’s

findings on both the Paulozzi and Iannottis’ appeals.

I.       BACKGROUND AND FACTS

       {¶2}       In 1989, the city of Strongsville (“city”) approved plans relating to the

construction of a home located on an elevated lot containing a downhill slope (the “Elevated

Lot”). The city required installation of a shallow drainage ditch known as a swale to facilitate

downhill water flow into a storm sewer located via easement along the western boundary of the

Elevated Lot, emptying into a storm sewer drain at the southwest corner.

       {¶3} In 1997, Paulozzi purchased a lot to the west of, and adjacent to, the Elevated Lot

(the “Paulozzi Lot”). The elevation of the Paulozzi Lot was 10 feet to 11 feet lower than the

Elevated Lot and the Elevated Lot’s swale, and storm sewer easement abutted the Paulozzi Lot’s

eastern property line. Paulozzi was required to construct a retaining wall along the eastern

boundary of her lot.

       {¶4}    In 2003, Harry and Sally Matlock (the “Matlocks”) purchased the property

immediately adjacent to and north of the Paulozzi Lot (the “Matlock Lot”), also abutting the

Elevated Lot to the east. There was a 10 foot to 11 foot elevation difference between the lots.

The city required that the Matlocks construct a retaining wall along their eastern boundary.
       {¶5} In 2004, the Iannottis purchased the Elevated Lot (now the “Iannottis’ Lot”). In

2010, the Iannottis had landscaping services performed on the western portion of their lot that

included the removal of vine, and brush and the installation of a line of shrubs paralleling the

swale location.

       {¶6} It is asserted that, shortly after the landscaping, Paulozzi and the Matlocks began

experiencing flooding of their properties. They argued that the landscaping negatively impacted

the water flow and allegedly caused damage to their retaining walls.

       {¶7} In August 2011, surveyor John Hejduk (“Hejduk”) was hired by the Iannottis’ to

survey the Iannottis’ Lot (“2011 Survey”) as the result of Paulozzi’s complaint to the city that

topographical changes resulting from the landscaping caused flooding to her property. The city

reviewed the topographical maps prepared by Hejduk as part of the 2011 Survey and city

engineers conducted their own inspections. The city concluded that the swale was in place and

that the landscaping did not impact or redirect the water flow.

       {¶8} In 2012, the Matlocks sued the Iannottis for the damage to their retaining wall.

Paulozzi intervened in 2013 asserting damage to her wall. The Iannottis retained surveyor

Hejduk as their expert. Significant discovery was conducted including a second survey of the

property by Hejduk personally attended by Paulozzi that included both sides of the property line

(“2013 Survey”). Paulozzi did not have a survey.

       {¶9} In December 2013, after significant discovery was conducted and while Daubert1

and summary judgment motions were pending, Paulozzi’s complaint was voluntarily dismissed

without prejudice. The Iannottis and Matlocks settled and dismissed their claims in January


         Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
       1


469 (1993) (adopted by Ohio to determine the reliability of an expert’s opinion).
2014. The parties agreed to modify the swale as part of the settlement terms. Hejduk was hired

to create a “Swale Modification Plan” depicting actual and proposed dimensions for city

permitting purposes (the “Plan”). Hejduk prepared the Plan in June 2014, using his 2013 swale

measurements.     The Iannottis implemented the Plan and modified the swale in July 2014.

Paulozzi secured a copy of the Plan via a public records request.

       {¶10} Paulozzi filed suit July 16, 2014, alleging damage to her retaining wall exceeding

$166,000. She claimed that the swale was inadequate and that the Iannottis negligently altered

or failed to maintain the swale. The Iannottis counterclaimed for abuse of process, frivolous

litigation, spoliation, malicious prosecution, and trespass.

       {¶11} The parties engaged in the exchange of documents and conducted depositions.

The Iannottis identified Hejduk as their trial expert and maps and drawings of survey

measurements were produced. Paulozzi did not depose Hejduk or subpoena his files or working

documents relating to the swale measurements or modification.

       {¶12}     Paulozzi produced engineers, hydrologists who had inspected the swale during

the Matlock case, and a number of documents and photographs, to demonstrate that the swale, or

a portion thereof, was not present throughout the original swale area.

