[Cite as LexisNexis v. Moreau-Davila, 2017-Ohio-6998.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

LEXISNEXIS, A DIVISION OF RELX, 

INC. 

Plaintiff-Appellee

v. 

RACHEL MOREAU-DAVILA, dba 

MOREAU-DAVILA & GUENTHER 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 27319 

Trial Court Case No. 2016-CV-2185 

(Civil Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 28th day of July, 2017. 

. . . . . . . . . . . 

ANDREW C. STORAR, Atty. Reg. No. 0018802, MICHAEL W. SANDNER, Atty. Reg. No. 

0064107, MICHELLE T. SUNDGAARD, Atty. Reg. No. 0096006, 2700 Kettering Tower, 

Dayton, Ohio 45423 

 Attorneys for Plaintiff-Appellee 

 

RACHEL MOREAU-DAVILA, 5710 West Interstate 10, San Antonio, Texas 78201 

 Defendant-Appellant-Pro Se 

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

 

WELBAUM, J. 
-2- 

{¶ 1} Defendant-appellant, Rachel Moreau-Davila, dba Moreau-Davila & 

Guenther (“Moreau-Davila”), appeals from the decision of the Montgomery County Court 

of Common Pleas overruling her motion to dismiss the complaint of plaintiff-appellee, 

LexisNexis, a Division of RELX, Inc. (“LexisNexis”), for lack of personal jurisdiction. 

Moreau-Davila also appeals from the trial court’s decision granting summary judgment in 

favor of LexisNexis. For the reasons outlined below, the judgment of the trial court will 

be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On April 27, 2016, LexisNexis, a corporation with a principal place of 

business in Montgomery County, Ohio, filed a breach of contract action against Rachel 

Moreau-Davila, an attorney from San Antonio, Texas, who at all relevant times operated 

as a law office named Moreau-Davila & Guenther. The contract at issue is a Subscription 

Agreement entered into by the parties on January 29, 2015, whereby Moreau-Davila 

agreed to pay LexisNexis for its online research services. 

{¶ 3} In its complaint, LexisNexis alleged that although it substantially performed 

its obligations under the Subscription Agreement, Moreau-Davila breached her 

obligations by failing to make payments as provided in the agreement. As a result of the 

breach, LexisNexis alleged that Moreau-Davila owed $10,571.28 in unpaid monthly 

installment payments plus interest and resulting attorney fees. 

{¶ 4} Moreau-Davila initially responded to the complaint by filing a Civ.R. 12(B)(2) 

motion to dismiss on grounds that the trial court lacked personal jurisdiction over her. 
-3- 

The trial court, however, overruled the motion, finding it could exercise personal 

jurisdiction under Ohio’s long-arm statute since the breach of contract claim arose out of 

a business transaction that took place in Ohio. The trial court also found that MoreauDavila purposefully established minimum contacts in Ohio by entering into a contract with 

an Ohio business. The trial court further found that it was permitted to exercise personal 

jurisdiction pursuant to a forum selection clause in the Subscription Agreement, which 

provided the following: 

Claims and controversies involving the following will not be subject to 

arbitration and the parties agree to exclusive jurisdiction in federal or state 

courts located in Montgomery County, Ohio: * * * (c) non-payment. 

{¶ 5} After the trial court overruled Moreau-Davila’s motion to dismiss, on July 22, 

2016, LexisNexis filed a motion for summary judgment that included various evidentiary 

materials and affidavits supporting its breach of contract claim and its request for 

damages. Following the submission of LexisNexis’s motion, the trial court issued a 

briefing order that advised Moreau-Davila her opposing memorandum was due on August 

22, 2016. 

{¶ 6} Prior to that deadline, on August 19, 2016, Moreau-Davila filed a motion for 

an extension of time to respond to LexisNexis’ motion for summary judgment on grounds 

that she had been preparing for three criminal jury trials. The trial court granted MoreauDavila’s request, and extended the filing deadline to September 12, 2016. 

{¶ 7} Approximately one week after that deadline had passed, on September 21, 

2016, Moreau-Davila filed multiple notices advising the court that she had issued 

discovery requests, interrogatories, and requests for admissions to LexisNexis. The 
-4- 

following day, Moreau-Davila filed her memorandum opposing LexisNexis’ motion for 

summary judgment. Moreau-Davila’s memorandum included no supporting evidentiary 

materials and generally alleged that summary judgment was improper because a genuine 

issue of material fact existed as to her alleged indebtedness. Specifically, MoreauDavila claimed that she was not responsible for the alleged debt because a representative 

of LexisNexis had advised her that she could cancel the Subscription Agreement upon 

the dissolution of her law firm. 

{¶ 8} After considering the submitted evidence, the trial court granted summary 

judgment in favor of LexisNexis and ordered Moreau-Davila to pay LexisNexis $10,571.28 

in unpaid installment payments, plus 15% interest, and $2,227 in attorney fees. MoreauDavila now appeals from that decision and from the trial court’s decision denying her 

motion to dismiss for lack of personal jurisdiction, raising two assignments of error for 

review. 

First Assignment of Error 

{¶ 9} Moreau-Davila’s First Assignment of Error is as follows: 

THE COURT BELOW ERRED IN OVERRULING DEFENDANTAPPELLANT’S MOTION FOR LACK OF PERSONAL JURISDICTION. 

{¶ 10} Under her First Assignment of Error, Moreau-Davila contends that the trial 

court erred in overruling her Civ.R. 12(B)(2) motion to dismiss LexisNexis’s breach of 

contract action for want of personal jurisdiction. In support of her argument, MoreauDavila claims that the trial court lacked personal jurisdiction under Ohio’s long-arm statute 

because she did not transact business in Ohio as contemplated by the statute. Moreau-
-5- 

Davila also claims that she did not have sufficient minimum contacts with Ohio for the trial 

court to exercise personal jurisdiction within the bounds of due process. 

{¶ 11} As a preliminary matter, we note that “[p]ersonal jurisdiction is a question of 

law that we review de novo.” (Citation omitted.) Enquip Technologies Group, Inc. v. 

Tycon Technoglass, S.r.l., 2d Dist. Greene No. 2010-CA-23, 2010-Ohio-6100, ¶ 10. “De 

novo review requires an ‘independent review of the trial court’s decision without any 

deference to the trial court’s determination.’ ” Jackson v. Internatl. Fiber, 169 Ohio 

App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.), quoting State ex rel. 

AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88, ¶ 27 (3d Dist.). 

{¶ 12} “ ‘It is rudimentary that in order for a court to enter a valid, personal 

judgment, the court must have personal jurisdiction over the defendant.’ ” Reed Elsevier, 

Inc. v. Feder, 2015-Ohio-5013, 50 N.E.3d 1067, ¶ 8 (2d Dist.), quoting Maryhew v. Yova, 

11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). “ ‘Determining whether an Ohio trial 

court has personal jurisdiction over a nonresident defendant involves a two-step analysis: 

(1) whether the long-arm statute and the applicable rule of civil procedure confer 

jurisdiction and, if so, (2) whether the exercise of jurisdiction would deprive the 

nonresident defendant of the right to due process of law under the Fourteenth 

Amendment to the United States Constitution.’ ” Enquip Technologies Group at ¶ 10, 

quoting Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 

930 N.E.2d 784, ¶ 28. 

{¶ 13} Under Ohio’s long-arm statute, R.C. 2307.382(A), an Ohio court is permitted 

to exercise personal jurisdiction over a nonresident defendant for causes of action “arising 

from” certain enumerated circumstances, including the defendant “[t]ransacting any 
-6- 

business in this state[.]” R.C. 2307.382(A)(1). The applicable rule of civil procedure, 

Civ.R. 4.3(A)(1), mirrors the long-arm statute, as it allows for service of process upon 

such a nonresident defendant. Kauffman Racing Equip. at ¶ 35-36; Civ.R. 4.3(A)(1). 

{¶ 14} “[T]he exercise of personal jurisdiction over a nonresident defendant 

comports with due process if the foreign defendant has ‘minimum contacts’ with the forum 

state such that to require the defendant to defend its interests in the forum state ‘does not 

offend traditional notions of fair play and substantial justice.’ ” EnQuip Technologies 

Group, Inc. v. Tycon Technoglass, S.R.L., 2d Dist. Greene Nos. 2009 CA 42, 2009 CA 

47, 2010-Ohio-28, ¶ 73, quoting International Shoe Co. v. Washington, 326 U.S. 310, 

316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). (Other citations omitted.) 

