CHARLES IHENACHO v. OHIO INSTITUTE OF PHOTOGRAPHY AND TECHNOLOGY
C.A. CASE NO. 24191
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
July 29, 2011
2011-Ohio-3730
T.C. NO. 09CV3316
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
OPINION
{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
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} 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.
{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
{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
{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
{15} Under
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} ”
{19} “Neglect under
{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
{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
{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,
{25}
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), 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. Charlie‘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
{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
{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
(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}
{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);
{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. Natl. College of Business and Technology, 186 Ohio App.3d 203, 2010-Ohio-380. Accordingly, Ihenacho 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
(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
{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
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
{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
{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, Ihenacho 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
{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.”
{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
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
{63}
{64} “A party challenging a trial court‘s judgment has the duty under
{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
{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}
{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
{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.
DONOVAN, J.
FROELICH, J. and HALL, J., concur.
Kendall D. Isaac
Charles Ihenacho
Richard A. Talda
Sasha Alexa M. VanDeGrift
Hon. Mary Katherine Huffman