[Cite as Ihenacho v. Ohio Inst. of Photography & Technology, 2011-Ohio-3730.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CHARLES IHENACHO :
Plaintiff-Appellant : C.A. CASE NO. 24191
v. : T.C. NO. 09CV3316
OHIO INSTITUTE OF PHOTOGRAPHY : (Civil appeal from AND TECHNOLOGY Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 29th day of July , 2011.
KENDALL D. ISAAC, Atty. Reg. No. 0079849, 341 S. Third Street, Suite 10, Columbus, Ohio 43215 Attorney for Plaintiff-Appellant
CHARLES IHENACHO, 5310 Westbrook Road, Clayton, Ohio 45315 Plaintiff-Appellant
RICHARD A. TALDA, Atty. Reg. No. 0023395 and SASHA ALEXA M. VANDEGRIFT, Atty. Reg. No. 0080800, 33 W. First Street, Suite 600, Dayton, Ohio 45402 Attorneys for Defendant-Appellee
.......... 2
DONOVAN, J.
{¶ 1} Plaintiff-appellant Charles Ihenacho appeals multiple decisions of the
Montgomery County Court of Common Pleas, General Division, to wit: the decision
granting defendant-appellee Ohio Institute of Photography and Technology’s (hereinafter
“OIPT”) motion for default judgment regarding its counterclaims against Ihenacho; the
decision granting OIPT’s motion for judgment on the pleadings regarding Ihenacho’s claims
for conversion, fraud, discrimination, and emotional distress; the decision granting OIPT’s
motion for summary judgment regarding Ihenacho’s claims for breach of contract and
negligence; and the decision overruling Ihenacho’s motion to strike the testimony of OIPT
witness Patricia Shoope regarding Ihenacho’s financial aid status while enrolled at OIPT.
The trial court issued a Civ. R. 58(B) notice of a final appealable order in the instant case on
August 3, 2010. Ihenacho filed a timely notice of appeal with this Court on August 6, 2010.
I
{¶ 2} Ihenacho applied for admission into OIPT’s criminal justice associate degree
program in January of 2005. Ihenacho’s expected graduation date was in August of 2006.
In order to finance his education at OIPT, Ihenacho applied for federal student financial aid
in the form of grants and loans by submitting a Free Application for Financial Student
Assitance (“FAFSA”) to the United States Department of Education. Ihenacho’s eligibility
for the 2004-2005 award year determined his financial aid eligibility from February of 2005
to June of 2005. Ihenacho indicated on his FAFSA that he was not a U.S. citizen, but rather
an eligible non-citizen. Ihenacho also indicated that he had not registered with Selective
Service. Ihenacho listed his address on the FAFSA as 5941 Culzean Drive, Apt. 1018, 3
Trotwood, OH 45426. Ihenacho also listed the Culzean Drive address as his home address
on his OIPT enrollment application.
{¶ 3} After submitting his FAFSA for review, Ihenacho received his first Financial
Aid Award Letter from OIPT on January 13, 2005. The first award letter estimated
Ihenacho’s financial aid award with the Federal Pell Grant, Ohio Institutional Grant, and
Federal Stafford Loans to be $22,451.00. Ihenacho received a second award letter on
February 1, 2005, which estimated his financial aid award to be $25,385.00, which was the
total cost of the criminal justice program. Thus, Ihenacho had no out-of-pocket expenses.
{¶ 4} Ihenacho was admitted as a student, and OIPT sent him an acceptance letter
on January 24, 2005. On February 2, 2005, the Department of Education sent Ihenacho an
Institutional Student Informational Report (“February ISIR”) which indicated two problems
with his eligibility for federal financial aid, namely that Ihenacho had not provided proof of
his citizenship status, nor had he complied with the Selective Service requirement. The
February ISIR indicated that it was sent to the Culzean Drive address provided by Ihenacho
on his FAFSA. Despite these problems, OIPT ostensibly received a financial aid check
from the Department of Education, and Ihenacho began classes on February 16,2005.
{¶ 5} Approximately eight months later, the Department of Education sent
Ihenacho a second ISIR on September 19, 2005, to the Culzean Drive address. The
September ISIR stated that Ihenacho had still not complied with the Selective Service
requirement. There is no evidence in the record which establishes that Ihenacho responded
to the Department of Education or attempted to provide the information requested in either
ISIR. 4
{¶ 6} According to OIPT, in early January of 2006, Ihenacho was contacted by
school officials who informed him that he needed to resolve his financial aid issues by
providing proof of his Selctive Service exemption. Ihenacho failed to provide the requested
information. As a result, Ihenacho failed to establish that he was eligible for certain types
of financial aid, and OIPT was required to refund his financial aid to the Department of
Education. Thus, Ihenacho owed a tuition balance to OIPT. Nevertheless, Ihenacho
continued to attend classes at OIPT.