{¶ 15} Nevertheless, “ ‘the requirement that a court have personal jurisdiction over 

a party is a waivable right and there are a variety of legal arrangements whereby litigants 

may consent to the personal jurisdiction of a particular court system.’ ” Reed Elsevier, 

2015-Ohio-5013, 50 N.E.3d 1067 at ¶ 10, quoting Kennecorp Mtge. Brokers, Inc. v. 

Country Club Convalescent Hosp., Inc., 66 Ohio St.3d 173, 175, 610 N.E.2d 987 (1993), 

citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 

528 (1985). 

{¶ 16} One way litigants may consent to personal jurisdiction of a particular court 

system is through a valid forum selection clause. Burger King at fn. 14; Preferred 

Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, 860 N.E.2d 

741, ¶ 6. More specifically, “[a]n exclusive forum-selection clause means that the 

identified court is the only court with jurisdiction—the parties must commence any action 

in the identified court.” (Emphasis sic.) EnQuip Technologies Group v. Tycon 
-7- 

Technoglass, 2012-Ohio-6181, 986 N.E.2d 469, ¶ 14 (2d Dist.); Accord Dayton 

Outpatient Ctr., Inc. v. OMRI of Pensacola, Inc., 2014-Ohio-4105, 19 N.E.3d 608, ¶ 14 

(2d Dist.). 

{¶ 17} The Supreme Court of Ohio has employed the following three-part inquiry 

for determining the validity of a forum-selection clause: “(1) Are both parties to the contract 

commercial entities? (2) Is there evidence of fraud or overreaching? (3) Would 

enforcement of the clause be unreasonable and unjust?” Preferred Capital at ¶ 7, citing 

Kennecorp at syllabus. Therefore, “ ‘[a]bsent evidence of fraud or overreaching, a forum 

selection clause contained in a commercial contract between business entities is valid 

and enforceable, unless it can be clearly shown that enforcement of the clause would be 

unreasonable and unjust.’ ” Reed Elsevier at ¶ 10, quoting Kennecorp at syllabus. 

{¶ 18} We note that a forum selection clause is commercial in nature even if the 

parties are sole proprietorships or small businesses similar to Moreau-Davila’s law office. 

See Preferred Capital at ¶ 8. In other words, so long as “both parties are for-profit, 

commercial entities, the relative size or sophistication of the parties is not a material 

factor.” Id. 

{¶ 19} In arguing that the trial court erred in exercising personal jurisdiction over 

her, Moreau-Davila fails to account for the fact that the Subscription Agreement she 

entered into with LexisNexis contained the following exclusive forum selection clause: 

Claims and controversies involving the following will not be subject to 

arbitration and the parties agree to exclusive jurisdiction in federal or state 

courts located in Montgomery County, Ohio: * * * (c) non-payment.

(Emphasis added.) “Plaintiff’s Exhibit A” attached to Affidavit of Robert J. Berry (July 22, 
-8- 

2016), Montgomery County Court of Common Pleas Case No. 2016-CV-02185, Docket 

No. 20. 

{¶ 20} We reviewed the exact same forum selection clause language in Reed 

Elsevier, 2015-Ohio-5013, 50 N.E.3d 1067, which involved a similar online subscription 

agreement between LexisNexis and an attorney “doing business as” the law office for 

which the subscription was entered into. We held that the contract was entered into by 

two commercial entities and that pursuant to the forum selection clause language, 

personal jurisdiction was waived for claims of non-payment, and that the trial court in 

Montgomery County had personal jurisdiction over any such claims. Id. at ¶ 11-14. 

{¶ 21} Furthermore, after a thorough review of the record, we find no evidence of 

fraud or overreaching on the part of LexisNexis, and Moreau-Davila makes no such claim 

with regards to the Subscription Agreement at issue. The record indicates that the 

agreement was freely negotiated and entered into between the parties and that the forum 

selection clause was clearly and legibly printed on the contract. 

{¶ 22} Moreau-Davila also makes no argument that the forum selection clause is 

unfair or unreasonable, as she does not even address the forum selection clause in her 

appeal. We find that the forum selection clause is reasonable and fair given that 

LexisNexis is located in Montgomery, County Ohio, and because the contract gave 

Moreau-Davila adequate notice that litigation for non-payment would occur there. 

