[Cite as LexisNexis v. Murrell, 2019-Ohio-3293.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 LEXISNEXIS                                        :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 28293
                                                   :
 v.                                                :   Trial Court Case No. 2017-CV-4310
                                                   :
 PATRICIA MURRELL, et al.                          :   (Civil Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                              OPINION

                            Rendered on the 16th day of August, 2019.

                                              ...........

MICHAEL W. SANDNER, Atty. Reg. No. 0064107, 2700 Kettering Tower, Dayton, Ohio
45423
      Attorney for Plaintiff-Appellee

PATRICIA MURRELL, Atty. Reg. No. PHV-20631-2019, 572 Riley Road, New Windsor,
New York, 12553
     Attorney for Defendant-Appellant

                                             .............

HALL, J.
                                                                                       -2-




      {¶ 1} Patricia Murrell d/b/a Law Office of Murrell & Associates and the Law Office

of Murrell & Associates, LLC (“the appellants”) appeal from the trial court’s entry of

summary judgment against them on appellee LexisNexis’ complaint alleging breach of

contract for non-payment under a subscription agreement.

      {¶ 2} The appellants advance four assignments of error. First, they contend the

trial court erred in entering summary judgment where LexisNexis failed to meet its prima

facie burden under Civ.R. 56 of demonstrating the absence of a genuine issue of material

fact. Second, they claim the trial court erred in entering summary judgment where

LexisNexis failed to present evidence establishing that it had performed its own

obligations under the subscription agreement. They also argue that the trial court

overlooked a genuine issue of material fact regarding LexisNexis’ performance. Third,

they assert that the trial court erred in failing to view the evidence and reasonable

inferences related to conflicting “forum-selection clauses” in a light most favorable to

them. Fourth, they argue that the trial court erred in failing to consider evidence that

LexisNexis incorrectly had named “Patricia Murrell” as a defendant.

      {¶ 3} The record reflects that attorney Patricia Murrell signed a subscription

agreement with LexisNexis for online legal-research services in January 2016. Murrell’s

monthly payments went into arrears around August 2016 and her account remained

delinquent in March 2017, when LexisNexis “interrupted” her service due to non-payment.

Thereafter, LexisNexis commenced the present lawsuit in September 2017 with a

complaint alleging breach of contract. LexisNexis identified the defendant as “Patricia

Murrell dba Law Office of Murrell & Associates.” In her answer, which included affirmative
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defenses, Murrell argued, among many other things, that LexisNexis itself had failed to

perform under the contract by repeatedly and continually failing to provide her with

accessible online legal-research services. More specifically, Murrell alleged that

beginning in January 2016 and continuing through the summer of 2017, LexisNexis failed

to make its services available to her and failed to provide her with access to the data

bases to which she had subscribed. LexisNexis later amended its complaint to add as a

defendant the “Law Office of Murrell & Associates, LLC.”

       {¶ 4} On November 2, 2018, LexisNexis moved for summary judgment, relying

primarily on an affidavit from Amy Rountree, one of its customer-account representatives.

LexisNexis argued that the parties had entered into a contract, it had provided service as

required under the contract, and the appellants had failed to pay for the service as agreed.

The appellants opposed summary judgment, arguing inter alia that LexisNexis had failed

to perform its contractual obligations by not making its subscription services available or

accessible to them.

       {¶ 5} On January 17, 2019, the trial court sustained LexisNexis’s motion and

entered summary judgment against the appellants on LexisNexis’s complaint. (Doc. #

71.) In support of its decision, the trial court reasoned in part as follows:

              In the case at bar, the Court finds that the parties entered into a valid

       written contract (Exhibits A, B and C to Ms. Rountree’s Affidavit.) [footnote

       omitted]. Defendants breached the Contract by failing to pay for the online

       legal services in accordance with the Price Schedule. Defendants’

       opposition to the motion for summary judgment on Plaintiff’s breach of

       contract is confusing and sets forth propositions that are conclusory. For
                                                                                   -4-


example, Defendants’ claim that Ms. Rountree’s [affidavit] is insufficient to

support summary judgment is inaccurate. The Rountree Affidavit properly

authenticates the Contract, sets forth Defendants’ failure to pay, and

establishes the amount due and owing. In response to this evidence, Murrell

makes her own conclusory statements that she wasn’t given the terms of

the Contract, which was in fact signed by her as the owner of the Law Office

of Murrell and Associates, and that Plaintiff committed some sort of fraud in

its zealous pursuit of her as [a] client for online services.

       * * * Defendants’ assertion that the Contract was not provided to them

is without merit. Furthermore, Defendants’ general contention that there

was some sort of fraud in the inducement on Plaintiff’s part has no facts to

support the claim. It is not lost on this Court that Murrell is an attorney. She

executed a document and is responsible to know the terms of the document

she signed.