       {¶13} Paulozzi’s witness Robert Klaiber (“Klaiber”), a civil engineer and professional

surveyor, was the Strongsville city engineer during the 1997 site plan and swale approval period,

and later served as an expert in the Matlock case as an independent contractor consultant.

Klaiber examined the swale several times between 2011 and 2014, and stated portions of the

swale were still present but he did not observe a swale in the 10-foot easement area behind the

Paulozzi Lot. A number of exhibits were introduced into evidence to demonstrate that a portion
of the swale was not evident and the swale length was not long enough. Based on the evidence

of the absence of a swale, Paulozzi sought a directed verdict that the trial court denied.

        {¶14}     Hejduk testified as the Iannottis’ expert witness. Hejduk was hired by the

Iannottis in 2011, to survey the property lines and to perform a topographical survey on the west

side of the Iannottis’ Lot. This survey included a comparison of swale dimensions to the 1989

original site plan for building the residence on the Iannottis’ Lot but did not contain a

measurement of the depth of the swale. At the time of the 2011 Survey, Hejduk observed a

measurable swale along the entire property line.

        {¶15} The Hejduk surveys admitted on direct examination did not include swale-depth

measurements. On cross-examination, Paulozzi proffered the Plan (identified as exhibit No. 84

at the trial). Paulozzi argues that the Plan was offered to demonstrate that the swale-depth near

the northern end of the Paulozzi retaining wall had decreased from 1.4 feet in 1997 to 0.1 feet in

2013. The trial court refused admission on the ground that it served as evidence of subsequent

remedial measures and also excluded the Plan during questioning of other defense witnesses.

The trial court did entertain a proffer for the record.

        {¶16} Hejduk testified that he did not recall the specific depth measurements contained in

the Plan and did not bring his files because they had not been requested. However, Hejduk did

state that the elevation indications on the admitted survey exhibit demonstrated there was a slope

and a “measurable swale”:

        [Defense Counsel]: Okay. And the fact that you didn’t particularly note that at
        this point in the swale it was 1.1 feet deep or at a different point in the swale it
        was point 9 feet deep or at a different point in the swale it was point 5 feet deep
        does not mean you did not see a swale?

        [Hejduk]:    Correct.

(Tr. 704.)
       {¶17}     After the jury determined that Paulozzi failed to prove negligence by a

preponderance of the evidence, she sought a new trial that was denied by the trial court without

opinion. The court also did not award attorney fees to the Iannottis pursuant to Civ.R. 54(D).

This appeal and cross-appeal ensued.

II.    ASSIGNMENT AND CROSS-ASSIGNMENT OF ERROR

       {¶18} Paulozzi offers a single assignment of error, that the trial court erred in failing to

admit relevant and material evidence of negligence, specifically the Plan.            The crux of

Paulozzi’s position is that the Plan did not demonstrate that actual remedial measures were taken

or that an actual compromise of a disputed claim was effected. She asserts that the exclusion

constitutes plain error. We disagree.

       {¶19}     Iannotti’s sole assigned error on the cross-appeal is the trial court’s failure to

award costs pursuant to Civ.R. 54(D). We affirm the trial court’s findings on the appeal and

cross-appeal.

       A.       Paulozzi’s Appeal

                1.     Standard of Review

       {¶20}     The admission or exclusion of relevant evidence rests within the discretion of

the trial court. State v. Robb, 88 Ohio St.3d 59, 68, 723 N.E.2d 1019 (2000). An appellate

court will not disturb a decision of the trial court to admit or exclude evidence absent a clear and

prejudicial abuse of discretion. Donovan v. Donovan, 110 Ohio App.3d 615, 620, 674 N.E.2d

1252 (12th Dist.1996); State v. Robinson, 8th Dist. Cuyahoga No. 99917, 2014-Ohio-2973, ¶ 23.

 An abuse of discretion standard “connotes more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
               2.      Law and Analysis

       {¶21} “Error predicated on an evidentiary ruling does not warrant reversal of the trial

court’s judgment unless the court’s actions were inconsistent with substantial justice and affected

the substantial rights of the parties.    Evid.R. 103(A).”     Perry v. Univ. Hosps., 8th Dist.

Cuyahoga No. 83034, 2004-Ohio-4098, ¶ 25.

