[Cite as Ihenacho v. Ohio Inst. of Photography & Technology,

.]

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 :

:

..........

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),

, 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.,

,

. “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.,

, 466,

, citing Marion

Production Credit Assn. v. Cochran (1988),

. “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).”

{¶ 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,

. A litigant proceeding pro se “cannot expect or demand

special treatment from the judge, who is to sit as an impartial arbiter.”

(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,

. “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),

. 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),

, 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),

; Union Savings Bank v. The White Family Cos.,

Inc.,

,

. 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,

. 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),

. 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),

; citing

Johnson v. Edinboro State College (C.A. 3, 1984),

. 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,

,

.

{¶ 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),

; Collins v. National City

Bank, Montgomery App. No. 19884,

.

{¶ 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),

. 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,

, ¶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.,

, 128,

. 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),

(adopting the guidelines set forth in

McDonnell Douglas Corp. v. Green (1973),

,

,

); 14

Coryell v. Bank One Trust Co. N.A.,

,

.

{¶ 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),

. 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),

. 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),

.

{¶ 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,

,

.

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,

, 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),

. 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),

. 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),

. 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),

.

{¶ 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),

. 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),

. The non-moving party must then 17

present evidence that some issue of material fact remains for the trial court to resolve.

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,

.

{¶ 49} The construction of written contracts is a matter of law, Alexander v. Buckeye

Pipe Line Co. (1978),

, 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,

,

. 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.,

, 313,

. When terms of a contract are unambiguous, courts

look to the plain language of the document. Latina v. Woodpath Dev. Co. (1991),

. 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,

,

, 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.”

(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

(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),

,

. 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),

,

. 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),

.

{¶ 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),

,

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),

, 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),

.” 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,

,

. 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),

; Miller v. Wikel Mfg. Co., Inc. (1989),

. 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