COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68561 LESLIE MICHAELS, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : CHRISTELL ADEN, ET AL. : OPINION : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-250931. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: Robert D. Wilson, Esq. 3690 Orange Place, Suite 515 Cleveland, OH 44122-4428 For Defendants-Appellants: Marillyn Fagan Damelio, Esq. Jennifer L. Vinciguerra, Esq. Lakeside Place, Suite 410 323 Lakeside Avenue, West Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Christell Aden, defendant-appellant, appeals the trial court's granting of Leslie Michaels, et.al's., plaintiffs-appellees', motion for a new trial. Appellant also appeals the trial court's granting of appellees' motion for reimbursement of costs and the court's denial of appellant's Civ.R. 60(A) motion to correct a clerical mistake in the judgement entry. This court, finding error, reverses the decision of the trial court and remands this case for further proceedings consistent with this opinion. I. STATEMENT OF FACTS On January 15, 1992, an automobile driven by Christell Aden, defendant-appellant, collided with the automobile of Leslie Michaels, plaintiff-appellee. Plaintiff-appellee's son, Steven Michaels, was also in the vehicle which was stationary at the time of the accident. On April 23, 1993, Leslie and Steven Michaels, plaintiffs- appellees, filed a complaint with jury demand against Christell Aden, defendant-appellant, for damages sustained from the accident. Our Redeemer Baptist Church was also named in the complaint on the theory of negligent entrustment but was later voluntarily dismissed by the parties. Christell Aden, defendant-appellant, admitted negligence in letting her automobile make contact with appellees' automobile. Thus, the only issue left for trial was the extent of damages, if any, that were proximately caused by defendant- appellant's negligence. -3- A trial commenced October 18, 1994. After presentation of plaintiffs-appellees' case, defendant-appellant motioned for a directed verdict based upon plaintiffs-appellees' failure to establish by a preponderance of evidence any damages proximately caused by appellant's negligence. The trial court denied defendant-appellant's motion. Subsequently, in an effort to properly dispose of the issue of negligence, the court granted plaintiffs-appellees' motion for directed verdict based solely upon defendant-appellant's stipulated negligence. On October 20, 1994, the jury returned a verdict for the defendant with nothing placed on the line allowing for an award for either Leslie or Steven Michaels. The court questioned the jury whether they had found for plaintiff but found no damages and the foreman replied they had not. The foreman responded they found there were no damages proximately caused by the appellant's negligence. Plaintiffs-appellees' counsel then motioned for judgment notwithstanding the verdict to fill in "zero damages" on the part of plaintiff. The judge responded that it was unimportant at the moment and proceeded to assess costs to the defendant. The final judgment entry reads "jury returns a verdict for the [plaintiffs] for no dollars." On November 3, 1994, Leslie Michaels, et al., plaintiffs- appellees, timely filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion was based upon: 1) the alleged misconduct of the prevailing party, 2) the verdict was inadequate and given under the influence of passion -4- or prejudice, 3) the judgment was not sustained by the weight of the evidence and 4) the judgment was contrary to law. On November 15, 1994, Christell Aden, defendant-appellant, filed a motion under Civ.R. 60(A) to correct what she claimed was a clerical mistake on the October 24, 1994 judgment entry. Defendant-appellant argues according to the unanimous verdict of the jurors, the verdict was for defendant-appellant as the jury found no damages proximately resulting from the stipulated negligence. On the 18th of November, plaintiffs-appellees filed a motion for reimbursement for the playing and recording of videotape depositions at the trial. A hearing was subsequently scheduled for said post-judgment motions on January 13, 1995. On January 18, 1995 the trial court denied defendant-appellant's motion and granted plaintiffs-appellees' motion for reimbursement and motion for a new trial. Defendant-appellant timely filed this appeal. II. FIRST ASSIGNMENT OF ERROR Christell Aden's, defendant-appellant's, first assignment of error provides: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT'S CIVIL RULE 60(A) MOTION. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S CIV.R. 60(A) MOTION. Defendant-appellant argues the trial court erred in denying appellant's Civ.R. 60(A). Specifically, defendant-appellant argues the trial court erred in failing to correct the final -5- judgment entry to hold defendant-appellant as the prevailing party in accordance with the juries determination. Defendant-appellant's first assignment of error is not well taken. B. STANDARD: CIVIL RULE 60(A). The authority of the trial court to correct clerical errors can be found in Civ.R. 60(A) which reads in pertinent part: Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. This rule allows the court, in its discretion, to correct clerical mistakes which are apparent on the record and are mechanical in nature. Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116. It does not allow a court to change what was deliberately done such as legal decisions or judgments. See Londrico v. Delores C. Knowlton, Inc. (1993), 88 Ohio App.3d 282. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S CIV.R. 60(A) MOTION. In the case sub judice, the judgment entry designated plaintiff as the prevailing party and the award of zero damages. However, when the jury returned their verdict the following transpired: THE BAILIFF: Your honor, the jury is present. Court is in session. THE COURT: The forelady, would you hand Leo the verdict form? -6- All right. In this case the jury reached the following decision: The jury in this case, being duly impaneled and sworn, upon the concurrence of the undersigned jurors, being not less than three-fourths, do find for the Defendant. Nothing has been placed on the line allowing an award for either the Plaintiff, Leslie Michaels or Steven Michaels, and signed by all eight. * * * THE COURT: I have indicated to the lawyers I was going to ask the foreman, you can answer for the others. In this case negligence was stipulated. Does the verdict for the defendant mean that you found for the plaintiff, but found no damages? THE FOREMAN: No, Your Honor. THE COURT: Found no damages? THE FOREMAN: No damages and that there was no proximate cause for the injuries. THE COURT: All right. You are entitled to have reached that verdict. Thus, the jury found the prevailing party to be defendant- appellant by determining there were no damages proximately caused by defendant-appellant's stipulated negligence. The mere fact negligence was stipulated does not automatically render defendant-appellant liable for injuries unless the jury determines the negligence proximately caused the injuries. See Selwyn v. McCord (Nov. 18, 1993), Cuyahoga App. No. 64066, unreported. Since the jury determined plaintiffs-appellees -7- failed to prove proximate causation and damages, defendant- appellant should have been designated the prevailing party. However, as previously noted, a Civ.R. 60(A) motion cannot be used to correct a deliberate decision of the trial court. As evinced by the transcripts from the post-judgment motion hearing, the trial court's decision was intentional: THE COURT: Well, you keep insisting that he's (plaintiff's) not the prevailing party. He won on the issue of liability. They did not award damages. He is the prevailing party. That's what you objected to from the beginning counsel, and you're wrong on that issue. You say that he is not the prevailing party. MS. DAMELIO: I'm saying -- THE COURT: He won in the original case. MS. DAMELIO: The jury found for the defendant. The jury returned a verdict for the defendant. THE COURT: Well, I guess you'll have to be told the opposite is true when you go across the street here on this case, if that's your intent. Accordingly, the designation of plaintiffs-appellees as the prevailing party was a deliberate decision of the trial court and not a clerical error. In a similar situation, we stated in Musca v. Chagrin Falls (1981), 3 Ohio App.3d, 192, 194, that "[w]hile Rule 60(B) is the obvious rule of choice when a party is instituting procedures for vacating judgment, that rule specifically requires a motion to activate it -- and none was filed." Accordingly, since a Civ.R. 60(A) motion cannot be used -8- to correct such an error/mistake, the trial court did not err in denying the motion. Defendant-appellant's first assignment of error is not well taken. III. THIRD ASSIGNMENT OF ERROR In an effort for continuity, we will address Christell Aden's, defendant-appellant's, third assignment of error: III. THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS/APPELLEES' MOTION FOR NEW TRIAL BASED UPON CIVIL RULE 59(A)(2); (A)(4); (A)(6) AND (A)(7). A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFFS-APPELLEES' MOTION FOR A NEW TRIAL. Defendant-appellant argues the trial court abused its discretion in granting plaintiffs-appellees' motion for a new trial. Specifically, defendant-appellant argues Civ.R. 59(A)(2) does not apply since: 1) defendant-appellant is truly the prevailing party and 2) not only did plaintiffs-appellees' counsel fail to object to the supposed prejudicial statements, but the trial court did not even acknowledge a prejudicial statement had occurred. Defendant-appellant also argues Civ.R.59(A)(4) would only apply if the jury had awarded excessive or inadequate damages. Since the jury determined the defendant-appellant is not liable to plaintiffs-appellees, Civ.R. 59(A)(4) does not apply. Finally, defendant-appellant argues the trial court erred in failing to specify grounds for granting of plaintiffs-appellees' motion for a new trial. -9- Defendant-appellant's third assignment of error is well taken. -10- B. STANDARD OF REVIEW: MOTION FOR A NEW TRIAL. Whether to grant a motion for new trial is up to the discretion of the trial court. Verbon v. Pennese (1982), 7 Ohio App.3d 182. Absent clear evidence that the trial court acted unreasonably, unconscionably, or arbitrarily and rendered a decision which was clearly wrong and without legal basis, the trial court's decision must be affirmed. See Castlebrook, Ltd. v. Dayton Properties (1992), 78 Ohio App.3d 340; Scandinavian Health Spa v. Civil Rights Comm. (1990), 64 Ohio App.3d 480. C. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO SPECIFY THE BASIS FOR GRANTING PLAINTIFFS-APPELLEES' MOTION FOR A NEW TRIAL. Civ.R. 59(A) states that when a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted. It is well established that a trial court commits reversible error when it fails to articulate the reasons for granting a motion for a new trial in order to allow a reviewing court to determine whether the trial court abused its discretion. Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144; Jiminez v. Ramos (1985), 25 Ohio App.3d 58. It is for this reason this court previously reversed and remanded this case back to the trial court. However, merely stating that the verdict was "not sustained by the weight of the evidence" or is "against the manifest weight of the evidence" is insufficient to comply with this requirement. Antal, supra at 147; Gedetsis v. Cement (December 3, 1992), Cuyahoga App. No. 61211, unreported. Likewise, granting a motion -11- for a new trial merely based upon "the misconduct of the prevailing party" or that the judgement is "contrary to law" is insufficient. Accordingly, the trial court committed reversible error by failing to articulate the reasons for its granting of plaintiffs-appellees' motion for a new trial. This case is therefore remanded for further proceedings consistent with this opinion. III. SECOND ASSIGNMENT OF ERROR Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFFS/APPELLEES' MOTION FOR REIMBURSEMENT OF COSTS INCURRED DURING TRIAL. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFFS-APPELLEES' MOTION FOR REIMBURSEMENT. Defendant-appellant argues the trial court abused its discretion in granting plaintiffs-appellees' motion for reimbursement. Specifically, defendant-appellant argues since the trial court erred in designating plaintiffs-appellees the prevailing party, it subsequently erred in awarding deposition costs to plaintiffs-appellees as the "prevailing party". B. REIMBURSEMENT OF COSTS. Civ.R. 54(D) establishes the general guidelines for the assessment of costs: Except 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 directs otherwise. -12- Court costs are generally awarded to the prevailing party unless directed otherwise, that is, costs are ordinarily borne by the non-prevailing party. See, Vannoy v. Capital Lincoln-Mercury Sales, Inc. (1993), 88 Ohio App.3d 138. Although this rule grants the court some discretion to order the prevailing party to bear its own costs, it does not permit such costs to be awarded to the nonprevailing party. Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555. Generally, "costs" are those items fixed and taxable according to statute. Brenda v. Fana (1967), 10 Ohio St.2d 259. However, in accordance with Barrett v. Singer Co. (1978), 60 Ohio St.2d 7, this court has recognized the validity of the rules for superintendence as they relate to court costs, and in particular, court costs of videotape depositions. Coleman v. Jagniszcak (June 1, 1995), Cuyahoga App. No. 67991, unreported; Carr v. Lunney (May, 18, 1995), Cuyahoga App. No. 67353, unreported. With regards to the trial court's awarding of costs to appellee, we note C.P.Sup.R. 12(D) provides: (D) Costs. (1) Videotape Depositions. (a) The expense of videotape as a material shall be borne by the proponent. (b) The reasonable expense of recording testimony on videotape shall be costs in the action. (c) The expense of playing the videotape recording at trial shall be borne by the court. -13- (d) The expense of playing the videotape recording for the purpose of ruling upon objections shall be borne by the court. (e) The expense of a copy producing the edited version of the videotape recording shall be costs in the action, provided that the expense of the videotape, as a material, shall be borne by the proponent of the testimony. (f) The expense of a copy of the videotape recording and the expense of an audiotape recording of the videotape sound track shall be borne by the party requesting the copy. Thus, the expense for recording and playing the three videotape depositions are properly included as court costs. See, also, Friday v. Rice (1987), 39 Ohio App.3d 113. C. AS THIS CASE IS BEING REMANDED, THIS ASSIGNMENT OF ERROR IS RENDERED MOOT. A review of the post-judgment motion hearing transcript demonstrates the sole reason for awarding plaintiffs-appellees these costs was due to the trial court's designation of plaintiffs-appellees as the prevailing party. However, due to this court's determination in plaintiffs-appellees' third assignment of error, the case is being remanded for further proceedings. As such, the assessment of costs in this matter is considered moot. See App.R. 12(A)(1)(c); Webster v. Oglebay Norton Co. (January 26, 1995), Cuyahoga App. No. 65502, unreported. This case is remanded for further proceedings consistent with this opinion. -14- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants recover of said appellees costs herein. It is ordered that a special mandate be sent to said court 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. HARPER, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .