Hoffman v. Atlas Title Solutions, Ltd.

[Cite as Hoffman v. Atlas Title Solutions, Ltd., 

2023-Ohio-1706

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




CONOR HOFFMAN,

        PLAINTIFF-APPELLANT,                                        CASE NO. 14-23-04

        v.

ATLAS TITLE SOLUTIONS, LTD,                                         OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Union County Common Pleas Court
                           Trial Court No. 2021-CV-0123

                       Judgment Reversed and Cause Remanded

                               Date of Decision: May 22, 2023




APPEARANCES:

        Micaela M. Taylor for Appellant

        David L. Van Slyke for Appellee
Case No. 14-23-04


ZIMMERMAN, J.

       {¶1} Plaintiff-appellant,   Conor     Hoffman    (“Hoffman”),     appeals   the

November 17, 2022 judgment of the Union County Court of Common Pleas

granting summary judgment in favor of defendant-appellee, Atlas Title Solutions,

Ltd. (“Atlas Title”), as to Hoffman’s breach-of-contract and breach-of-fiduciary-

duty claims. For the reasons that follow, we reverse.

       {¶2} This case presents a novel issue requiring the analysis of who bears the

responsibility for the escrow fraud that took place in this case. Even though we

ultimately conclude that the trial court improperly granted summary judgment in

favor of Atlas Title as to Hoffman’s breach-of-contract and breach-of-fiduciary-

duty claims because (at a minimum) genuine issues of material fact remain as to

whether an implied agreement for escrow services exists, we acknowledge that more

percolating issues exist in this case. Importantly, we agree that triable issues remain

as to whether (at the very least) Atlas Title implemented “proper” security measures

to prevent Hoffman’s personal information from being “phished” to precipitate the

“spoofed” email or whether Hoffman should have recognized that the email was

“spoofed.”

       {¶3} By way of background, this case stems from an April 22, 2021 real-

estate closing during which Hoffman and Macie McMahon (“McMahon”),




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Case No. 14-23-04


Hoffman’s fiancé, were defrauded of $289,722.19.1                            Hoffman contracted to

purchase real-estate located at 322 Moss Court in Marysville, Ohio for $290,000.00

(cash) from Richard D. and Stephanie Little (the “Littles”). See Rassi v. Buckeye

Title Agency, Inc., 2d Dist. Montgomery No. 28985, 

2021-Ohio-2129, ¶ 3

(explaining that “[t]his was a cash transaction, meaning, of course, that a bank was

not involved”). For purposes of the transaction, Tamie Gordon (“Gordon”), a real-

estate agent with Big Hill Realty Corporation, dba Better Homes and Gardens Big

Hill (“Better Homes and Gardens”) represented the Littles, while Jasmine

McKenzie (“McKenzie”), a real-estate agent with Consultants Realty, LLC, dba

Keller Williams Consultants Realty (“Keller Williams”) represented Hoffman and

McMahon.

         {¶4} Nevertheless, Hoffman and the Littles engaged Atlas Title as the escrow

agent and title agent for the sale after Gordon suggested its services.2 As a result,

Melonie McCaulley (“McCaulley”) of Atlas Title served as the escrow agent and

closing official for the transaction. Importantly, Hoffman and the Littles shared the

cost of Atlas Title’s services. Of those services, Hoffman bore the recording fee,

the wire fee, and cost of title insurance, while Hoffman and the Littles shared the

cost of the title binder and Atlas Title’s settlement fee.


1
  The purchase contract and deed are in only Hoffman’s name.
2
  At the time that Gordon recommended hiring Atlas Title as the escrow officer and title agent for the sale of
the property, Gordon “had a marketing role with Atlas” and Atlas Title employed Gordon’s fiancé.
(McCaulley Depo. at 68).