       {¶22} Paulozzi elaborated on the grounds supporting admission of the Plan during the

evidentiary proffer for the record:

       Paulozzi’s Counsel: Yes. I want to show a proffer what the record — the item
       purports to show. This is called a swale modification. It’s a plan that was
       developed. It is not necessarily the plan that was implemented in this case and
       nor does it mention specifically the Matlocks at all. Matlock’s name does not
       appear on this. This was prepared for the Iannottis. It specifies that all work
       shall remain on the Iannotti property. This item does refer to an extension of a
       swale to the north which was part of the Matlock settlement. And I understand
       per the previous rulings of this Court we were not about to reference this as being
       part of the settlement, nor in fact even reference this as being an extension of the
       swale.

       What we did intend to reference is that, as the witness testified today, he did take
       elevations of the middle of the swale. They do not appear on any of the
       documents that [defense counsel] has offered. They do appear on this document.
       And this document specifically shows those elevations that he was referring to
       that are very material in determining what the depth of the swale is. Specifically
       at a location that’s adjacent to the mound as I read the map, there is an elevation
       of 1117 but there is a reference point of 1116.9 which would indicate that the
       depth of the swale at that point was point 1 feet in the vicinity of the landscaped
       mound, which is the whole intention in this case that we made that the mound was
       — that the swale was graded by the landscapers. Because this is not consistent
       with the information that was on the survey that was done in 1997, which is also
       consistent with our contention that the swale was modified since 1997.

       I believe that the Court is fundamentally correct in stating that evidence of a
       subsequent repair is not admissible under the evidence rules. This is not evidence
       of a subsequent repair. The evidence rule specifically provides that evidence can
       be used for other purposes. Even though it may be inadmissible for some
       purposes, it’s admissible for others. In this case it’s admissible as absolutely
       important proof of physical dimensions, facts at issue in the case. It’s also
       introducible as impeachment testimony. Dr. Iannotti has testified that there were
       no changes made in the swale during the time that he has owned his property.
       Whereas this shows a specific difference between the original plan and the
       measurements at that time that were done by a surveyor who had no axe to grind,
       was merely measuring physical distances.

       In addition to that, there are other compensations in here as well. This plan shows
       existing elevation, also shows proposed elevations. Now, by showing proposed
       elevations, the engineer, according to the surveyor, is rendering an opinion on the
       subject of what the swale ought to be.

       Now, once again, this is not evidence of a repair. This is a plan. The plan might
       have been done, might not have been done. [Defense counsel] has introduced a
       number of plans in this case that were never done that were in fact rejected by the
       city.

       So this does not specifically reference anything that was actually done and doesn’t
       necessarily require proof that it was actually done. It does in fact, though, give the
       jury some information and guidance on what was there after the landscaping was
       done in 2010 and what reasonably could have or should have been done thereafter
       to make a proper swale. That’s my proffer, your Honor.

(Tr. 710-713.)

       {¶23}     We begin our analysis with Evid.R. 407:

       Rule 407. Subsequent remedial measures when, after an injury or harm allegedly
       caused by an event, measures are taken which, if taken previously, would have
       made the injury or harm less likely to occur, evidence of the subsequent measures
       is not admissible to prove negligence or culpable conduct in connection with the
       event. This rule does not require the exclusion of evidence of subsequent
       measures when offered for another purpose, such as proving ownership, control,
       or feasibility of precautionary measures, if controverted, or impeachment.

Id.

       {¶24}     This court discussed the purpose and policy underlying Evid.R. 407 in Hill v. W.

Res. Catering, Ltd., 8th Dist. Cuyahoga No. 93930, 2010-Ohio-2896:

       Evid.R. 407 prohibits the admission of evidence of subsequent remedial measures
       to prove negligence or culpable conduct. It provides: “[w]hen, after an injury or
       harm allegedly caused by an event are taken which, if taken previously, would
       have made the injury or harm less likely to occur, evidence of the subsequent
       measures is not admissible to prove negligence or culpable conduct in connection
       with the event.”

Id.
       {¶25} In examining Evid.R. 407, the Ohio Supreme Court in McFarland v. Bruno Mach.

