[Cite as Dragonfly Academy v. Ohio Dept. of Edn., 2017-Ohio-7897.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Dragonfly Academy,                                 :

                Plaintiff-Appellant,               :                    No. 16AP-552
                                                                     (C.P.C. No. 15CV-4244)
v.                                                 :
                                                               (ACCELERATED CALENDAR)
Ohio Department of Education,                      :

                Defendant-Appellee.                :




                                        D E C I S I O N

                                 Rendered on September 28, 2017


                On brief: Strip, Hoppers, Leithart, McGrath & Terlecky Co.,
                LPA, and Nelson E. Genshaft, for appellant. Argued:
                Nelson E. Genshaft.

                On brief: Michael DeWine, Attorney General, Jeffrey A.
                Knight, and Marissa J. Palumbo, for appellee. Argued:
                Marissa J. Palumbo.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Dragonfly Academy ("Dragonfly"), plaintiff-appellant, appeals from the
judgment of the Franklin County Court of Common Pleas, in which the court granted the
motion for summary judgment filed by the Ohio Department of Education ("ODE"),
defendant-appellee.
        {¶ 2} ODE administers the Autism Scholarship Program ("the program"),
pursuant to R.C. 3310.41. The program provides scholarships to parents of autistic
children. The parents may enter into a contract with a special education program other
than the one operated by the child's school district, another public entity, or a registered
No. 16AP-552                                                                              2

private provider, and allocate their scholarship monies to the provider. Dragonfly was a
registered private provider under the program until December 15, 2014, and received
payments from ODE for providing education to autistic children under the program.
       {¶ 3} We will initially set forth only the general facts and expound on the more
specific details during our analysis of Dragonfly's assignment of error. The present matter
involves Dragonfly's claim that it was entitled to payments from ODE for services
rendered to two students, M.S. and D.B., for two school years, 2011-2012 and 2014-2015.
The services for which Dragonfly seeks reimbursement are occupational therapy ("OT")
and speech and language therapy ("SLT").
       {¶ 4} On May 18, 2015, Dragonfly filed a complaint for collection of a past due
account against ODE, claiming ODE had failed to compensate Dragonfly for providing
education to M.S. and D.B. during the 2011-2012 and 2014-2015 school years. On
April 25, 2016, ODE filed a motion for summary judgment. In general, ODE claimed that
Dragonfly failed to submit sufficient evidence to demonstrate it had provided
compensable services to M.S. and D.B. for the relevant school years. In response,
Dragonfly submitted evidentiary material that it claimed supported its entitlement to
payment.
       {¶ 5} On June 30, 2016, the trial court granted ODE's motion for summary
judgment. The trial court found that with regard to school years 2011-2012 and 2014-
2015, Dragonfly failed to present evidence of the specific services provided to M.S. and
D.B. that would entitle it to payment, determining that Dragonfly failed to provide any
documentation and/or provided poor documentation. Dragonfly appeals the judgment of
the trial court, asserting the following assignment of error:
               The Trial Court was in error when it granted summary
               judgment in a case where plaintiff demonstrated that it
               rendered services for which payment should be made. At a
               minimum, plaintiff in the case below demonstrated that it
               rendered services, and the supporting evidence it provided to
               the Trial Court was a basis on which a jury could find genuine
               issues of material fact subject to dispute.

       {¶ 6} In its sole assignment of error, Dragonfly argues the trial court erred when it
granted summary judgment to ODE. Summary judgment is appropriate when the moving
party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving
No. 16AP-552                                                                            3

party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion when viewing the evidence most strongly in favor of the non-moving
party, and that conclusion is adverse to the non-moving party. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d
158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for
summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court
conducts an independent review, without deference to the trial court's determination.
Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.);
White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
       {¶ 7} When seeking summary judgment on the grounds that the non-moving
party cannot prove its case, the moving party bears the initial burden of informing the
trial court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.
       {¶ 8} "To establish a prima facie case for money owed on an account, a plaintiff
must demonstrate the existence of an account, including that the account is in the name
of the party charged, and it must also establish (1) a beginning balance of zero, or a sum
that can qualify as an account stated, or some other provable sum; (2) listed items, or an
item, dated and identifiable by number or otherwise, representing charges, or debits, and
credits; and (3) summarization by means of a running or developing balance, or an
arrangement of beginning balance and items that permits the calculation of the amount
claimed to be due." Carasalina, LLC v. Smith Phillips & Assocs., 10th Dist. No. 13AP-
No. 16AP-552                                                                             4