       Likewise, Defendants’ breach has been established. While

Defendants argue that Plaintiff stopped providing services, Ms. Rountree’s

Affidavit establishes, and this point is not disputed by Defendants, that

services were terminated only after Defendant’s account became

delinquent.

       Finally, Plaintiff has established its damages. There is no dispute that

Plaintiff provided online legal services to Defendant for a period of time at a

monthly rate of $0.00 in anticipation of future payments under the Contract.

Further, services for which Defendant was responsible under the Price
                                                                                         -5-


       Schedule to pay a fee were rendered and not paid for.

                 Based on the foregoing, the Court finds that no genuine issue of

       material fact exists for trial, and Plaintiff is entitled to the amount of the

       delinquent payments and accelerated amount under the contract for a total

       of $5,378.31 under the minimum payment schedule set forth in the Contract,

       plus interest at the rate of 15% per annum pursuant to the terms of the

       Contract.

(Id. at 4-5.)1

       {¶ 6} In their first two assignments of error, the appellants challenge the merits of

the trial court’s summary judgment decision. In their first assignment of error, they

challenge the sufficiency of Rountree’s affidavit to make a prima facie showing of breach

of contract. In their second assignment of error, they contend that LexisNexis failed to

establish its performance and that the trial court overlooked a genuine issue of material

fact as to whether LexisNexis had performed its own obligations under the contract by its

repeated and ongoing failure to provide the appelants with access to the online research

services to which they had subscribed.

       {¶ 7} In response to the first two assignments of error, LexisNexis asserts that

Rountree’s affidavit was sufficient to satisfy its initial burden. With regard to its own

performance under the contract, LexisNexis states: “Again, nowhere in anything

submitted by the Appellants do the Appellants deny having received services from

Appellee. Thus, there is no dispute that Appellee has performed under the contract.”



1 In addition to the amount due under the contract, the trial court awarded LexisNexis
attorney fees of $6,510.50 and court costs of $331.50.
                                                                                        -6-


(Appellee’s brief at 7.) Later in its brief, LexisNexis argues: “As the party moving for

summary judgment, Appellee correctly relied on the Affidavit of Amy Rountree to

demonstrate that Appellee rendered services. Nowhere in anything submitted by the

Appellants, including her [sic] brief, do the Appellants deny having received services from

Appellee or refute this fact.” (Id. at 9.)

       {¶ 8} Contrary to the foregoing assertions, one of the appellants’ primary

arguments below was that LexisNexis had not satisfied its contractual obligation to

provide them with online legal-research services. In opposition to summary judgment,

Murrell provided affidavits in which she averred:

       14. The Defendant(s) have established, through its defenses and

       affirmative defenses set forth in its Answer and various subsequent

       responsive documents proffered thereunder that the Plaintiff materially

       breached the terms of the Subscription Agreement by repeatedly failing to

       make its online services available for use by Defendant. Specifically,

       Plaintiff failed to comply with provision 6.2 of the Subscription Agreement,

       which required Plaintiff to provide the Defendant with access to and use of

       LexisNexis Advance, including NY Enhanced – New York Core Offerings,

       together with NY Briefs, Pleadings and Motions (together, the “Subscription

       Services”).

       15. The Defendant(s) have provided this Court with the names of various

       Plaintiff’s employees * * * all of whom failed to make the Subscription

       Services available for the Defendant’s use, despite a contractual promise

       to do so * * * including, inter alia, Douglas Aller, Stacey Bales, Missy
                                                                                        -7-

      Cottongim, Mykhan I. Pascual and Jho-Anne Simbillo.

      16. Defendant(s) repeatedly notified Plaintiff from January 2016 through

      and including June 2017 that the Defendant had experienced significant

      difficulty accessing and/or using the Subscription Services, which the

      Plaintiff continued to knowingly and materially misrepresent would be made

      available * * *.

      17. The Plaintiff failed to perform its obligations under the Subscription

      Agreement, which consequently denied the Defendant from gaining access

      to and use of the Subscription Services, thereby estopping the Defendant(s)

      from performing its obligations thereunder.

(Emphasis added.) (Patricia Murrell affidavits in support of Memorandum Contra Plaintiff’s

Motion for Summary Judgment, Doc. # 59 and 60.)

      {¶ 9} The essence of the appellants’ argument, which was not directly

acknowledged or addressed by LexisNexis below, was that they stopped paying their

monthly bill because they experienced significant and repeated difficulty accessing or

using the online legal-research services from January 2016 through June 2017 and

LexisNexis never corrected the problem. The elements of a breach-of-contract action

include the existence of a contract, performance by the plaintiff, breach by the defendant,

and damages. Carpenter v. Long, 196 Ohio App.3d 376, 2011-Ohio-5414, 963 N.E.2d

857, ¶ 220 (2d Dist.). Construing Murrell’s affidavits in a light most favorable to her, we

believe they were sufficient to create a genuine issue of material fact as to whether

LexisNexis performed its own obligations under the contract.