Corp., 68 Ohio St.3d 305, 1994-Ohio-62, 626 N.E.2d 659, noted that:



       The policy reasons for Evid.R. 407 have been stated as resting on two grounds.
       The first justification for the rule is that evidence of subsequent remedial
       measures is thought to have minimal or nonexistent probative value in
       establishing negligence. Taking subsequent remedial action is not an admission of
       negligence. The rationale is that the injury may have been caused by reason of
       mere accident or through the plaintiff’s contributory negligence. The second
       explanation for excluding evidence under this rule is based on the social policy of
       encouraging repairs or corrections. The argument behind this policy reason is that
       a defendant would be less likely to take subsequent remedial measures if the
       repairs or corrections could be used as evidence against the defendant at trial.

(Emphasis sic.) Id. at 307-308; Hill at ¶ 16-17.

       {¶26}   The rule also contemplates an equitable evidentiary balance: “Evid.R. 407,

however, does not prohibit testimony as to remedial measures when offered to show ownership

or control, the feasibility of precautionary measures or impeachment purposes.” Elder v. Summit

Mfg., 8th Dist. Cuyahoga No. 70797, 1997 Ohio App. LEXIS 1078,*12 (Mar. 20, 1997), citing

Felden v. Ashland Chem. Co., 91 Ohio App.3d 48, 60-61, 631 N.E.2d 689 (8th Dist. 1993).

       {¶27} Paulozzi argues that the Plan is the smoking gun in this case because it proves

that the improper swale dimensions were the cause of the damage to the north end of Paulozzi’s

retaining wall and that defense testimony that the swale had not been modified was inaccurate.

In other words, Paulozzi asserts that the Plan reflecting the subsequent remedial measure

demonstrates that the Iannottis were negligent, which is exactly the result Evid.R. 407 was

designed to prevent.

       {¶28}    In addition, Paulozzi asserts that the Plan does not fall within the purview of the

rule because the applicable test is “whether the evidence demonstrates that measures were
actually ‘taken.’” Paulozzi has failed to cite pertinent case law in support of this premise and

this court is not persuaded that her position has merit. See, e.g., Swaisgood v. Puder, 6th Dist.

Erie No. E-06-033, 2007-Ohio-307 (finding that an interoffice email advocating alternative

placement of a utility pole to prevent future accidents was evidence of remedial measures and

inadmissible pursuant to Evid.R. 407); Bishop v. Nelson Ledges Quarry Park, Ltd., 11th Dist.

Portage No. 2004-P-0008, 2005-Ohio-2656 (holding that an expert report referencing safety

improvement suggestions issued by the county to the defendant park after the accident in

question was not admissible under Evid.R. 407).

       {¶29}    The Plan is entitled “Swale Modification Plan for Joseph and Karen Iannotti.”

It is a site plan of the Iannottis’ Lot containing a June 13, 2014 date of preparation, the parcel

number, and sketch of buildings on the Iannottis’ Lot, and various measurements and depictions

of topography, easements, and improvements. The Plan contains the legend, “exist. elev./prop.

elev.,” and an indication to “extend swale.” It further provides that “ALL WORK SHALL

REMAIN ON THE IANNOTTI PROPERTY. ELEVATIONS FOR THE PROPOSED SWALE

ARE THE BOTTOM OF THE SWALE.                   PLACE RIVER ROCK IN THE SWALE AS

NEEDED TO MAINTAIN 3:1 SIDE SLOPES ON THE SWALE ABOVE THE RIVER

ROCK.”

       {¶30}    The content of the Plan could reasonably be deemed by the trial court to contain

sufficient indicia of remedial purpose and activity regarding the swale and to be more prejudicial

than probative in this case.      The title of the document clearly provides indication of

modifications to the swale and other remedial work to be performed pursuant to the Plan.

       {¶31}    This court has previously stated that “Evid.R. 407, 408, and 409 all forbid the

introduction of certain evidence that might lead to the ‘inference’ of liability.”         Paul v.
Metrohealth St. Luke’s Med. Ctr., 8th Dist. Cuyahoga No. 71195, 1998 Ohio App. LEXIS

4964,*41 (Oct. 22, 1998). We cannot say that the trial court abused its discretion in excluding

the Plan on this ground.