1027, 2014-Ohio-2423, ¶ 20 quoting Great Seneca Fin. v. Felty, 170 Ohio App.3d 737,
2006-Ohio-6618, ¶ 6 (1st Dist.).
       {¶ 9} Here, Dragonfly first addresses the school year 2011-2012 and contends the
trial court erred when it ignored evidence that substantiates Dragonfly's claims for
payment from ODE. Much of Dragonfly's argument and the trial court's decision rely on
an affidavit and five attached exhibits submitted by Miranda Abrams, the executive
director of Dragonfly at the time of its closure in December 2014. The exhibits, along with
what Abrams averred each demonstrated, are as follows: (1) exhibit A-1, an OT
consultation form from Deandra L. Demes of Kids' Choice, LLC, dated December 6, 2011,
showing OT services were provided at Dragonfly, including an assessment of M.S.,
(2) exhibit A-2, a letter from Demes listing the dates on which she provided OT services at
Dragonfly during the 2011-2012 school year, (3) exhibit A-3, a June 5, 2012 letter from
Demes to Lisa Huckins of ODE, in which Demes expresses non-specific disagreement
with an article in a local newspaper that indicates Dragonfly's students were not receiving
OT services by a licensed therapist, (4) exhibit A-4, notes from SLT therapist Kathy
Deering from various times during the 2011-2012 school year, showing that direct SLT
services were provided to M.S. and D.B.; and (5) exhibit A-5, notes from Deering
regarding speech therapy provided to M.S. and D.B. Abrams also averred in her affidavit
that, even if some of the services were consultative, that does not mean Dragonfly cannot
be compensated for them, and she was not aware of any provision in the program that
precludes such. She also averred that OT and SLT services were only a minor portion of
the entire invoice for education services to these two students for the year, and Dragonfly
provided other services.
       {¶ 10} In granting summary judgment, the trial court found, in pertinent part, that
Dragonfly failed to present evidence of the specific services provided to M.S. and D.B. in
2011-2012, and the OT and SLT services allegedly provided are poorly, if at all,
documented. The court found the only evidence before the court establishing the alleged
services were exhibits A-1, A-4, and A-5, attached to Abrams's affidavit. The court found
exhibit A-1 minimally referenced alleged OT services provided to M.S. but did not include
a date for those services; exhibit A-4 referenced SLT services provided to both M.S. and
D.B., but the services only accounted for the end of the school year in May 2012 and
No. 16AP-552                                                                               5