      {¶ 10} Although the above-referenced portions of Murrell’s affidavits were not
                                                                                           -8-


specifically addressed, the trial court’s summary judgment ruling indicated that Murrell

had made “conclusory” arguments. (Doc. # 71 at 4.) Likewise, LexisNexis criticized

Murrell below for “simply disagreeing and filing self-serving affidavits denying her liability

to the Plaintiff.” (Doc. # 66 at 8.) In our view, however, Murrell’s affidavits were not

inappropriately self-serving or conclusory.

       {¶ 11} In Smith v. CBert Properties, LLC, 2d Dist. Montgomery No. 28058, 2019-

Ohio-12, we recently rejected an argument that a party’s own affidavit opposing summary

judgment was too self-serving and conclusory to establish a genuine issue of material

fact. We reasoned that a party’s own affidavit is appropriate provided that it does more

than present “conclusory assumptions” and that it sets forth matters within the affiant’s

personal knowledge. Id. at ¶ 11. In our view Murrell’s affidavit satisfied these

requirements. In the portions of the affidavit quoted above, she averred that she spoke

with a number of LexisNexis employees over a 17-month period about her repeated

inability to access, or significant difficulty accessing, legal-research databases that

LexisNexis was contractually obligated to make available. Murrell specifically identified

the time frame at issue, the employees with whom she spoke, and the databases that

LexisNexis failed to make available. These averments, construed most favorably to the

appellants, were sufficient to rebut LexisNexis’ claim that it had performed its obligations

under the contract. For summary-judgment purposes nothing more was required.

Murrell’s affidavit alone was sufficient to create a genuine issue of material fact on

LexisNexis’ breach-of-contract claim solely with regard to the issue of whether LexisNexis

performed under the contract. Accordingly, we sustain the second assignment of error

insofar as it raises a question of whether or to what extent LexisNexis performed under
                                                                                            -9-


the contract.

       {¶ 12} Our analysis and resolution of the second assignment of error, finding only

that the appellants raised genuine issues of material fact regarding LexisNexis’

performance, leads us to overrule the first assignment of error, which addresses whether

LexisNexis met its initial burden under Civ.R. 56. If we had concluded that LexisNexis

failed to meet its initial burden, then logically we should grant the first assignment of error

and find the second moot. Our holding above, however, does render moot the fourth

assignment of error, which challenges the trial court’s entry of summary judgment against

both Murrell “dba Law Office of Murrell & Associates” and the “Law Office of Murrell &

Associates, LLC.” The appellants contend the parties agree that the only proper

defendant in this case is the limited-liability company, not Murrell personally in a “dba”

capacity. Because we are reversing the trial court’s entry of summary judgment, however,

a final judgment does not now exist. On remand, Murrell is free to pursue her argument

about being removed from the case in a “dba” capacity. The first assignment of error is

overruled and the fourth assignment of error is overruled as moot.

       {¶ 13} In their third assignment of error, the appellants contend the trial court failed

to acknowledge or consider the existence of “conflicting forum-selection clauses” in the

parties’ contract. In light of this unresolved conflict, they ask us either to dismiss

LexisNexis’ complaint with prejudice or to “remand the case for a jury trial in New York.”

(Appellants’ brief at 24.)

       {¶ 14} Upon review, we find the appellants’ argument to be unpersuasive. The

parties’ contract contains one forum-selection clause, requiring actions for non-payment

to be brought in Montgomery County, Ohio. What the appellants cite are allegedly
                                                                                         -10-


conflicting choice-of-law provisions regarding the application of Ohio law or New York

law. Even assuming, arguendo, that a choice-of-law conflict exists, the appellants have

not shown how it makes any difference here. The elements of a breach-of-contract action

are the same in Ohio and New York. See Canzona v. Atanasio, 118 A.D.3d 837, 838, 989

N.Y.S.2d 44, 47 (2014) (noting that under New York law the elements of a breach-of-

contract action are the existence of a contract, the plaintiff’s performance, the defendant’s

breach, and damages). In any event, the allegedly conflicting choice-of-law provisions

provide no grounds for dismissing LexisNexis’ complaint with prejudice or “remanding”

the case to New York. The third assignment of error is overruled.

       {¶ 15} Having sustained the appellants’ second assignment of error finding there

are genuine issues of material fact regarding whether LexisNexis performed under the

agreement, we reverse the trial court’s entry of summary judgment against them and

remand the cause for further proceedings.

                                      .............



DONOVAN, J. and TUCKER, J., concur.


Copies sent to:

Michael W. Sandner
Patricia Murrell
Hon. Barbara P. Gorman