“[P]arties to contracts are presumed to have read and understood them and that a 

signatory is bound by a contract that he or she willingly signed.” (Citations omitted.) 

Preferred Capital, 112 Ohio St.3d 429, 2007-Ohio-257, 860 N.E.2d 741 at ¶ 10. 

Accordingly, it is not unfair or unjust to uphold the forum selection terms that Moreau-
-9- 

Davila agreed to. 

{¶ 23} For the foregoing reasons we find the forum selection clause at issue is 

valid. Therefore, Moreau-Davila waived the requirement for the trial court to have 

personal jurisdiction, as she consented to its jurisdiction via the forum selection clause. 

In turn, we need not address whether Moreau-Davila “transacted business” per Ohio’s 

long-arm statute or whether her actions constituted “minimum contacts” with Ohio. 

Accordingly, we reject those arguments under Moreau-Davila’s First Assignment of Error 

and find that she must live up to her end of the bargain in which she consented to personal 

jurisdiction in the courts of Montgomery County, Ohio. See Kennecorp, 66 Ohio St.3d at 

175-176, 610 N.E.2d 987. 

{¶ 24} Moreau-Davila’s First Assignment of Error is overruled. 

Second Assignment of Error 

{¶ 25} Moreau-Davila’s Second Assignment of Error is as follows: 

THE COURT BELOW ABUSED ITS DISCRETION AND/OR COMMITTED 

SUBSTANTIAL ERROR WHEN THERE IS GENUINE ISSUE AS TO 

MATERIAL FACT THAT REMAINS TO BE LITIGATED AND WHEN IT 

DELIBERATELY DISREGARDED DEFENDANT-APPELLANT’S 

PENDING DISCOVERY WHEN GRANTING PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT. 

{¶ 26} Under her Second Assignment of Error, Moreau-Davila claims that the trial 

court erred in granting summary judgment in favor of LexisNexis. In support of her claim, 

Moreau-Davila contends that a genuine issue of material fact exists regarding her alleged 
-10-

indebtedness to LexisNexis and the validity of the Subscription Agreement’s acceleration 

clause. Moreau-Davila also claims that it was error for the trial court to enter summary 

judgment before LexisNexis responded to her discovery requests, as she claims ongoing 

discovery precludes the entry of summary judgment. Moreau-Davila further claims that 

her law firm was not properly joined as a necessary party to the action. 

1. Summary Judgment Standard of Review 

{¶ 27} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no 

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a 

matter of law, and (3) reasonable minds, after construing the evidence most strongly in 

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor 

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). 

{¶ 28} The moving party carries the initial burden of affirmatively demonstrating 

that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio 

St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point 

to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in 

rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 

264 (1996). 

{¶ 29} Once the moving party satisfies its burden, the nonmoving party may not 

rest upon the mere allegations or denials of the party’s pleadings. Id. at 293; Civ.R. 

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits 

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is 

a genuine issue of material fact for trial. Id. Throughout, the evidence must be 
-11-

construed in favor of the nonmoving party. Id. 

{¶ 30} We review the trial court’s ruling on a motion for summary judgment de 

novo. (Citation omitted.) Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-

Ohio-2767, ¶ 42. As noted earlier, de novo review means that we examine the evidence 

without deference to the trial court’s decision, and use the same standard that the trial 

court should have used to determine whether, as a matter of law, no genuine issues exist 

for trial. (Citations omitted.) Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-

Ohio-4297, ¶ 8. 

2. No Genuine Issue of Material Fact Exists For Trial 

{¶ 31} As previously discussed, Moreau-Davila claims that the trial court erred in 

granting summary judgment in favor of LexisNexis on its breach of contract action. To 

establish breach of contract, LexisNexis had the burden of proving: (1) the existence of a 

contract between the parties; (2) performance by LexisNexis; (3) breach by MoreauDavila; and (4) damage or loss to LexisNexis. Discover Bank v. Swartz, 2016-Ohio2751, 51 N.E.3d 694, ¶ 15 (2d Dist.), citing Doner v. Snapp, 98 Ohio App.3d 597, 600, 

649 N.E.2d 42 (2d Dist.1994). 

{¶ 32} Moreau-Davila does not dispute that she entered into the Subscription 

Agreement at issue, but claims summary judgment in favor of LexisNexis on its breach of 

contract claim was improper because a genuine issue of material fact existed as to her 

alleged indebtedness to LexisNexis and to the validity of the Subscription Agreement’s 

acceleration clause. We disagree. 