       {¶32}    Paulozzi additionally argues that the Plan was admissible for impeachment

purposes, an exception to Evid.R. 407.       Instructive here is the Illinois Supreme Court’s

admonition regarding the impeachment exception to the exclusion of subsequent remedial

measures:

       The flaw in the appellate court’s reasoning is that the sole value of the
       impeachment rests on the impermissible inference that the subsequent measures
       are admissible evidence of prior negligence. Defendant’s witnesses testified only
       that the single sign present on the roadway was adequate. In order for the evidence
       of the subsequent signs to be considered impeaching, we must accept the premise
       that the conduct of placing additional signs contradicts the witnesses’ testimony
       and supports the view that the original condition was unsafe. However, this
       premise directly contradicts the assumptions that support the general rule
       regarding subsequent remedial measures. Just as evidence of subsequent remedial
       measures is not considered sufficiently probative to be admissible to prove prior
       negligence, that evidence is not admissible for impeachment where the sole value
       of the impeachment rests on that same impermissible inference of prior
       negligence.

       Allowing such evidence in these circumstances would swallow the general rule
       prohibiting the introduction of subsequent remedial measures and frustrate the
       policy considerations that support it. In every case, a defendant will dispute that
       his prior conduct was negligent. Once a defendant disputes his or her negligence
       at trial, a plaintiff could always seek to introduce evidence of subsequent remedial
       measures under the guise of impeachment. Thus, the general rule of excluding
       evidence of subsequent remedial measures would be swallowed by the
       impeachment exception. Furthermore, contrary to the policies supporting the
       general rule, parties to lawsuits would be discouraged from making improvements
       for fear that such actions would be used against them at trial.

(Emphasis added.) Herzog v. Lexington Twp., 167 Ill.2d 288, 301-302, 212 Ill.Dec. 581, 657

N.E.2d 926 (1995); see also Carson v. CSX Transp., Inc., 400 S.C. 221, 235, 734 S.E.2d 148

(2012); citing Herzog and United Tool Rental, Inc. v. Riverside Contr., Inc., 361 Mont. 493,

2011 MT 213, 260 P.3d 156.
        {¶33}   Paulozzi’s witnesses testified that there was an observable reduction in the

swale-depth in a limited area.     The defense witnesses testified that the 2010 landscaping

activities did not involve or include modifications to the swale and they did not observe changes

in the area where the work was conducted. The Plan data did not serve to impeach this

testimony nor did it conflict with Hejduk’s statement that there was evidence of a “measurable

swale.” Further, “even if the proffered [evidence] had been relevant, it was, at best, cumulative

given the other testimony elicited at trial and thus, its probative value was substantially

outweighed by its prejudicial effect.” Warkoczeski v. Speedway SuperAmerica, L.L.C., 3d Dist.

Auglaize No. 2-09-26, 2010-Ohio-2518, ¶ 42.

        {¶34}   We also find that, pursuant to Evid.R. 403, the risk of prejudice was greater than

the probative value. “[E]vidence is not admissible under Evid.R. 403(A) only if it presents a

danger of unfair prejudice that substantially outweighs its probative value.” Haynal v. Nordonia

Hills City School Dist., 9th Dist. Summit No. 25242, 2011-Ohio-3191, ¶ 11.

        {¶35}   The crux of appellant’s suit is that the Plan setting forth the actual measures and

implemented to change the swale dimensions is evidence of negligence. As with the purpose of

the bar to introduction of subsequent remedial measures under Evid.R. 407, introduction of the

evidence could easily cause a jury to assume that the modification and settlement equated to an

admission of guilt.

        {¶36}   The record demonstrates that Paulozzi had ample opportunity to secure evidence

of the swale dimensions in this case. There were municipal records from 1997 documenting the

swale dimension requirements, municipal permits approving the installation, documents in

appellant’s possession from the initial lawsuit and those accumulated since the refiling of the

suit.
        {¶37}   Pivotal here, appellant was on notice for several years that the Iannottis had hired

Hejduk to assist them and were also using him as an expert in this case. Paulozzi actually

attended and observed Hejduk’s inspection and survey in 2013. In spite of these facts, Paulozzi

failed to depose Hejduk regarding his findings, measurements, working papers, or other

information.

        {¶38} “The purpose of these rules is to provide procedures for the adjudication of causes

to the end that the truth may be ascertained and proceedings justly determined.” Evid.R. 102.