{¶ 7} In February of 2006, Ihenacho provided OIPT with a copy of his Permanent
Resident Card and Visa which indicated his entry date into the United States. In so doing,
Ihenacho satisfied the Selective Service requirement, thereby prospectively assuring his
eligibility for federal financial aid. However, Ihenacho’s satisfaction of the Selective
Service requirement was not retroactive. Since the 2004-2005 award year was over,
Ihenacho was not entitled to financial aid during that time, and OIPT could not credit him
for the financial aid award that it was required to refund to the Department of Education.
{¶ 8} OIPT asserted that it unsuccessfully attempted multiple times to contact
Ihenacho in order to address his unpaid tuition balance, but he failed to make any payments
or obtain alternative funding for his educational expenses for the award year of 2004-2005.
In late May or early June of 2006, OIPT cancelled Ihenacho’s enrollment in light of the
unpaid tuition balance. According to OIPT, Ihenacho was informed that he owed
approximately $16,194.00 in unpaid tuition. As a result, Ihenacho was not permitted to take
his final examinations and complete the degree program.
{¶ 9} Ihenacho subsequently attempted to enroll at Southwestern College and 5
Urbana University. OIPT, however, refused to forward his transcript, and Ihenacho was
denied admittance to both schools.
{¶ 10} Ihenacho filed a complaint against OIPT on April 23, 2009. On May 21,
2009, OIPT filed a motion for a more definitive statement, which the trial court granted on
August 6, 2009. In response, Ihenacho filed his “Reply Memorandum ” on August 11,
2009, which the trial court accepted as his amended complaint, in which he alleged that
OIPT breached its enrollment agreement when it terminated him as a student. The trial
court noted that Ihenacho “asserted claims against [OIPT] for what presumably are breach of
contract, intentional or negligent infliction of emotional distress, conversion, fraud,
negligence, discrimination, and punitive damages.” On September 14, 2009, OIPT filed an
answer, as well as several counterclaims against Ihenacho, alleging action on account,
breach of contract, and unjust enrichment. Essentially, OIPT argued that Ihenacho was in
breach for failure to pay the tuition balance on his account left due when OIPT was forced to
return his financial aid to the Department of Education in light of his failure to satisfy the
Selective Service requirement.
{¶ 11} Ihenacho failed to file an answer or other responsive pleading to OIPT’s
counterclaims, and on November 3, 2009, OIPT filed a motion for default judgment on its
counterclaims and a motion for judgment on the pleadings. On November 13, 2009,
Ihenacho filed his answer and a motion to dismiss OIPT’s motion for default judgment.
OIPT filed a motion to strike all of Ihenacho’s responsive pleadings, including his answer,
on December 4, 2009. On January 10, 2010, the trial court granted OIPT’s motion to strike.
On January 29, 2010, the court granted OIPT’s motion for default judgment on its 6
counterclaims, finding that Ihenacho’s reasons for failing to timely file his answer did not
constitute excusable neglect. The trial court also granted OIPT’s motion for judgment on
the pleadings in part, thereby dismissing Ihenacho’s claims for conversion, intentional or
negligent infliction of emotional distress, fraud, discrimination, and punitive damages. The
trial court denied OIPT’s motion for judgment on the pleadings regarding Ihenacho’s claims
for negligence and breach of contract.
{¶ 12} On June 18, 2010, OIPT filed a motion for summary judgment with respect to
Ihenacho’s remaining claims for negligence and breach of contract. The trial court
sustained OIPT’s motion for summary judgment in its entirety in a decision issued on
August 3, 2010. In the same decision, the trial court overruled Ihenacho’s motion to strike
the affidavit testimony of Patricia Shoope, attached in support of OIPT’s motion for
summary judgment.
{¶ 13} Ihenacho’s appeal is now properly before this Court.
II
{¶ 14} Initially, we note that Ihenacho has failed to comply with the requirements of
Rule 16 of the Ohio Rules of Appellate Procedure. Pursuant to App. R. 16(A)(3) & (4), an
appellate brief must contain a statement of the assignments of error presented for review,
with reference to the place in the record where each error is reflected, as well as a statement
of the issues presented for review. Ihenacho’s brief does contain a section where he lists his
“Arguments (A)” and “(B).” In section (A), Ihenacho specifically states that the trial court
erred when it granted OIPT’s motion for default judgment, motion for judgment on the
pleadings, and motion for summary judgment. In section (B), Ihenacho argues that the trial 7
court erred when it overruled his motion to strike the affidavit of Patricia Shoope.