{¶ 33} In support of its motion for summary judgment, LexisNexis submitted the 
-12-

following documentation: (1) a copy of the Subscription Agreement and addendums 

signed by Moreau-Davila on January 29, 2015; (2) the Terms and Conditions of Use and 

Price Schedule for LexisNexis’s services that were incorporated by reference in the 

Subscription Agreement; and (3) LexisNexis’s Account Statement and Invoice Summary 

for Moreau-Davila showing an outstanding balance of $389.63 for unpaid monthly 

installment payments and $10,181.65 for accelerated monthly installment payments. 

{¶ 34} In addition, LexisNexis submitted an affidavit signed by its U.S. Collections 

Manager, Robert Berry. In the affidavit, Berry averred to the authenticity of the 

documentation provided in support of LexisNexis’s motion for summary judgment and to 

the total amount of Moreau-Davila’s debt to LexisNexis, $10,571.28. LexisNexis also 

submitted an affidavit signed by its attorney, averring that the company had incurred 

attorney fees and court costs in the amount of $2,227 for this matter. 

{¶ 35} In reviewing the Subscription Agreement provided by LexisNexis, we find 

that paragraphs LA 3.3 and LPA 3.1 of the agreement clearly and unambiguously indicate 

that LexisNexis would provide Moreau-Davila with an initial complementary period of 

online research services until March 27, 2015. On that date, Moreau-Davila was then 

required to make increasing monthly installment payments to LexisNexis until January 

28, 2018. 

{¶ 36} Paragraph 7.6 of the Subscription Agreement contains an acceleration 

clause providing that: “if any charge not the subject of legitimate dispute should remain 

unpaid for more than 75 days after becoming due, then [LexisNexis] reserves the right to 

require each remaining unpaid Monthly Installment for the Committed Term to become 

immediately due and payable to [LexisNexis].” 
-13-

{¶ 37} The Account Statement provided by LexisNexis indicates that MoreauDavila stopped making the agreed-upon monthly installment payments on May 31, 2015, 

and that as of February 9, 2016, she owed $389.63 for the missed payments. 

{¶ 38} The Invoice Summary provided by LexisNexis indicates that MoreauDavila’s remaining minimum monthly installment payments owed between July 1, 2015 

and January 27, 2018, were accelerated on February 2, 2016, pursuant to the terms of 

the Subscription Agreement. The accelerated amount in the Invoice Summary is 

$10,181.65, making Moreau-Davila’s total debt $10,571.28. 

{¶ 39} Section III of LexisNexis’ Price Schedule indicates that amounts which have 

not been paid within 30 days after the invoice date are “subject to a late payment charge 

at a rate equal to 15% per annum (or if less, the maximum rate permitted under applicable 

law).” The Price Schedule also indicates that if Moreau-Davila fails to pay charges when 

due, she “will be liable for all costs of collection incurred by [LexisNexis], including, without 

limitation, collection agency fees, reasonable attorney’s fees, and court costs.” Again, 

as previously noted, LexisNexis’s attorney submitted an affidavit averring that the 

company had expended $2,227 in attorney fees resulting from Moreau-Davila’s 

nonpayment. 

{¶ 40} In response to all the documentation and information submitted by 

LexisNexis, Moreau-Davila claims summary judgment is inappropriate because a 

genuine issue of material fact exists regarding her indebtedness, which she claims is 

overstated and false. In making this argument, Moreau-Davila did not allege or provide 

any evidentiary materials showing that she had paid LexisNexis or that LexisNexis had 

failed to perform its obligations under the Subscription Agreement. Instead, Moreau-
-14-

Davila maintained that she was not responsible for the alleged debt because, at some 

undisclosed point in time, she had canceled the Subscription Agreement upon the 

dissolution of her law office, Moreau-Davila & Guenther. 