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Case No. 14-23-04


       {¶5} On April 13, 2021, a representative of Keller Williams informed

Hoffman and McMahon that they needed to wire $289,722.19 to Atlas Title at least

one day prior to the April 22, 2021 closing. McCaulley and Alice Elliot (“Elliot”),

McCaulley’s assistant, were copied on that email. The email further instructed

Hoffman and McMahon that “[t]he Title company will send you wire instructions

in a secure email. Upon receiving your wiring instructions, please contact or have

your bank contact the title company above, to confirm wiring instructions.” (Italics

sic.); (Underline added.) (Doc. No. 51, Ex. K1). Similarly, the day before,

McKenzie instructed Hoffman by text message that “[t]he title company will

provide wiring instructions. Be sure to call them to confirm the amount to wire and

instructions BEFORE you wire any money.” (Emphasis sic.) (Doc. No. 51, Ex. I).

       {¶6} Further, Joanie Lowry (“Lowry”), a client care coordinator with Keller

Williams, sent a Google Calendar invitation to Hoffman and McMahon as well as

McKenzie, McCaulley, and Elliott indicating the details for closing. Critically, the

invitation   reflects   McCaulley’s     and    Elliott’s   email    addresses    as

melonie@atlastitlesoulutions.com and alice@atlastitlesoulutions.com, respectively.

       {¶7} On April 20, 2021, Hoffman and McMahon received an email—which

appeared to be legitimate—from someone claiming to be Elliot (from email address

titleclosingagent101@gmail.com). See Children’s Apparel Network Ltd. v. Twin

City Fire Ins. Co., S.D.N.Y. No. 18 Civ. 10322, 

2019 WL 3162199

, *1 (June 26,


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Case No. 14-23-04


2019), fn. 3 (noting that “‘an email spoofing scheme’” is “defined as ‘a fraudulent

or malicious practice in which a communication is sent from an unknown source

disguised as a source known to the receiver’”); Silverstein v. Keynetics Inc., 

192 F.Supp.3d 1045, 1051

 (N.D.Ca.2016) (defining “email spoofing’” as a situation “by

which ‘the header of an e-mail appears to have originated from someone or

somewhere other than the actual source.’”), quoting Dep’t of Justice News Release,

FBI Says Web “Spoofing” Scams Are A Growing Problem, 

2003 WL 21692056

,

(July 21, 2003); Premiere Digital Access, Inc. v. Cent. Tel. Co., 

360 F.Supp.2d 1161, 1163

 (D.Nev.2005) (defining “‘spoofing’” as “the practice of forging e-mail

header information to hide the source of the e-mail”).

       {¶8} The above email instructed Hoffman and McMahon to wire

$289,772.19 to an account purporting to belong to Atlas Title. Importantly, the

email was sent to Hoffman and McMahon during the timeframe that they were

expecting to receive such email and the email “contained the actual time and date

of the closing * * * , [Hoffman’s and McMahon’s] names, the purchase price, the

identity of the individual at Atlas [Title] involved in the closing, and a replica of

[Atlas Title’s] actual wire transfer form, complete with the Atlas [Title] logo.”

(Doc. No. 2). Believing the authenticity of the email, Hoffman completed the wire

transfer that same day. Indeed, Hoffman, using the contact number provided on the

e-mail that he thought was from Atlas Title, contacted the person posing as a


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Case No. 14-23-04


representative of Atlas Title to confirm the transaction. However, the email was not

from Elliot or anyone at Atlas Title, and, unbeknownst to Hoffman and McMahon,

the email instructed them to wire the funds to an account belonging to an

unidentified person. Specifically, Hoffman and McMahon were instructed to wire

the funds to Frances Real Estate, LLC at an account held by Wells Fargo Bank in

Cincinnati, Ohio.

      {¶9} Significantly, prior to the transaction at issue in this case, Atlas Title

had been notified of a prior hacking incident, which compromised its email system

in February 2021, as well as prior email-spoofing efforts, including incidents

involving the same fraudster at issue in this case. Incredibly, the same fraudster

attempted to spoof the Littles on April 20, 2021—the same day that Hoffman sent

the wire transfer to the fraudster—in conjunction with the closing on the house they

were purchasing.