Ihenacho’s brief, however, fails to provide any supporting legal or factual citations as
required by App. R. 16(A)(7) regarding his assertions that the court erred when it granted
OIPT’s motion for judgment on the pleadings and motion for summary judgment.
{¶ 15} Under App. R. 12(A)(2), an appellate court may refuse to consider Ihenacho’s
assigned errors. The rules are applicable to all parties whether or not they proceed on a pro
se basis. While we are mindful that such omissions authorize this court to either strike the
offending portions of Ihenacho’s brief or sua sponte dismiss his appeal for failure to comply
with App. R. 16, in the interests of justice, we will review the merits of Ihenacho’s claims.
III
{¶ 16} Ihenacho’s assignments in “Arguments: (A)” are as follows:
The trial court erred when it granted OIPT’s motion for default judgment.
{¶ 17} In his first argument, Ihenacho contends that the trial court erred when it
granted OIPT’s motion for default judgment because he provided sufficient evidence of
excusable neglect.
{¶ 18} “Civ.R. 12(A)(1) provides that a defendant shall serve his answer within
twenty-eight days after service of the complaint. Pursuant to Civ.R. 6(B), upon motion made
after the expiration of the specified period, the trial court may permit a defendant to file an
answer if his failure to do so was the result of excusable neglect. Although Civ.R. 6(B)
grants broad discretion to the trial court, its discretion is not unlimited. Miller v. Lint (1980),
62 Ohio St.2d 209, 214 * * *. Generally, some showing of excusable neglect is a necessary
prelude to the filing of an untimely answer.” Alldred v. Alldred (Nov. 6, 1998), Montgomery 8
App. No. 17043.
{¶ 19} “Neglect under Civ.R. 6(B)(2) has been described as conduct that falls
substantially below what is reasonable under the circumstances.” Davis v. Immediate
Medical Services, Inc., 80 Ohio St.3d 10, 14, 1997-Ohio-363. “The determination of whether
neglect is excusable or inexcusable must take into consideration all the surrounding facts and
circumstances, and courts must be mindful of the admonition that cases should be decided
on their merits, where possible, rather than procedural grounds.” State ex rel. Lindenschmidt
v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466, 1995-Ohio-49, citing Marion
Production Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271. “Although excusable
neglect cannot be defined in the abstract, the test for excusable neglect under Civ.R. 6(B)(2)
is less stringent than that applied under Civ.R. 60(B).” Id.
{¶ 20} Ihenacho filed his amended complaint on August 11, 2009. On August 28,
2009, OIPT was granted an extension of time by the trial court in which to file its answer to
Ihenacho’s amended complaint. OIPT filed its answer, as well as its counterclaims for
action on account, breach of contract, and unjust enrichment, on September 14, 2009.
Ihenacho did not file an answer or other responsive pleading within the twenty-eight day
window provided by Civ.R. 12(A)(1), that date being October 13, 2009. On November 3,
2009, approximately three weeks after the twenty-eight day deadline, OIPT filed a motion
for default judgment and a motion for judgment on the pleadings.
{¶ 21} Ihenacho did not file a motion to dismiss OIPT’s motion for default judgment
until November 13, 2009. In his motion to dismiss, Ihenacho argued that he had to travel
out of state to Maryland to retrieve an automobile. Ihenacho stated that he left on 9
November 5, 2009, and returned to Ohio on November 6, 2009. Ihenacho attached copies
of hotel and gas station receipts in support of his assertion. Ihenacho also argued that he
was acting as a pro se litigant and should be afforded lenient treatment by the trial court.
{¶ 22} Upon review, we conclude that the trial court did not abuse its discretion
when it granted OIPT’s motion for default judgment finding that Ihenacho had failed to
establish that his failure to file a timely answer was caused by excusable neglect. Ihenacho
stated that he was out of town on November 5 & 6, 2009, a two-day period falling
approximately three weeks after his answer was due. More importantly, Ihenacho provided
no explanation regarding why he failed to file his answer between September 14, 2009, and
October 13, 2009.
{¶ 23} We also note that Ihenacho’s pleas for leniency are not well taken.
“Litigants who choose to proceed pro se are presumed to know the law and correct
procedure, and are held to the same standard as other litigants.” Yocum v. Means, Darke
App. No. 1576, 2002-Ohio-3803. A litigant proceeding pro se “cannot expect or demand
special treatment from the judge, who is to sit as an impartial arbiter.” Id. (Internal
citations omitted). Thus, the trial court did not err when it granted OIPT’s motion for
default judgment regarding its counterclaims.
(2) The trial court erred when it granted OIPT’s motion for judgment on the
pleadings regarding Ihenacho’s claims for conversion, fraud, discrimination,
and emotional distress.
{¶ 24} In his second argument, Ihenacho asserts that the trial erred when it granted
OIPT’s motion for judgment on the pleadings regarding Ihenacho’s claims for conversion, 10
fraud, discrimination, and emotional distress.
