Ihenacho v. Ohio Inst. of Photography & Technology

[Cite as Ihenacho v. Ohio Inst. of Photography & Technology, 2012-Ohio-2797.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CHARLES IHENACHO :
Plaintiff-Appellant : C.A. CASE NO. 24560
v. : T.C. NO. 09CV3316
OHIO INSTITUTE OF PHOTOGRAPHY : (Civil appeal from
AND TECHNOLOGY Common Pleas Court)
Defendant-Appellee :
:
..........
OPINION
Rendered on the 22nd day of June , 2012.
..........
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
Attorney for Defendant-Appellee
..........
2
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Charles
Ihenacho, filed April 5, 2011. Ihenacho appeals from the March 9, 2011 decision of the
trial court which awarded attorney fees and costs to the Ohio Institute of Photography &
Technology (“OIPT”), where Ihenacho had been a student.
{¶ 2} On January 28, 2011 a hearing was held on OIPT’s motion for attorney fees
and costs. Ihenacho, who appeared pro se, moved the court to dismiss OIPT’s motion on
the basis that his appeal relating to the underlying judgment herein was pending in this
Court. The trial court overruled Ihenacho’s motion to dismiss at the hearing, determining
that OIPT’s right to seek attorney fees and costs was independent from the issues pending in
Ihenacho’s appeal.
{¶ 3} We initially note that Ihenacho’s brief does not comply with the
requirements of Rule 16 of the Ohio Rules of Appellate Procedure, which provides that 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. Instead, Ihenacho lists the following “reasons” that the
trial court’s decision is erroneous:
(1) I was denied the right to present a witness.
(2) I was denied the right for attorney to represent me on this trial.
3
(3) The trial was inconclusive because I did not cross examine the
defendant on all her claims because the court denied my request for an
attorney and to present witness.
(4) Defendant (OIP&T) claims for fees and cost were irregular,
erroneous and bogus in nature.
(5) This is a civil case not criminal and I think by law I deserved the
right for a free and faire (sic) trial without any bias or prejudice. Moreover, I
did not sign any waiver of my right; therefore my right as a human being still
exists.
(6) The CD/transcripts revealed that I requested the right to be
represented by attorney and requested that the court allow me the opportunity
to present my witness.
(7) Defendant attorneys invited me and my witness (Pastor Gary
Trenium) in their office for intoragations (sic) for hours and hours but refused
to present the deposition materials/interviews to the court for fairness trial.
{¶ 4} The transcript of the hearing reflects that, after the trial court overruled
Ihenacho’s motion to dismiss, counsel for OIPT, Richard Talda, testified on behalf of his
client that the attorney fees sought by it were reasonable and necessary. According to
Talda, he has previously provided expert testimony on the subject of reasonable attorney
fees. He stated that he defended OIPT in the underlying lawsuit brought by Ihenacho.
Talda testified that he also utilized associates and paralegals in his office to “handle the case,
not only professionally and ably, but economically” for OIPT, since associates and
4
paralegals are less expensive on an hourly basis.
{¶ 5} Talda stated that the causes of action in Ihenacho’s pro se complaint
included breach of contract, conversion, “some averments to discrimination,” unjust
enrichment and intentional infliction of emotional distress, and that Ihenacho initially sought
$551,000.00 in damages. Talda stated that Ihenacho later amended his complaint and added
a claim for fraud, and his claim for damages then exceeded a million dollars. Talda
indicated that OIPT filed a counterclaim against Ihenacho. Talda stated that efforts at
settlement were unsuccessful. He testified that Ihenchaco filed approximately 20 motions
against OIPT, and that “we have an obligation to zealously represent clients and so we have
to respond to them.”
{¶ 6} Talda testified that his firm pursued collection on behalf of OIPT by means
of a “creditor’s bill action,” in an effort to reach the proceeds of a personal injury judgment
in favor of Ihenchaco in federal court. Talda stated that collection efforts remain ongoing.