      {¶10} According to McCaulley, Atlas Title alerted Mark Milliron

(“Milliron”) of Kloud9, Atlas Title’s internet-technology security provider, of the

hacking and spoofing incidents. According to McCaulley, Milliron reported that

Atlas Title’s system was hacked and that the hacker was in an Atlas Title’s

employee’s email “for about an hour.” (McCaulley Depo. at 37). However,

McCaulley testified that Milliron reported that the hacker did not obtain any




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Case No. 14-23-04


information from Atlas Title. Notwithstanding these incidents, Atlas Title did not

inform Hoffman, McMahon, or McKenzie of the occurrences.

         {¶11} Nonetheless, Atlas Title emailed “the settlement statement and real

wire instructions * * * using an unencrypted email” on April 21, 2021 to Hoffman

and McMahon. (Emphasis added.) (Id.). However, that email was intercepted by

Hoffman’s email-spam filter.

         {¶12} Unaware of the fraud, Hoffman and McMahon “closed on the property

on April 22, 2021,” and “did not become aware of the legitimate e-mail and that

Atlas [Title] had not received the Purchase Funds until April 23, 2021.” (Id.).

Significantly, Atlas Title did not “alert [Hoffman or McMahon] that it had not

received the wire transfer” “prior to April 23, 2021.” (Id.). Consequently, Hoffman

and McMahon were unable to recover “the funds through banking channels * * * .”

(Id.).    Nevertheless, because Hoffman and McMahon secured a loan from

Hoffman’s grandmother, closing was rescheduled and the purchase was completed

on April 27, 2021.

         {¶13} On July 28, 2021, Hoffman and McMahon filed a complaint in the

trial court against Atlas Title, Keller Williams, Better Homes and Gardens,

McKenzie, and Gordon alleging claims for negligence, breach of fiduciary duty, and

(as an alternative to their negligence claim) breach of contract (as to Atlas Title,

Keller Williams, and McKenzie).


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Case No. 14-23-04


       {¶14} After being granted leave, Better Homes and Gardens and Gordon

filed an answer on September 21, 2021. Likewise, Atlas Title filed its answer along

with cross-claims against Keller Williams, Better Homes and Gardens, McKenzie,

and Gordon on September 28, 2021. Also that day, Keller Williams and McKenzie

filed an answer along with cross-claims against Atlas Title, Better Homes and

Gardens, and Gordon. Atlas Title as well as Keller Williams and McKenzie,

respectively, alleged cross-claims for implied indemnity and implied contribution.

       {¶15} Keller Williams and McKenzie field an answer to Atlas Title’s cross-

claims on November 1, 2021 and Better Homes and Gardens and Gordon filed an

answer to Atlas Title’s cross-claims on November 2, 2021.

       {¶16} On August 31, 2022, Atlas Title filed a motion for summary judgment,

arguing that it “did not owe a legally recognized duty to protect [Hoffman] from

third-parties”; that Atlas Title “never agreed to act in a fiduciary capacity for the

benefit of” Hoffman or McMahon; Hoffman and McMahon are “barred by the

economic loss rule”; and that there was no contract. (Doc. No. 51).

       {¶17} After being granted an extension of time, Hoffman and McMahon

filed their memorandum in opposition to Atlas Title’s motion for summary

judgment on October 18, 2022. As evidence in support of their memorandum in

opposition to Atlas Title’s motion for summary judgment, Hoffman and McMahon

submitted the affidavit of Carole Bullion (“Bullion”), an account executive with


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Case No. 14-23-04


Liberty Title Agency in Brighton, Michigan. In her affidavit, Bullion averred that,

based on her “experience and review and analysis of the materials provided” in this

case, “Atlas Title Solutions owes obligations to [Hoffman and McMahon] by virtue

of its serving as an escrow agent for the transaction for the purchase of the home”

at issue in this case. (Doc. No. 64, Ex. B).

       {¶18} To illustrate, Bullion highlighted that “[t]he title insurance/closing

industry is comprised of two parts—title insurance and escrow closing services” and

that “[a]n agency can conduct one or both of these functions during a transaction.”