{¶ 25} Civ. R. 12(C) provides: “After the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the pleadings.” “A copy of
any written instrument attached to a pleading is a part of the pleading for all purposes.”
Civ.R. 10(C). “A motion for judgment on the pleadings pursuant to Civ.R. 12(C) presents
only questions of law,” and the standard of review is de novo. Dearth v. Stanley,
Montgomery App. No. 22180, 2008-Ohio-487. “Determination of a motion for judgment
on the pleadings is restricted solely to the allegations in the pleadings and any writings
attached to the complaint. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165. Dismissal
is appropriate under Civ.R. 12(C) when, after construing all material allegations in the
complaint, along with all reasonable inferences drawn therefrom in favor of the nonmoving
party, the court finds that the plaintiff can prove no set of facts in support of its claim that
would entitle it to relief. State ex rel. Midwest Pride IV, Inc. v. Pontius (1996), 75 Ohio
St.3d 565, 570.” Id.
Conversion
{¶ 26} Conversion is an exercise of dominion or control wrongfully exerted over
property in denial of or under a claim inconsistent with the rights of another. Joyce v. Gen.
Motors Corp. (1990), 49 Ohio St.3d 93, 96; Union Savings Bank v. The White Family Cos.,
Inc., 167 Ohio App.3d 51, 2006-Ohio-2629. Typically, “[t]he elements of a conversion
cause of action are: (1) plaintiff’s ownership or right to possession of the property at the time
of the conversion; (2) defendant’s conversion by a wrongful act or disposition of plaintiff’s
property rights; and (3) damages.” Haul Transport of VA, Inc. v Morgan (June 2, 1995), 11
Montgomery App. No. 14859; see Knoop v. Knoop, Montgomery App. No. 22037,
2007-Ohio-5178, ¶20. Where conversion is premised on the unlawful retention of property,
the plaintiff must establish: “(1) he or she demanded the return of the property from the
possessor after the possessor exerted dominion or control over the property, and (2) that the
possessor refused to deliver the property to its rightful owner.” Barnes v. First American
Title Ins. Co. (N.D. Ohio, Aug. 8, 2006), Case No. 1:06CV574, citing Tabar v. Charlies’s
Towing Serv., Inc. (1994), 97 Ohio App.3d 423, 427-28. Where an action for conversion is
based on the conversion of cash, the action will lie “only if ‘identification is possible and
there is an obligation to deliver the specific money in question.’” Haul, Montgomery App.
No. 14859.
{¶ 27} Ihenacho argues that OIPT is liable for conversion based on its refusal to send
his transcripts to Southwestern College and Urbana University, thereby depriving him of his
property rights. Other than his bare assertion that his rights were violated when OIPT
withheld his transcripts, Ihenacho fails to provide us with any legal authority that he was the
rightful owner of the transcripts at the time OIPT refused to release the documents. “*** A
university may withhold a transcript if arrangements to repay the loan or discharge the debt
are lacking.” Juras v. Aman Collection Serv. (C.A. 9, 1987), 829 F.2d 739, 743; citing
Johnson v. Edinboro State College (C.A. 3, 1984), 728 F.2d 163. OIPT was within its
rights to withhold the transcripts until it received payment from Ihenacho on the unpaid
tuition balance. Thus, the trial court did not err when it dismissed Ihenacho’s claim for
conversion.
(b) Fraud 12
{¶ 28} Under Civ. R. 8(A), a complaint or other pleading, such as a counterclaim,
that sets forth a claim for relief “shall contain a short and plain statement of the claim
showing that the party is entitled to relief.” However, where a pleading sets forth a claim of
fraud or mistake, Civ.R. 9(B) requires that “the circumstances constituting fraud or mistake
shall be stated with particularity.” Sutton Funding, L.L.C. v. Herres, 188 Ohio App.3d 686,
697, 2010-Ohio-3645.
{¶ 29} A claim for common law fraud requires proof of the following elements: (1) a
representation or, where there is a duty to disclose, concealment of a fact, (2) which is
material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it is true or false that knowledge may be
inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance
upon the representation or concealment, and (6) a resulting injury proximately caused by the
reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169; Collins v. National City
Bank, Montgomery App. No. 19884, 2003-Ohio-6893, ¶39.
{¶ 30} “Failure to specifically plead the operative facts constituting an alleged fraud
presents a defective claim that may be dismissed. Universal Coach, Inc. v. New York
Transit Authority, Inc. (1993), 90 Ohio App.3d 284. The ‘particularity’ requirement of
Civ.R. 9(B) means that the pleading must contain allegations of fact which tend to show
each and every element of a cause of action for fraud.” Rieger v. Podeweltz, Montgomery
App. No. 23520, 2010-Ohio-2509, ¶9.