included OT services for 2010; and exhibit A-5 was almost entirely devoid of dates and the
content was practically illegible. The court also found that Dragonfly failed to provide
sufficient evidence of any additional services to M.S. and D.B. beyond OT and SLT to
establish a payable account.
       {¶ 11} In its brief, Dragonfly asserts it submitted reports from specialists in OT and
SLT services showing direct services were provided to both M.S. and D.B. during 2011-
2012. Dragonfly points to the reports from Demes, which show OT services were provided
to M.S. and D.B. during 2011-2012, and the notes from Deering, which demonstrated that
SLT services were provided directly to M.S. and D.B. during 2011-2012. Dragonfly also
cites to the affidavit of Abrams, in which she avers compensable services were rendered to
M.S. and D.B. Dragonfly admits that the evidence lacked specificity but asserts that such
deficiencies do not warrant a finding for summary judgment. Dragonfly further argues
there is nothing in R.C. 3310.41(B) and Ohio Adm.Code 3301-103-07(A) that mandate
only direct services, as opposed to consultative services, are eligible for compensation
under the program, and the requirement that only direct services are compensable is only
a policy adopted by ODE. Dragonfly also argues it demonstrated that OT and SLT services
were only a small portion of the range of services provided to the two students, yet ODE
took the position that it would not pay for any of the services provided for the students for
the entire year.
       {¶ 12} We have reviewed the evidence relied on by Dragonfly and agree, in great
part, with the trial court that it is insufficient to demonstrate a genuine issue of material
fact that Dragonfly was entitled to payment for the alleged services in question. However,
as noted below, we do find Dragonfly presented evidence to raise a genuine issue of
material fact in one respect. We will address each of Dragonfly's arguments in turn. With
regard to the report from Demes, exhibit A-1, initially, it should be noted that the "OT
Consultation" form is dated December 6, 2011; thus, nearly one-half of the school year
had already elapsed. Importantly, the report does not demonstrate that any direct services
were provided. Furthermore, the report does not even reference D.B. The report merely
indicates observations of M.S. and plans/suggestions for services for M.S. Therefore, this
evidence was insufficient.
No. 16AP-552                                                                                6

       {¶ 13} With regard to exhibit A-2, this exhibit is a short, typed, undated
memorandum from Demes that simply indicates a list of six dates of "service" for OT
during the 2011-2012 school year, starting December 6, 2011. The memorandum does not
give any indication to which students Demes provided the services or what services she
provided. Therefore, this evidence was insufficient.
       {¶ 14} With regard to Deering's notes, exhibit A-4, we initially note that, according
to other evidence submitted, Deering did not begin providing SLT services until March 21,
2012, the final quarter of the school year. Nevertheless, this exhibit outlines services to
numerous students and indicates that the services were direct unless otherwise noted. The
exhibit specifically delineates the recipient of service, date of service, and duration of
service, and includes direct services for M.S. and D.B. The exhibit also indicates whether
the service was individual or group. Although we agree that this exhibit also contains a lot
of material irrelevant to SLT services, and contains no evidence of SLT services performed
prior to the dates detailed in Deering's notes, we find exhibit A-4 contains sufficient detail
to at least raise a genuine issue of material fact as to whether compensable SLT services
were provided by Deering on the dates she noted. Therefore, we find the trial court erred
when it granted summary judgment in this respect.
       {¶ 15} With regard to Dragonfly's argument that there is nothing in R.C.
3310.41(B) and Ohio Adm.Code 3301-103 that mandate only direct services, as opposed to
consultative services, are eligible for compensation under the program, and the
requirement that only direct services are compensable is only a policy adopted by ODE,
we find this without merit. R.C. 3310.41(B) provides, in pertinent part, that tuition under
the program is to be paid for the implementation of the child's individualized education
program ("IEP"), and "[t]he services provided under the scholarship shall include an
educational component or services designed to assist the child to benefit from the child's
education." Ohio Adm.Code 3301-103-02(B) provides that the purpose of the
scholarship is to allow the child to receive the services prescribed in the child's IEP.
Similarly, Ohio Adm.Code 3301-103-07(B) provides that the scholarship monies "shall"
be "used only as payment for the child * * * to receive special education and related
services that implement the child's current IEP."
No. 16AP-552                                                                              7

