COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71279 : IN RE: : ESTATE OF ANNA SHIWAY : : JOURNAL ENTRY : : and : : OPINION : : : : : DATE OF ANNOUNCEMENT MAY 22, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Probate Court Division of Common Pleas Court JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Appellant For Appellees Leona Hudak Reiner: Conrad Spoke and Nicholas Spoke: LEONA HUDAK REINER, Pro Se JAMES D. SHELBY, ESQ. 65 Judwin Avenue 55 Public Square, Suite 1260 New Havin, CT 06515 Cleveland, OH 44113-1992 -2- PATRICIA ANN BLACKMON, J.: Leona Hudak Reiner, defendant-appellant, appeals the trial court's dismissal of her claim for costs against Conrad and Nicholas Spoke, the executor and attorney for the estate of Anna 1 Shiway. After reviewing the seven assigned errors, the record, and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. An application to probate Ann Shiway's will was filed on May 1, 1995 by Conrad Spoke, executor under the will. Conrad Spoke's attorney was his father, Nicholas Spoke. The will, dated December 19, 1989, contained two codicils. One of the codicils was dated April 30, 1993 and the other was dated December 29, 1993. The application listed Shiway's niece, Leona Hudak Reiner, as her only known descendant. The original will contained the following statement about Reiner: I have not maintained a close social relationship with any of my relatives in the United States. In fact, my niece Leona Hudak Reiner and her son Eric Reiner, who lived with me at my home, were unkind to me and were responsible for causing me great emotional disturbance. It is my wish to disinherit them as well as their issue. I specifically disinherit the said Leona Hudak Reiner and her issue from receiving any portion of my estate, in favor of the legatees and devisees hereinafter named, all of whom now reside in Europe. I do not know where Leona Hudak Reiner lives and have no interest in finding her. I also disinherit her mother Anna Hudak and her issue. 1 See Appendix. -3- The first codicil stated: Although I have expressed disapproval of my niece Leona Hudak Reiner, who has caused me much suffering when she lived at my home several years ago, I do hereby will and bequeath to her the sum of Ten Thousand Dollars ($10,000). If she should predecease me, said sum shall be paid to her son Eric Reiner. Accordingly, I do hereby amend my said Last Will and Testament*** The second codicil increased the amount of the bequest to Fifteen Thousand Dollars ($15,000). On August 13, 1995, Reiner filed a claim against Shiway's estate for $8450. Reiner alleged Shiway, acting on the advice of Nicholas Spoke, wrongfully accepted money from the estate of Reiner's uncle Jan Hudak and gave it away to two residents of Czechoslovakia. Reiner alleged Spoke ignored the existence of a will executed by Hudak in Cleveland, Ohio that left his assets to Reiner's mother, Anna Hudak. Reiner filed a motion seeking the release of Shiway's medical records and for an accounting and release of Shiway's personal papers and accounts. She also filed a motion for declaratory judgment either sealing Shiway's will or striking from it allegedly defamatory statements about Reiner, her mother, and son. On January 24, 1996, Reiner settled her claims against Shiway's estate. Under the settlement, the estate agreed to pay $15,000 to Reiner as her bequest under the will, $5000 to Anna Hudak for money due from the Jan Hudak estate, and $12,500 to Anna Hudak for the care and expenditures incurred by her on behalf of -4- Anna Shiway from April 1, 1980 to May 1, 1983. Reiner agreed to waive all claims against the estate except a "Ukrainian blanket/wall hanging and silverplate and chest, service for twelve." The agreement also provided that Reiner would dismiss with prejudice pending legal action against the estate. According to the agreement, "the dismissals shall be with prejudice at costs to the Estate of Anna Shiway." The settlement was journalized in the Probate Court on April 29, 1996. On July 8, 1996, Reiner filed a motion to show cause why the estate should not be held in contempt of the April 29, 1996 order. Reiner alleged the estate had not paid her costs nor had it delivered the silver and the Ukrainian wall hanging/blanket. She attached an itemized list of "costs" including amounts paid for filing, parking, transportation, air fare, meals, postage, and phone calls in connection with her claim against the Shiway estate. A hearing was held on the motion on August 21, 1996. Reiner did not appear at the hearing. Nicholas Spoke testified there was no silver or Ukrainian wall hanging/blanket. The Probate Court denied the Show Cause motion in an order dated August 21, 1996. The court found "the expenses that [Reiner] alleges to be costs are not costs but expenses and are, therefore, not to be paid by the estate." This appeal followed. In her first assignment of error, Reiner argues the trial court erred in refusing to enforce the settlement agreement by ordering the Shiway estate to pay her costs and to give her the silver and the wall hanging. Reiner argues her expenses for -5- travel, lodging, filing, copying, transportation, etc. should have been paid by the estate. To support her argument, Reiner cites Jones v. Pierson (1981), 2 Ohio App.3d 447, which held that funds expended by a party that are necessary and vital to the litigation must be characterized as taxable litigation expenses normally awarded as costs to the prevailing party. She also cites Welter v. Welter (1971), 27 Ohio Misc. 44 and Harpole v. Harpole (1986), 27 Ohio App.3d 289 for the proposition that expenses incurred in connection with travel to out-of-state hearings or trials are taxable as valid costs. The Ohio Supreme Court has defined costs as "the statutory fees to which officers, witnesses, jurors, and