{¶ 31} Ihenacho argued in his complaint that he was somehow misled by OIPT into
thinking that he would be allowed to attend classes even if he had an unpaid, outstanding 13
tuition balance. Ihenacho, however, fails to specify when OIPT or anyone acting on its
behalf informed him that he would not be responsible for tuition if he did not have financial
aid. Additionally, Ihenacho specifically stated that he was informed by school officials that
he would not be allowed to attend classes if he failed to pay his outstanding tuition balance.
Upon review, we find that Ihenacho has failed to specifically plead any operative facts
constituting an alleged fraud. Thus, the trial court did not err when it dismissed his claim
for fraud.
(c) Discrimination
{¶ 32} In his complaint, Ihenacho supports his claim for discrimination by simply
stating that “the school might be playing racial/minorities discrimination.”
{¶ 33} R.C. 4112.02 provides that it is an unlawful discriminatory practice:
{¶ 34} "(A) For any employer, because of the race, color, religion, sex, national
origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to
hire, or otherwise to discriminate against that person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any matter directly or indirectly related to
employment."
{¶ 35} A claim of discrimination may be proven by either direct or circumstantial
evidence. Byrnes v. LCI Communication Holdings Co., 77 Ohio St.3d 125, 128,
1996-Ohio-307. To establish a discrimination claim based upon circumstantial evidence, a
plaintiff must initially demonstrate a prima facie case of discrimination. Id. at 128, citing
Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146 (adopting the guidelines set forth in
McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668); 14
Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723.
{¶ 36} Other than his bare assertion in that regard, Ihenacho provided no factual
basis for his claim that there “might” be some racial discrimination. Without any additional
facts to support his claim, Ihenacho has not demonstrated a prima facie case of
discrimination. Accordingly, Ihenacho’s statement regarding OIPT’s alleged discriminatory
behavior is insufficient to constitute a valid claim for racial discrimination, and the trial
court did not err when it dismissed his claim.
(d) Negligent and/or Intentional Infliction of Emotional Distress
{¶ 37} In order to be actionable on a claim of intentional infliction of emotional
distress, an actor’s conduct must be extreme and outrageous. Hanley v. Riverside Methodist
Hospital (1991), 78 Ohio App.3d 73. To satisfy that standard, the acts concerned must by
their nature go beyond all possible bounds of decency so as to be considered utterly
intolerable in a civilized community. Pyle v. Pyle (1983), 11 Ohio App.3d 31. Liability
for intentional infliction of emotional distress “does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.” Yeager v. Local Union 20
(1983), 6 Ohio St.3d 369, 375.
{¶ 38} Upon review, we conclude that Ihenacho failed to make sufficient factual
allegations in order to constitute a claim for intentional infliction of emotional distress.
Ihenacho has failed to allege facts that OIPT possessed the requisite intent to cause him
severe emotional distress, or that OIPT’s actions were so outrageous as to go beyond all
possible bounds of decency. Additionally, we have recently noted that under Ohio law,
plaintiffs cannot recover damages for emotional distress from a breach of contract. Hacker v. 15
Natl. College of Business and Technology, 186 Ohio App.3d 203, 2010-Ohio-380.
Accordingly, Ihencaho has failed to plead sufficient facts to support a claim for intentional
infliction of emotional distress.
{¶ 39} In Potter v. RETS Tech Center Co., Inc., Montgomery App. No. 22012,
22014, 2008-Ohio-993, we stated the following:
{¶ 40} “The availability of a claim for relief for negligent infliction of emotional
distress was first recognized in Ohio in Paugh v. Hanks (1983), 6 Ohio St.3d 72. In that
case, serious emotional distress was allegedly suffered by a parent who feared her children
were in peril when automobiles accidentally left the road and collided into her home. The
issue was whether the emotional distress the parent allegedly suffered was reasonably
foreseeable to the drivers, when the parent suffered no physical harm.
{¶ 41} “Cases in which claims for relief for negligent infliction of emotional distress
have been held to lie have, like Paugh v. Hanks, involved distress suffered by a bystander
who witnessed a sudden and shocking event, such as an auto accident, that did or reasonably
could result in injury to other persons. We have held that one who witnesses the negligent
damaging of his property over a period of time arising out of the ongoing negligence of the
defendant may not recover for emotional distress experienced as a result. Reeser v. Weaver
Brothers (1989), 54 Ohio App.3d 46. Further, when the distress which is suffered is a part
of the harm directly and proximately resulting from underlying event, a separate claim for
relief for the distress allegedly suffered will not lie.”