{¶ 7} Talda testified that he is the “billing attorney” for OIPT, and that as such, in
the regular course of business, he reviewed every OIPT bill for accuracy and reasonableness,
made discretionary adjustments, and finalized the bills. Talda identified the final bills that
were sent to OIPT in connection with Ihenacho. Talda stated that his rate is $305.00 an
hour, the rate for his associates is $190.00 an hour, and the rate for paralegals is $125.00 to
$145.00 an hour. Talda testified that those rates are typical for a firm of the size and
reputation of his firm. Talda stated that the charges covered the defense of Ihenacho’s
claims, collection efforts, and appellate litigation. Talda further identified a summary of the
billing history prepared by the firm billing office, which showed how much was billed, how
5
much was received from OIPT, and adjustments to the bills made by Talda. He also
identified a summary itemizing the costs and fees of the creditor’s bill action and the appeal
incurred to date. Talda stated that OIPT has paid all of its bills in full. OIPT requested an
award of attorney fees in the amount of $62,691.60.
{¶ 8} At the conclusion of Talda’s testimony, the trial court gave Ihencaho the
opportunity to cross-examine Talda, and the following exchange occurred:
MR. IHENACHO: Your Honor, I really don’t have any questions to
ask him. But if you would want me to speak my mind - -
THE COURT: Hang on a second - -
MR. IHENACHO: - - freely, I would be glad to do that.
THE COURT: - - and I’ll explain to you. Okay. He is a witness.
Okay. And you have the right to cross-examine him on the motion that’s
pending. If you have questions, you’re free to ask those.
If you don’t have any questions or even if you do have questions,
when you’re finished, when Ms. Vandegrift is finished with her presentation
of her case, you’ll be permitted to call witnesses, including yourself, if you
choose to do so, relating to the issues involving this motion. That’s all we’re
hearing today. Okay? So you can ask him questions if you choose to.
MR. IHENACHO: Your Honor, I have - - I don’t know what he’s
talking about, so, there’s - - since I don’t know what he’s talking about I’m
not going to ask him questions. I can’t ask questions what I don’t know
about.
6
Thank you, your Honor.
{¶ 9} OIPT called no further witnesses and moved to admit its exhibits. When
asked if he had any objection to the exhibits, Ihenacho responded, “ * * * I’m not an attorney
and * * * I don’t know what the contents (sic) and what it is all about.” The court
responded, “If you remember though that we have talked several times in Court before that
because you chose to represent yourself, you are held to the same standard as if you were an
attorney. * * * [Y]ou’re not excused simply because you’re not an attorney. So if you have
any objection to those exhibits then you’re required to make that objection now.” Ihenacho
then repeated his argument that the hearing should not proceed during the pendency of his
direct appeal. The exhibits were admitted, the court noting Ihenacho’s objection to the
court hearing the motion for attorney fees and costs had been previously overruled.
{¶ 10} When asked if he had any witnesses to present, Ihenacho responded, “I was
not informed to present witness, * * *.” In response to questions from the court, Ihenacho
indicated that he received the notice regarding the hearing, and that he was aware that the
hearing had been continued twice. The court advised Ihenacho, “because you chose to
represent yourself, you’re required to comply with all of the rules. That includes either
subpoenaing or bringing witnesses.” Ihenacho then asked for “just one favor,” and the
following exchange occurred:
THE COURT: I’m not in the position to give anybody favors.
That’s not my role, sir.
MR. IHENACHO: Okay. Your Honor, please, what I’m trying to say
is that, I am from Africa from Nigeria.
7
THE COURT: I understand that, sir.
MR. IHENACHO: * * * - - why I came here - -
***
MR. IHENACHO: - - is because of the system of America that I read
while I was working with communication (phonetic), and I begin to save my
(indiscernable) money to come and see that country that was best for human
dignity and human rights. * * * that’s what brought me here. And today - -
***
- - I’m seeing another side - -
THE COURT: Mr. Ihenacho, I - -
MR. IHENACHO: - - of that - -
THE COURT: - - disagree with you completely, sir. We have - -
absolutely have rules of procedure that apply to everyone. You are not being
denied any right whatsoever, sir. What you’re really asking, is you’re asking
for me to help you and I can’t do that, because that’s not my role, just as I
can’t help Mr. Talda and Ms. Vandegrift.
You were notified of this hearing and given an opportunity to present
your witnesses, but because you’ve chosen to represent yourself, you’re
responsible for preparing and knowing what those rules are.
I’m going to ask you one more time, do you have any witnesses that
you would like to present at this hearing?
MR. IHENACHO: I have witness that is not here right now, Your
8
Honor.
THE COURT: Did you subpoena that witness?
MR. IHEACHO: I was not informed.