Allowing the introduction of evidence designed to demonstrate that appellees must be culpable

or else there would not have been a remedial action taken thwarts this purpose.

        {¶39}   As this court stated in Texler v. D.O. Summers Cleaners & Shirt Laundry Co.,

8th Dist. Cuyahoga No. 69523, 1998 Ohio App. LEXIS 3628 (Aug. 6, 1998):

        To determine whether an error in the admission of evidence warrants reversal of a
        verdict, the error must either affect a substantial right of a party or be found to
        have caused a substantial injustice. Petti v. Perna (1993), 86 Ohio App.3d 508,
        514, 621 N.E.2d 580. To determine whether a substantial right of a party has been
        affected, a reviewing court must ascertain whether the jury would have reached
        the same decision had the error not occurred.

Id. at *5.

        {¶40}    The record is replete with documents, deposition testimony, exhibits, and

transcripts of testimony by numerous witnesses at the trial. Paulozzi had the alleged smoking gun

in her possession prior to trial, yet took no steps to engage in discovery to ensure that evidence

was placed before the jury. Clearly the jury was not convinced that appellant’s argument was

supported by the evidence and there has been no substantive demonstration here that the

exclusion of the Plan substantially impacted Paulozzi’s rights and would have resulted in a

decision in her favor.
       {¶41} We find that the trial court properly excluded the Plan. The trial court’s order is

affirmed.

       B.      Iannottis’ Cross-Appeal

       {¶42}     The Iannottis argue that the trial court erred in failing to assess costs in their

favor. We affirm the trial court’s finding.

               1.       Standard of Review

       {¶43} A trial court has broad discretion to assess costs, and the court’s ruling will not be

reversed absent an abuse of that discretion. 2115-2121 Ontario Bldg., L.L.C. v. Anter, 8th Dist.

Cuyahoga Nos. 98255 and 98296, 2013-Ohio-2993, ¶ 1. The term abuse of discretion implies

that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore, 5 Ohio St.3d at

219, 450 N.E.2d 1140.

               2.       Law and Analysis

       {¶44}        Civ.R. 54(D) provides that “[e]xcept 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.” The Ohio Supreme Court’s “interpretation of Civ.R. 54(D) is that the phrase

‘unless the court otherwise directs’ grants the court discretion to order that the prevailing party

bear all or part of his or her own costs.” (Footnote omitted.) Vance v. Roedersheimer, 64 Ohio

St.3d 552, 555, 597 N.E.2d 153 (1992). The court also stated that it differed from the lower

court’s decision in that “we do not believe that such phrase empowers the court to award costs to

a non-prevailing party.” Id.     Thus, we examine which party is the prevailing party in this case.

       {¶45} Polling the jury for the record after the verdict, the transcript provides:

       The Court: Did the plaintiff prove by a preponderance of the evidence that the
       defendant failed to use reasonable care, created a risk of foreseeable harm to
       plaintiffs? The answer is in the negative, no.
       *       *         *

       The Court: [D]id the defendant prove by the preponderance of the evidence that
       the plaintiff trespassed against the defendant, the answer is in the negative no.

       *       *         *

       THE COURT: Obviously based upon these responses the Court will enter
       judgment in favor of the defendant.

(Tr. 1001 and 1002.)

       {¶46}       The trial court then clarified that “[b]ased upon the interrogatories I will enter

judgment for the defendant as it relates to the claim and for the plaintiff as relates to the

trespass.” (Tr. 1004.) Thus, the record reflects that neither party, or both parties depending on

perspective, prevailed on its claims. From either perspective, the trial court’s entry reflecting that

each party will bear its own costs does not constitute an abuse of the trial court’s discretion.

       {¶47}        The cross-appellants’ assigned error is overruled. The trial court’s order is

affirmed. The trial court’s judgment as to costs on appellees’ cross-appeal is also affirmed.

III.   CONCLUSION

       {¶48}       The trial court’s judgment on appellant’s direct appeal is affirmed and its

judgment on appellees’ cross-appeal is also affirmed.

       It is ordered that the parties bear their own costs herein taxed.

       The court finds there were reasonable grounds for these appeals.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., A.J., and
MARY J. BOYLE, J., CONCUR