{¶ 42} In Potter, we held that a claim for negligent infliction of emotional distress
does not lie on account of an individual’s termination as a student by a school or learning 16
institution. Thus, the trial court did not err when it dismissed Ihenacho’s claim for
negligent infliction of emotional distress.
(3) The trial court erred when it granted OIPT’s motion for summary regarding
Ihenacho’s claims for breach of contract and negligence.
{¶ 43} In his third argument, Ihenacho contends that the trial court erred when it
granted OIPT’s motion for summary judgment regarding his remaining claims for breach of
contract and negligence.
{¶ 44} An appellate court reviews an award of summary judgment de novo. Grafton
v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial
court, viewing the facts in the case in a light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983),
13 Ohio App.3d 7, 12.
{¶ 45} Pursuant to Civil Rule 56(C), summary judgment is proper if:
{¶ 46} “(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is made, that
conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d
317, 327. To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment as a matter of
law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The non-moving party must then 17
present evidence that some issue of material fact remains for the trial court to resolve. Id.
Breach of Contract
{¶ 47} Ihenacho argues that OIPT had a contractual obligation to ensure that his
tuition was completely covered by financial aid. Further, Ihenacho asserts that OIPT
breached its enrollment contract with him when it terminated him as a student after he failed
to pay off the outstanding balance on his tuition bill.
{¶ 48} “The essential elements of a cause of action for breach of contract are the
existence of a contract, performance by the plaintiff, breach by the defendant and resulting
damage to the plaintiff.” Flaim v. Med. College of Ohio, Franklin App. No. 04AP-1131,
2005-Ohio-1515, at ¶ 12.
{¶ 49} The construction of written contracts is a matter of law, Alexander v. Buckeye
Pipe Line Co. (1978), 53 Ohio St.2d 241, paragraph one of the syllabus, and a trial court's
construction of a contract is reviewed de novo. Nationwide Mut. Fire Ins. Co. v. Guman
Bros. Farm, 73 Ohio St.3d 107, 108, 1995-Ohio-214. The purpose of contract construction
is to discover and effectuate the intent of the parties, and the intent of the parties is presumed
to reside in the language they chose to use in the agreement. Graham v. Drydock Coal Co.,
76 Ohio St.3d 311, 313, 1996-Ohio-393. When terms of a contract are unambiguous, courts
look to the plain language of the document. Latina v. Woodpath Dev. Co. (1991), 57 Ohio
St.3d 212, 214. The contract must also be interpreted as a whole, with the intent of each part
gathered from a consideration of the whole. Saunders v. Mortensen, 101 Ohio St.3d 86,
2004-Ohio-24, at ¶16.
{¶ 50} “An agreement altering the rights of the parties under a written contract must 18
be based on sufficient consideration. Likewise, an agreement to modify a contract requires
consideration. Thus, an oral agreement to modify a prior written agreement must be
founded on a new consideration that is distinct from the consideration supporting the prior
agreement; it cannot be supported on the supposition that it is founded on the continuation or
extension of the consideration of the prior written contract that is complete in itself.” 17
Ohio Jurisprudence 3d (2008) 390, Contracts, Section 41 (citations omitted).
{¶ 51} Neither party disputes that the Educational Installment Contract and the
Enrollment Agreement govern the parties’ contractual relationship. OIPT’s Educational
Installment Contract, signed by Ihenacho on February 1, 2005, provided that grants in the
amount of $14,276.00 and loans in the amount of $11,109.00 would pay Ihenacho’s total
program fees at the school. The Contract also provided as follows:
{¶ 52} “PROMISE TO PAY: You promise to pay us the Amount Financed together
with finance charges at the Annual Percentage Rate disclosed in the Truth in Lending
Disclosure Statement. Your finance charges begin to accrue 30 days prior to the date of
your first payment.
{¶ 53} “FINANCIAL AID PAYMENTS: If the amount of your financial aid
changes or is not made as scheduled, then you agree to pay us upon our request the CASH
PRICE that the financial aid would have paid.”
{¶ 54} The Installment Contract clearly required Ihenacho to pay the balance on his
tuition bill, even if his financial aid did not supply payment in full. OIPT’s Enrollment
Agreement, signed by Ihenacho, specifically provided that the school had the right to cancel
Ihenacho’s enrollment for “failure to meet financial obligations to [OIPT].” Upon 19
Ihenacho’s prolonged failure to pay his outstanding tuition balance, OIPT had the right to
cancel his enrollment. Although Ihenacho asserts that OIPT had a contractual obligation to
ensure that his tuition was completely covered by financial aid, there is no evidence in the
record that OIPT had such a duty under either the Installment Contract or the Enrollment
Agreement. Rather, Ihenacho’s obligation to pay his tuition was in no way contingent upon
his receipt of financial aid. Ihenacho argues that the two Financial Aid Estimate Letters he
received prior to his enrollment gave him the impression that he was not required to pay any
amount of his tuition “out of pocket.” The Estimate Letters, however, specifically state that
they are only estimates. More importantly, the Estimate Letters in no way modify or negate
Ihenacho’s duty to pay his tuition to the school, as evidenced by the express requirements set
out in the Installment Contract and the Enrollment Agreement.