THE COURT: Mr. Ihenacho, as I said, I don’t know who was to
inform you, * * * you are required to inform yourself. I am not required to
inform you to bring witnesses as I wasn’t * * *required, or even permitted to
tell Ms. Vandegrift to bring witnesses.
{¶ 11} The court then asked Ihenacho if he intended to testify on his own behalf,
and Ihenacho asked the court to “please give me an opportunity to let me get an attorney,
because this is beyond me now.” Ihenacho further stated, “I’m begging you in the name of
God, if you can allow me to present - -to look for an attorney, because I cannot answer
anything here because I don’t understand it. * * * .” After again noting that the hearing had
been twice continued at Ihenacho’s request, the court further noted that Ihenacho had “ample
opportunity to bring your witnesses in and to have an attorney,” and the court overruled
Ihenacho’s request and gave him an opportunity to testify, which Ihenacho declined.
{¶ 12} In its decision awarding fees, the trial court noted that OIPT’s
counterclaim was based upon an Educational Installment Contract (“EIC”), pursuant to
which Ihenacho agreed to “pay us the fees for attorneys that are not our salaried employees
plus court costs to collect any unpaid balance you owe us, to the extent permitted by law.”
The court further concluded that much of the service rendered by counsel for OIPT was
related to defending the allegations in Ihenacho’s complaint, which are not compensable
pursuant to the terms of the EIC. The court noted that OIPT obtained judgment against
9
Ihenacho on its contract claim, in the amount of $15,026.00, by means of default judgment,
and that “the legal services for such action are rather limited in nature.”
{¶ 13} The court found that the hourly rates charged as recited by Talda for his
services, as well as those of his associates and paralegals, were reasonable for the Dayton
area. The court noted that it was “virtually impossible to determine from the billing
statement submitted by counsel the amount of expenses, particularly those incurred for
research services through Lexis, which are attributable to Plaintiff’s original Complaint and
those matters that relate to Defendant’s counterclaim.” Accordingly, the court determined
that it “can make no award relating to requested expenses, as Defendant has failed to prove
by a preponderance of the evidence that those expenses are related to the collection of funds
under the contract between the parties.”
{¶ 14} Based upon the evidence presented, the court concluded that an award of
attorney fees and costs in the amount of “$9,757.60 is reasonable and appropriate under the
circumstances,” based upon the “time associated with the collection of the debt, as permitted
by the contract.” The court noted that it excluded any requested fees “for matters associated
with the defense of the Complaint filed by [Ihenacho] and other matters ancillary thereto, as
well as any appeal relating to the Complaint.” Finally, the court specifically itemized the
charges related solely to the collection of funds owed to OIPT, in a three-page
comprehensive list, as established by the unrefuted evidence, which totaled $9,757.60.
{¶ 15} We initially note, as the trial court repeatedly indicated to Ihenacho:
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.
10
See, e.g., Kilroy v. B.H. Lakeshore Co. (1996), 11 Ohio App.3d 357, 363, 676
N.E.2d 171. As the Eighth District Court of Appeals aptly noted in Kilroy,
a pro se litigant “cannot expect or demand special treatment from the judge,
who is to sit as an impartial arbiter.” Id. Yocum v. Means, 2d Dist. Darke
No. 1576, 2002-Ohio-3803, ¶ 20.
{¶ 16} We will address Ihenacho’s assertions in the order best suited for analysis.
Ihenacho asserts that the trial court wrongly denied his request for a continuance, and as we
previously noted:
{¶ 17} “An appellate court must not reverse denial of a continuance unless an
abuse of discretion has been demonstrated. * * *.” State v. Parks, 69 Ohio App.3d 150,
154, 590 N.E.2d 300 (2d Dist. 1990). As the Supreme Court of Ohio determined:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
11
{¶ 18} As this court noted in Parks:
In evaluating a motion for continuance, a court should note, inter alia:
the length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the request for a
continuance; and other relevant factors, depending on the unique facts of each
case. * * * . Parks, Id.{¶ 19} Ihenacho sought a third continuance, at the conclusion of OIPT’s evidence,
to obtain counsel, and he argues herein that he has a “right to be represented by an attorney.”