       {¶ 16} Thus, our reading of the statute and rules is consistent with the
interpretation by ODE; that is, the scholarship monies can be used only to pay for direct
educational services to implement the IEP and not evaluations or consultations. Although
R.C. 3310.41(B) does indicate that monies can be spent on "other services" agreed to by
the provider and parent associated with educating the child, there is no evidence here of
any agreement to other services. Dragonfly presents nothing to support its contrary
interpretation of the statute and rules, and it is inapposite to the language in those
provisions. Therefore, this argument is without merit.
       {¶ 17} Dragonfly also argues it demonstrated that OT and SLT services were only a
small portion of the range of services provided to the two students, yet ODE took the
position that it would not pay for any of the services provided for the students for the
entire year. However, as the trial court found, Dragonfly failed to submit any evidence of
such, and Abrams's unsupported averments are insufficient to raise a genuine issue of
material fact. Therefore, this argument is without merit.
       {¶ 18} Dragonfly next addresses the school year 2014-2015 and contends the trial
court erred when it failed to find genuine issues of material fact that require the weighing
of evidence and assessing of credibility. Dragonfly first complains that ODE acted
arbitrarily by refusing to pay any of the scholarship funds because Dragonfly submitted its
December 17, 2014 invoice for services performed October to December 2014 in paper
form rather than electronically, despite Dragonfly's explanation that it was forced to file
its claims by paper for the 2014-2015 school year because it was locked out of the
electronic filing system, as explained by Abrams in her affidavit. Dragonfly also argues
that ODE wrongly withheld payment based on its claim it invoiced ODE for intervention
specialist Brittany Berkey's services in October and November 2014, despite the fact that
she ceased employment on October 2, 2014. Dragonfly claims it presented evidence
demonstrating Berkey was actually employed until November 11, 2014. Dragonfly points
to Abrams's affidavit, to which she attached a screen shot of Berkey's personal
information form showing her end date of November 11, 2014.
       {¶ 19} In response, ODE argues that, regardless of Berkey's employment status,
the invoice failed to indicate what services were allegedly provided or by whom they were
provided, which precluded ODE from verifying what services were provided or whether
No. 16AP-552                                                                                8

they were provided in accordance with the program. ODE challenged Abrams's deposition
and affidavit testimony in which Abrams offered the names of several individuals who
may have provided the services reflected in the December 17, 2014 invoice. ODE points
out that Abrams's testimony and averments are not corroborated by any outside evidence,
and that Abrams's claim that Berkey could have provided the services could not be
accurate, given Berkey's indication that she ended her employment on October 2, 2014.
With regard to the paper invoice, ODE claims that, regardless of Dragonfly's unsupported
claim, it was locked out of the online filing system and the paper invoice was deficient as it
failed to indicate what services were provided and the names of the providers.
       {¶ 20} On these issues, the trial court found: (1) ODE presented evidence that
Dragonfly submitted invoices for October, November, and December 2014 for services
provided by Berkey, but Berkey did not work for Dragonfly after October 2, 2014, and
(2) Berkey's invoice contains no description of the services provided and is devoid of
substance.
       {¶ 21} We agree with the trial court that the December 17, 2014 invoice was
inadequate to demonstrate Dragonfly was entitled to payment from ODE. The invoice
contains neither a description of which providers provided the services nor a description
of the services. Although Abrams acknowledged in her deposition that the online filing
system required the service provided and the name of the service provider be included,
she had no compelling reason as to why she failed to submit this information with the
paper invoice. We also agree with ODE that Abrams's testimony regarding the possible
provider names does not rescue the invoice from inadequacy. Abrams testified in her
deposition that she "believed" the invoice was for education and intervention services and
she gave the names of three possible providers that she thought could have been included
in the invoiced services, one of which was Berkey. Her uncertain testimony, when coupled
with no other evidence, was insufficient. In addition, even if Berkey worked until
November 11, 2014, there were numerous October and November 2014 services included
in the invoice, and it is not clear whether those were for Berkey's services or some other
provider. In sum, the December 17, 2014 invoice was inadequate to prove ODE owed
Dragonfly for payments under the program. For these reasons, Dragonfly's assignment of
error is overruled in part and sustained in part.
No. 16AP-552                                                                           9

      {¶ 22} Accordingly, Dragonfly's single assignment of error is overruled in part and
sustained in part, and the judgment of the Franklin County Court of Common Pleas is
affirmed in part and reversed in part. The matter is remanded to that court to determine
whether Deering provided compensable SLT services on the dates noted in exhibit A-4.
                                       Judgment affirmed in part and reversed in part;
                                                                     cause remanded.

                     SADLER and LUPER SCHUSTER, JJ., concur.

                             ____________________