{¶ 41} We note that there is a provision in the addendum of the Subscription 

Agreement providing that: 

Subscriber may terminate this Agreement in the event of its complete 

dissolution by providing [LexisNexis] written notice of its dissolution 

including a copy of the Certification of Dissolution filed in its state o[f] 

incorporation or, for sole proprietors, other evidence reasonably satisfactory 

to [LexisNexis] and which supports that Subscriber is no longer operating a 

law practice. 

{¶ 42} Although this provision permits termination of the Subscription Agreement, 

Moreau-Davila has failed to state when, or provide any evidence showing that she 

actually ceased operating as Moreau-Davila & Guenther. Nor did Moreau-Davila provide 

any evidentiary materials demonstrating that she notified LexisNexis in writing that she 

had ceased operating her law firm as required by the terms of the Subscription 

Agreement. Moreau-Davila also did not provide any details or evidence showing when 

and how she allegedly went about cancelling the Subscription Agreement. Accordingly, 

there is nothing in the record, not even a sworn affidavit, supporting Moreau-Davila’s 

assertion that she was not responsible for the debt because she had canceled the 

Subscription Agreement with LexisNexis. 

{¶ 43} In opposing summary judgment, Moreau-Davila also challenges the validity 

of the acceleration clause in the Subscription Agreement; yet, she provides no basis for 
-15-

why the clause should not be enforced. “ ‘By agreeing to an acceleration clause, the 

parties in this case have avoided the operation of the general rule that nonpayment on an 

installment loan does not constitute a breach of the entire contract. In a contract with an 

acceleration clause, a breach constitutes a breach of the entire contract.’ ” U.S. Bank, 

N.A. v. Gullotta, 5th Dist. Stark No. 2010CA00181, 2011-Ohio-2235, ¶ 21, quoting U.S. 

Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399, 2008-Ohio-6268, 899 N.E.2d 987, ¶ 31. 

{¶ 44} A review of the Subscription Agreement establishes that the acceleration 

clause contained therein unambiguously provides that LexisNexis reserves the right to 

require all remaining unpaid monthly installment payments for the full term of the contract 

to become immediately due and payable if any charge remains unpaid for more than 75 

days after becoming due. In opposing LexisNexis’ motion for summary judgment, 

Moreau-Davila did not refute or provide any evidence contradicting LexisNexis’s Account 

Statement and Invoice Summary showing that she was in arrears between May 2015 and 

February 2016, which is well over 75 days. Accordingly, there is no basis on which to 

find that the acceleration clause does not apply to Moreau-Davila. 

{¶ 45} Based on the foregoing, it is clear that in opposing LexisNexis’ motion for 

summary judgment, Moreau-Davila has done nothing more than rest upon the allegations 

and denials contained in her pleadings. This does not satisfy a non-moving party’s 

reciprocal burden under Civ.R. 56(E). Dresher, 75 Ohio St.3d at 292-293, 662 N.E.2d 

264. As a further matter, Moreau-Davila’s opposing memorandum was also untimely 

filed; therefore, it was within the trial court’s discretion whether to accept and consider the 

arguments in her memorandum when rendering its decision. See ERB Poultry, Inc. v. 

CEME, L.L.C., 2014-Ohio-4504, 20 N.E.3d 1228, ¶ 29 (2d Dist.); Mueller v. Handee Mart, 
-16-

8th Dist. Cuyahoga No. 65713, 1994 WL 317644, *3 (June 30, 1994), citing Powell v. 

Consolidated Rail Corp., 31 Ohio App.3d 219, 510 N.E.2d 818 (12th Dist.1986). 

Although we cannot determine from the trial court’s decision and entry whether it 

accepted and considered Moreau-Davila’s memorandum, we nevertheless find that under 

the circumstances of this case, disregarding the untimely memorandum would not have 

been an abuse of its discretion. 

{¶ 46} Because Moreau-Davila failed to provide any evidentiary materials refuting 

LexisNexis’s evidence showing that she: (1) entered into the Subscription Agreement at 

issue; (2) failed to make monthly installment payments as required by the Subscription 

Agreement; and (3) owed LexisNexis a total of $10,571.28, plus attorney fees and interest 

as a result of her contractual breach, we find that Moreau-Davila failed her reciprocal 

burden to demonstrate that a genuine issue of material fact existed with regards to the 

breach of contract claim that was fully established and supported by LexisNexis’s motion 

for summary judgment and accompanying evidentiary materials. 