However, the Ohio Supreme Court has determined that “‘[t]there is no generalized right of
counsel in civil litigation.’” Holt v. Ken’s Auto Sales, Inc., 2d Dist. Greene No. 2009 CA
17,2009-Ohio-6692, ¶ 35, quoting State ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110, 515
N.E.2d 928 (1987). The Supreme Court further noted that:
“* * * [C]ertain distinctions can be made between the rights of civil
litigants and those of criminal defendants. A criminal defendant’s right to
counsel arises out of the sixth amendment, and includes the right to appointed
counsel when necessary. * * * A civil litigant’s right to retain counsel is
rooted in fifth amendment notions of due process; the right does not require
the government to provide lawyers for litigants in civil matters. * * * A
criminal defendant faced with a potential loss of his personal liberty has much
12
more at stake than a civil litigant asserting or contesting a claim for damages,
and for this reason the law affords greater protection to the criminal
defendant’s rights.” Id. (Citations omitted.)
Intermediate appellate courts, including our own, have followed these
principles, and have found no constitutional right to representation in cases
involving individual civil litigants. * * * . Cincinnati Ins. Co. v. Schaub, 2d
Dist. Montgomery No. 22419, 2008-Ohio-4729, ¶ 19-20.
Ihenacho had no right to appointed counsel, and he failed to exercise his right to retain
counsel but instead chose to proceed pro se, and the trial court did not abuse its discretion in
refusing to continue the hearing for a third time, correctly concluding that Ihenacho had
ample time to seek representation.
{¶ 20} To the extent that Ihenacho suggests that he was denied a fair trial, due to
alleged “bias or prejudice,” the record makes clear that he requested “a favor,” or
preferential treatment, from the trial court and that the court correctly held him to the same
standard as other litigants. Further, the court thoroughly considered his motion to dismiss,
he had the opportunity to cross-examine Talda, object to OIPT’s exhibits, present witnesses
and provide testimony, and Ihenacho has accordingly failed to demonstrate prejudice.
Finally, we note that Ihenacho did not file an affidavit alleging bias or prejudice as required
by R.C. 2701.03.
{¶ 21} Regarding Ihenacho’s assertion that OIPT’s claims for fees were “irregular,
erroneous and bogus in nature,” we note that “Ohio follows the ‘American Rule,’ under
which a prevailing party may not generally recover attorney fees. * * * Attorney fees may be
13
awarded, however, if (1) a statute creates a duty, (2) an enforceable contract provision
provides for an award of attorney fees, or (3) the losing party acted in bad faith.” Hagans v.
Habitat Condominium Owners Assn., 166 Ohio App.3d 508, 2006-Ohio-1970, 851 N.E.2d
544 (2d Dist.), citing Nottingdale Homeowner’s Assn., Inc. V. Darby, 33 Ohio St.3d 32, 514
N.E.2d 702 (1987). A trial court must consider the following in awarding attorney fees:
“‘(1) the time and labor involved in maintaining the litigation, (2) the novelty, complexity,
and difficulty of the questions involved, (3) the professional skill required to perform the
necessary services, (4) the experience, reputation, and ability of the attorneys, and (5) the
miscellaneous expenses of the litigation.’ * * *. ” Leal v. Holtvogt, 123 Ohio App.3d 51,
73, 702 N.E.2d 1246 (2d Dist. 1998). Also, “there must be evidence presented regarding
the reasonableness of attorney fees before the trial court can make such an award.” Id.{¶ 22} The trial court correctly awarded fees based upon the contract between the
parties. It further noted that OIPT obtained the underlying judgment against Ihenacho by
means of default, which required limited services. The court determined that OIPT failed to
establish that its fees for Lexis research were compensable pursuant to the contract. Finally,
the court found that the rates charged for the services of Talda, his associates and paralegals
were reasonable for the area. The court specifically enumerated the attorney fees and costs
it found compensable pursuant to the contract, as established by the unrefuted evidence.
{¶ 23} Finally, regarding Ihenacho’s assertion that the trial court erred in rendering
judgment against him when OIPT “refused” to present certain deposition testimony, we
agree with OIPT that Ihenacho took no steps to present the deposition testimony himself
(and he does not assert that the trial court denied him the opportunity to present it), and the
14
issue is accordingly waived.
{¶ 24} There being no merit to Ihenacho’s assertions, the judgment of the trial court
is affirmed.
..........
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Charles Ihenacho
Richard A. Talda
Sasha Alexa M. VanDeGrift
Hon. Mary Katherine Huffman