others are entitled for their services in an action." Cunningham v. Goodyear Tire & Rubber Co. (1995), 104 Ohio App.3d 385, 395 [citing Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50]. Unless expressly permitted by statute to be taxed as costs, litigation expenses are not considered costs. Id. Travel expenses, copying expenses, delivery charges, computerized legal research, expert witness fees, and telephone bills have been held not to be allowable as "costs." See Cincinnati ex rel Simons v. Cincinnati (1993), 86 Ohio App.3d 258, 266 [citing In re Election of Nov. 6, 1990 (1991), 62 Ohio St.3d 1]. In this case, the type of expenditures for which Reiner sought recovery were litigation expenses, not costs. Accordingly, the probate court did not err in refusing to order the Shiway estate to reimburse her for those expenditures. -6- With respect to the silver and the wall hanging, the probate court concluded that the items did not exist. The probate court's findings of fact enjoy a presumption of correctness. See Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77, 79-80. When reviewing its factual findings, our review is limited to determining whether the probate court had competent, credible, evidence to support its conclusion. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The court conducted a hearing on the show cause and heard testimony from Nicholas Spoke that the items did not exist. No evidence was presented to the contrary. Under the circumstances, we must defer to the probate court's finding. Reiner's first assignment of error is overruled. In her second assignment of error, Reiner argues her due process rights were violated by the probate court's decision to approve the final and distributive account before her cost claim was resolved. The order directing the Shiway estate to pay costs was issued on April 29, 1996. The final distributive account was filed on June 20, 1996 and it included a disbursement of $198.90 in court costs. Reiner's show cause motion was filed on July 8, 1996, long after the distributive account was filed. Despite Reiner's argument to the contrary, the costs claim was not pending at the time the final distributive account was filed. Shiway's second assignment of error is overruled. In her third assignment of error, Reiner argues the probate court erred in ruling that her other claims for relief were moot. The issues raised in Reiner's fourth, fifth, and seventh -7- assignments of error all pertain to claims raised by Reiner against the Shiway estate. By signing the settlement agreement of January 24, 1996, Reiner agreed to release and discharge Nicholas and Conrad Spoke from "any and all claims involving the estate of Anna Shiway and all claims for activities occurring during the lifetime of said decedent." Consequently, we overrule Reiner's third, fourth, fifth, and seventh assignments of error. In her sixth assignment of error, Reiner argues the probate court erred by failing to docket many of the pleadings she filed in the case. However, she fails to specify what pleadings are allegedly missing. Under App.R. 16(A)(7), an appellant must separately argue each error assigned in her brief and identify the place in the record where the error complained of is reflected. Without information about what pleadings are allegedly missing or the dates they were submitted for filing, we are unable to address 2 this assignment of error. Finding no merit to any of Reiner's assignments of error, we affirm the decision of the trial court. Judgment affirmed. 2 However, to the extent that such pleadings pertain to additional claims against the Shiway estate, any error by the Probate Court in failing to file the pleadings would be harmless in light of the settlement agreement signed by Reiner. -8- It is ordered that Appellees recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate Court Division 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. Exceptions. JAMES D. SWEENEY, C.J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -9- APPENDIX ASSIGNMENTS OF ERROR 1. THE PROBATE COURT'S [sic] ERRED IN REFUSING TO ENFORCE THROUGH CONTEMPT THE PROVISIONS OF A SETTLEMENT- AGREEMENT/ JUDGMENT ENTRY, ENTERED INTO BETWEEN THE HUDAK/REINER CLAIMANTS AND THE EXECUTOR OF THE ESTATE, WHICH THE EXECUTOR OF THE ESTATE, WHICH THE EXECUTOR RENEGED ON AND THE PROBATE COURT "REFORMED" WITHOUT CONSIDERATION TO THE CLAIMANTS. II. THE PROBATE COURT'S [sic] DENIED APPELLANT DUE PROCESS AND EQUAL PROTECTION UNDER THE U.S. CONSTITUTION WHEN IT REFUSED TO ENFORCE ALL THE TERMS OF THE CONSENT AGREEMENT/JUDGMENT ENTRY, IN VIOLATION OF 42 USC 1983 AND ENGAGED IN FRAUD. III. THE PROBATE COURT ERRED IN DECLARING ALL OF APPELLANT'S OTHER CLAIMS FOR RELIEF "MOOT," PARTICULARLY FOR AN ACCOUNTING BY NICHOLAS SPOKE, DECEDENT'S POWER OF ATTORNEY, AS TO HIS FEES, ALL HER ASSETS AND THEIR DISPOSITION, ACCESS TO HER RECORDS, MEDICAL, BUSINESS, AND PERSONAL, AND FOR OTHER FORMS OF DISCOVERY. IV. THE PROBATE COURT ERRED IN REFUSING TO SEAL THE WILL, STRIKE OFFENSIVE PORTIONS OR TO PAY DAMAGES FOR THE DEFAMATORY REFERENCES TO CLAIMANTS THEREIN WHICH WERE NOT DISPOSITIVE OF BEQUESTS AND HOLDS THEM UP TO HATRED AND SCORN IN THE COMMUNITY, IN ADDITION TO HAVING NO BASIS IN FACT. V. THE PROBATE COURT ERRED IN ALLOWING AN EXORBITANT ATTORNEY FEE PURPORTEDLY TO NICHOLAS SPOKE, ESTATE ATTORNEY, WHO DID NOT PREVAIL IN THE HUDAK/REINER CLAIMS, WHICH FEE IN FACT ALSO COVERED HIS PRIVATE ATTORNEY'S FEE, WHILE DENYING AN ATTORNEY FEE TO THE PREVAILING PARTY, WHO HAD BEEN SUBJECTED TO THEIR JOINT BAD FAITH, GENDER ABUSE, VEXATIOUSNESS, OBDURACY, ETC. VI. THE PROBATE COURT ABUSED ITS POWER IN SANITIZING THE ANNA SHIWAY ESTATE FILE OF MANY OF THE HUDAK/REINER PLEADINGS OF FAILING TO DOCKET OR FILE THEM. VII. THE PROBATE COURT ERRED IN NOT REMOVING THE EXECUTOR AND .