3. Pending Discovery Does Not Preclude Summary Judgment 

{¶ 47} Moreau-Davila also argues that because she was awaiting discovery 

responses from LexisNexis, the trial court erred by prematurely entering a summary 

judgment ruling in this case. We once again disagree. 

{¶ 48} “Pending discovery does not prevent the trial court from granting summary 

judgment, absent an express request for a specific delay to answer the summary 

judgment motion.” Matheny v. AT&T Information Systems, Inc., 8th Dist. Cuyahoga No. 

58018, 1991 WL 12958, *1 (Feb. 7, 1991), citing Stegawski v. Cleveland Anesthesia 
-17-

Group, Inc., 37 Ohio App.3d 78, 86-87, 523 N.E.2d 902 (8th Dist.1987); Nagy v. Sunny 

Acres Nursing Home, 8th Dist. Cuyahoga No. 55267, 1988 WL 113568, *1 (Sept. 29, 

1988). 

{¶ 49} This court has consistently held that: “Parties who find themselves in a 

position of having to respond to a motion for summary judgment before adequate 

discovery has been completed must seek their remedy through Civ. R. 56(F)[.]” Lillback 

v. Metro. Life Ins. Co., 94 Ohio App.3d 100, 103, 640 N.E.2d 250 (2d Dist.1994). Accord 

Cornett v. State Farm Mut. Ins. Co., 2d Dist. Montgomery No. 19103, 2002 WL 1483219, 

*2 (July 12, 2002); Security Nat. Bank and Trust Co. v. Jones, 2d Dist. Clark No. 2000-

CA-59, 2001 WL 754776, *4 (July 6, 2001); Clark County Solid Waste Mgt. Dist. v. Danis 

Clarkco Landfill Co., 109 Ohio App.3d 19, 36, 671 N.E.2d 1034 (2d Dist.1996). 

{¶ 50} Civ.R. 56(F) provides that: 

Should it appear from the affidavits of a party opposing the motion for 

summary judgment that the party cannot for sufficient reasons stated 

present by affidavit facts essential to justify the party’s opposition, the court 

may refuse the application for judgment or may order a continuance to 

permit affidavits to be obtained or discovery to be had or may make such 

other order as is just. 

{¶ 51} Under this rule, a party is afforded “ ‘a mechanism whereby it can seek 

deferral of action on a motion for summary judgment so that it may obtain affidavits 

opposing the motion or conduct discovery relevant to it.’ ” BAC Home Loans Servicing, 

L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, 958 N.E.2d 194, ¶ 18 (12th 

Dist.), quoting Gates Mills Invest. Co. v. Pepper Pike, 59 Ohio App.2d 155, 168-169, 392 
-18-

N.E.2d 1316 (8th Dist.1978); Internatl. Brotherhood of Electrical Workers, Loc. Union No. 

575 v. Settle-Muter Elec., L.T.D., 12th Dist. Fayette No. CA2012-02-003, 2012-Ohio4524, ¶ 37. 

{¶ 52} “A motion for a continuance to conduct discovery under Civ.R. 56(F) ‘ “must 

be supported by a proper affidavit.” ’ ” BAC Home Loans at ¶ 18, quoting Silver v. Jewish 

Home of Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314, 943 N.E.2d 577, ¶ 20 (12th 

Dist.), quoting St. Joseph’s Hosp. v. Hoyt, 4th Dist. Washington No. 04CA20, 2005-Ohio480, ¶ 24. “General averments requesting a continuance for the purpose of discovery 

are insufficient, as ‘ “the party seeking the Civ.R. 56(F) continuance must state a factual 

basis and reasons why the party cannot present sufficient documentary evidence without 

a continuance.” ’ ” Id. 

{¶ 53} “A party who fails to seek relief under Civ.R. 56(F) does not preserve his 

right to challenge the adequacy of discovery upon appeal.” Clark County Solid Waste 

Mgt. Dist., 109 Ohio App.3d at 36, 671 N.E.2d 1034, citing R & R Plastics, Inc. v. F.E. 

Myers Co., 92 Ohio App.3d 789, 798, 637 N.E.2d 332 (6th Dist.1993) and Stegawski, 37 

Ohio App.3d 78, 523 N.E.2d 902 at paragraph four of the syllabus; Cornett, 2d Dist. 