{¶ 55} Under the express and unambiguous terms of the Installment Contract,
Ihenacho was obligated to pay his tuition regardless of any financial award. We also note
that Ihenacho failed to submit any evidence evidencing an intent on the part of OIPT to
modify any of the express language in either the Installment Contract or the Enrollment
Agreement. Viewed in a light most favorable to Ihenacho, we conclude that he has failed to
establish that a genuine issue exists regarding his breach of contract claim.
(b) Negligence
{¶ 56} Ihenacho contends that the trial court erred when it held that no genuine issue
existed regarding his claim for negligence against OIPT. Specifically, Ihehacho asserts that
OIPT was negligent for failing to ensure that he was eligible for financial aid. In the
alternative, Ihenacho argues that OIPT breached its duty to him when it returned the 20
financial aid that was distributed to Ihenacho, but for which he had failed to demonstrate his
eligibility to receive.
{¶ 57} The Military Selective Service Act (MSSA) provides that a person who is
required to register with the Selective Service but fails to do so “shall be ineligible for any
form of assistance or benefit provided under Title IV of the Higher Education Act of 1965.”
50 U.S.C. § 462(f)(1); Maxwell v. NYU (C.O.A. 2, December 8, 2010), 407 Appx. 524. §
462(f)(2) of the MSSA further requires applicants for Title IV assistance to file a statement
with their school attesting to their compliance with the registration requirements. Martin v.
Moran (W.D. Mich. 1990), U.S. Dist. Case No. 1:89-CV-827. “If the student does not file
the Statement, the school ‘may not’ provide aid.” Id.; citing 34 C.F.R. § 668.33(a)(1).
{¶ 58} In the instant case, Ihenacho was notified in two separate ISIRs that his
failure to register with Selective Service jeopardized his financial aid eligibility. Both ISIRs
were sent to the address Ihenacho provided on his FAFSA and his Enrollment Agreement
with OIPT. Pursuant to statutory mandate, Ihenacho had a duty to ensure that he satisfied
the Department of Education’s financial aid eligibility requirements by providing a
Statement of Registration status that he either registered with Selective Service, or that he
was exempt for a specific reason, in order to receive federal student financial assistance.
Because Ihenacho failed to satisfy the eligibility requirements, OIPT had no other choice but
to refund his financial aid back to the Department of Education.
{¶ 59} There is no evidence in the record that Ihenacho complied with the Selective
Service requirement until February of 2006, well after OIPT was forced to refund his
financial aid due to his failure to prove his statutory eligibility. OIPT presented undisputed 21
evidence that Ihenacho, for unknown reasons, failed to register with Selective Service for the
award year of 2004-2005 until it was too late to cure. OIPT also presented evidence that it
was Ihenacho’s duty, not OIPT’s, to ensure that he fulfilled all of the Department of
Education’s statutory requirements to prove his eligibility for federal financial aid. In light
of the foregoing, Ihenacho had failed to establish that a genuine issue exists regarding his
claim against OIPT for negligence, and the trial court did not err when it granted OIPT’s
motion for summary judgment on his claims for breach of contract and negligence.
IV
{¶ 60} Ihenacho’s assignments in “Arguments: (B)” are as follows:
The trial court erred by allowing Patricia Shoope to testify at the damages
hearing held April 22, 2010, since she did not have personal knowledge of
Ihenacho’s tuition account with OIPT.
{¶ 61} Initially, we note that Ihenacho has failed to file a written transcript of the
damages hearing. Thus, we are unable to review Shoope’s testimony regarding the status of
Ihenacho’s tuition account at OIPT.
{¶ 62} In reviewing an assigned error on appeal, pursuant to App. R. 12(A)(1)(b), we
are confined to the record that was before the trial court as defined in App. R. 9(A). See
Lamar v. Marbury (1982), 69 Ohio St.2d 274, 277, 431 N.E.2d 1028. App. R. 9(A)
identifies the record on appeal as consisting of “the original papers and exhibits thereto filed
in the trial court, the transcript of the proceedings, if any, including exhibits, and a certified
copy of the docket and journal entries prepared by the clerk of the trial court ***.”
{¶ 63} App. R. 9(A) provides if the transcript of the proceedings is in the video tape 22
medium, counsel for appellant shall print or type those portions of the transcript necessary
for the court to determine the questions presented, shall certify their accuracy, and append
such copy of the portions of the transcript to the brief. Additionally, App. R. 9(B) imposes
the duty on an appellant to file a transcript of the proceedings underlying the final order or
judgment from which the appeal is taken and concerning which the appellant seeks appellate
review. State ex rel. Montgomery v. R & D Chem. Co. (1995), 72 Ohio St.3d 202,
1995-Ohio-21. If the transcript is not included in the record, the court of appeals must
presume the validity of the trial court’s proceedings unless error of law is demonstrated.
Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199.
{¶ 64} “A party challenging a trial court’s judgment has the duty under App.R. 9(B)
and 10(A) to properly file a record of the proceedings with the reviewing court to
demonstrate its claims of error. Rose Chevrolet, Inc. V. Adams (1988), 36 Ohio St.3d 17,
19 * * * . ‘When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower court’s
proceedings, and affirm.’ Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 200
* * * .” Chester v. Commsys, Inc. (April 7, 2000), Montgomery App. No. 17793.
{¶ 65} Ihenacho’s brief does not comply with the appellate rules, and given the
absence of a written transcript of the record of the damages hearing, we must presume the
validity of the trial court’s proceedings, in particular the court’s decision to allow Shoope to
testify regarding her knowledge of Ihenacho’s tuition account at OIPT.
(2) The trial court erred when it considered the affidavit of Patricia Shoope that 23
was attached in support of OIPT’s motion for summary judgment.
{¶ 66} In his final assignment, Ihenacho contends that the trial court abused its
discretion by considering the averments in Shoope’s affidavit attached to OIPT’s motion for
summary judgment. Specifically, Ihenacho argues that Shoope did not have sufficient
personal knowledge to testify regarding the contents of his financial aid file.
{¶ 67} Civ.R. 56(E) states that “supporting and opposing affidavits shall be made on
personal knowledge, and shall set forth such facts as would be admissible in evidence, and
show affirmatively that the affiant is competent to testify to the matters stated therein . . .”
“‘Personal knowledge’ is defined as, ‘knowledge of the truth in regard to a particular fact or
allegation, which is original, and does not depend on information or hearsay. Personal
knowledge of an allegation in an answer is personal knowledge of its truth or falsity; and if
the allegation is a negative one, this necessarily includes a knowledge of the truth or falsity
of the allegation denied.’ Black’s Law Dictionary (6 Ed. 1990) 873, citing Hidalgo v.
General Fire & Cas. Co. (La.App. 1971), 254 So.2d 493, 496.” Haack v. Bank One,
Dayton, N.A. (April 11, 1997), Montgomery App. No. 16131.
{¶ 68} In her affidavit, Shoope stated that as Regional Director of Financial Aid for
Kaplan Higher Education, the parent company of OIPT, she had access to all former and
present OIPT students’ financial aid files, including Ihenacho’s file. Shoope specifically
stated that she had personal knowledge of the contents of Ihenacho’s financial aid file.
{¶ 69} Ihenacho argues that Shoope did not personally prepare the financial aid
documents about which she was testifying, but that argument is without merit. An
individual with personal knowledge of a set of documents need not have created said 24
documents in order to testify as to the their authenticity. Great Seneca Fin. v. Felty, 170
Ohio App.3d 737, 2006-Ohio-6618. In the instant case, it was unimportant that Shoope did
not personally create Ihenacho’s financial aid records. Shoope never claimed that she had
any personal interaction with Ihenacho. As Regional Director of Financial Aid for Kaplan,
however, Shoope stated that she had the requisite personal knowledge of Ihenacho’s
financial aid file in order to testify as to its contents. Other than his bare assertion that
Shoope had no personal knowledge regarding his financial aid file, Ihenacho presented the
trial court with no evidence upon which to challenge the statements made in her affidavit.
Accordingly, the trial court did not err when it considered Shoope’s affidavit in conjunction
with OIPT’s motion for summary judgment.
{¶ 70} Lastly, Ihenacho asserts on appeal that Shoope’s affidavit testimony is
hearsay and should not have been considered by the trial court as evidence for summary
judgment. Ihenacho, however, did not raise this issue before the trial court in his motion to
strike Shoope’s affidavit. It is axiomatic that a party cannot raise new arguments for the
first time on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. Of Elections (1992), 65
Ohio St.3d 175, 177; Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78. Thus, we
need not address the merits of Ihenacho’s argument in this regard.
V
{¶ 71} All of Ihenacho’s assignment having been overruled, the judgment of the trial
court is affirmed.
FROELICH, J. and HALL, J., concur. 25
Copies mailed to:
Kendall D. Isaac Charles Ihenacho Richard A. Talda Sasha Alexa M. VanDeGrift Hon. Mary Katherine Huffman