Montgomery No. 19103, 2002 WL 1483219 at *2.

{¶ 54} In this case, the original filing deadline for Moreau-Davila’s memorandum 

opposing summary judgment was August 22, 2016. Three days before that deadline, 

Moreau-Davila filed a motion requesting an extension of time to submit her memorandum 

on grounds that she had been preparing for three criminal jury trials. The trial court 

granted the motion and changed the filing deadline to September 12, 2016. Thereafter, 

Moreau-Davila did not issue discovery requests to LexisNexis until September 21, 2016, 
-19-

nine days after her opposing memorandum was due. Then, without requesting any 

further extension of time, Moreau-Davila filed her opposing memorandum ten days late 

on September 22, 2016. Although Moreau-Davila argued in her memorandum that 

summary judgment was premature because discovery was pending, she never requested 

another extension of time nor filed a motion and affidavit under Civ.R. 56(F). 

{¶ 55} If Moreau-Davila believed that she needed a continuance to develop the 

evidentiary materials she needed to respond to LexisNexis’s motion for summary 

judgment, she should have applied for a continuance under Civ.R. 56(F). Because 

Moreau-Davila did not seek relief under Civ.R. 56(F), she cannot not use the lack of 

discovery responses as a basis for reversing the trial court’s summary judgment ruling on 

appeal. Clark County Solid Waste Mgt. Dist. at 36; Cornett at *2. This is especially true 

in this case, as Moreau-Davila did not issue her discovery requests until after the filing 

deadline for her opposing memorandum had passed. Therefore, she cannot rely on her 

own delay in issuing discovery requests as a basis for postponing the trial court’s 

summary judgment ruling. 

4. Moreau-Davila’s Law Firm is Not a Separate Entity that Needed to be Joined in 

the Breach of Contract Action 

{¶ 56} In opposing summary judgment, Moreau-Davila further claims that because 

her law firm, Moreau-Davila & Guenther, was listed as the “subscriber” in the Subscription 

Agreement, the firm should have been joined as a necessary party to the breach of 

contract action. However, not only did Moreau-Davila fail to ever move to have her firm 

joined as a party to the action, but the record indicates that Moreau-Davila admitted that 

she was simply doing business under the name “Moreau-Davila & Guenther,” as she 
-20-

consistently referred to herself in the pleadings as “Rachel Moreau-Davila d/b/a MoreauDavila & Guenther.” 

{¶ 57} As we noted in Auer v. Paliath, 2d Dist. Montgomery No. 27004, 2016-Ohio5353: 

“ ‘The designation “d/b/a” means “doing business as” but is merely 

descriptive of the person or corporation who does business under some 

other name. Doing business under another name does not create an entity 

distinct from the person operating the business. The individual who does 

business as a sole proprietor under one or several names remains one 

person, personally liable for all his obligations.’ ” Poss v. Morris, 11th Dist. 

Ashtabula No. 94-A-0042, 1996 WL 200614, *3 (Mar. 29, 1996), quoting 

Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1387 (D.Neb.1977). 

Auer at ¶ 25. 

{¶ 58} Accordingly, “[w]hen “d.b.a.” (doing business as) is used, there is no legal 

distinction between the individual and the business entity since it is merely a descriptive 

of the person who does business under some other name.” Herschell v. Rudolph, 11th 

Dist. Lake No. 2001-L-069, 2002 WL 549980, *6 (Apr. 12, 2002), citing Poss at 7-8. 

Therefore, LexisNexis properly brought the breach of contract action against “Rachel 

Moreau-Davila, d/b/a Moreau-Davila & Guenther,” as the law firm is not a distinct entity 

from Moreau-Davila herself. 

{¶ 59} For all the foregoing reasons, Moreau Davila’s Second Assignment of Error 

challenging the trial court’s decision granting summary judgment in favor of LexisNexis is 

overruled. 
-21-

Conclusion 

{¶ 60} Having overruled both assignments of error raised by Moreau-Davila, the 

judgment of the trial court is affirmed. 

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

HALL, P.J. and TUCKER, J., concur. 

Copies mailed to: 

Andrew C. Storar 

Michael W. Sandner 

Michelle T. Sundgaard 

Rachel Moreau-Davila 

Hon. Dennis J. Adkins