(Id.). “The title insurance part of a transaction includes the examination of a

property’s title, preparation of a title commitment, and eventual issuance of a title

policy once all requirements have been met,” while “[t]he escrow closing services

portion of a transaction involves the clearance of all requirements of a title

commitment and the preparation of closing documents (including generating

settlement statements, ensuring the receipt of any funds needed for the transaction,

recording documents, and disbursing funds).” (Id.).

       {¶19} According to Bullion, Atlas Title “was serving as an escrow agent

even without a written agreement” when it agreed to provide “escrow closing

services” in this case. (Id.). Bullion averred that Atlas Title accepted its role as an

escrow agent in this case based on (1) “[t]he Master Settlement Statement”

reflecting “that Ms. McCaulley was the ‘Escrow Officer/Closer”; (2) the fees paid


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Case No. 14-23-04


by Hoffman and McMahon to Atlas Title, including “wire, recording, recording

service, and settlement fees”; and (3) because Atlas Title “performed tasks

consistent with those of an escrow agent,” including closing the transaction. (Id.).

         {¶20} Regarding escrow agreements, Bullion instructed that an “escrow

agreement to act as a settlement or escrow agent for the buyers and/or sellers” is

typically not required.      (Id.).   Such agreements are required only “when a

settlement/escrow agent needs direction on how to disburse funds held when there

are potential liens against the property or if there is a disagreement as to whom the

funds should be paid.” (Id.).

         {¶21} After reviewing the evidence in the record, Bullion averred that “Atlas

had an obligation to put in place procedures to protect consumers like [Hoffman and

McMahon] from the spoofing incident that occurred, as well as warn [Hoffman and

McMahon] of known spoofing incidents.” (Id.). Specifically, Bullion identified

that Atlas Title failed [Hoffman and McMahon]

         by (1) not having procedures in place for the safe transmittal of wiring
         instruction [sic] and adequately informing customers about such
         procedures; (2) not having procedures in place to warn customers of
         the risk of spoofing incidents and how to effectively avoid them; and
         (3) not warning [Hoffman and McMahon] that Atlas had been the
         target of the same spoofer multiple times prior to the transaction
         involving [Hoffman and McMahon].

(Id.).




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Case No. 14-23-04


         {¶22} Further, Bullion averred that “Atlas Title Solutions did not have an

adequate compliance program to safeguard their customers’ information.” (Id.).

Importantly, Bullion averred that Atlas Title “did not follow its own policy or the

[American Land Title Association (“ALTA”)] Best Practices,” which “fell well

below the industry standards of practice and failed their obligations to [Hoffman

and McMahon]” in this case. (Id.). Importantly, Bullion identified that

         this incident could not have happened had Atlas (1) had adequate
         procedures for wire transfers in place; (2) had adequate procedures for
         communicating wire procedures to customers; (3) adequately warned
         customers about spoofs and how to avoid them; (4) specifically
         warned [Hoffman and McMahon] that Atlas had been a target by the
         same fraudster * * * ; and (5) promptly advised [Hoffman and
         McMahon] that the wire had not been received.

(Id.).

         {¶23} Atlas Title filed its reply to Hoffman and McMahon’s memorandum

in opposition to its motion for summary judgment on November 10, 2022.

         {¶24} On September 9, 2022, Atlas Title dismissed its cross-claims against

Keller Williams and McKenzie without prejudice under Civ.R. 41(A)(1)(a). On

October 25, 2022, McMahon dismissed her claims against Atlas Title, Keller

Williams, Better Homes and Gardens, McKenzie, and Gordon without prejudice

under Civ.R. 41(A)(1). On October 27, 2022, Hoffman dismissed his claims against

Keller Williams and McKenzie with prejudice. On November 14, 2022, Hoffman

dismissed his claims against Better Homes and Gardens and Gordon with prejudice.


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Case No. 14-23-04


       {¶25} On November 17, 2022, the trial court granted summary judgment in

favor of Atlas Title as to Hoffman’s breach-of-fiduciary-duty and breach-of-

contract claims after concluding that “there exists no fiduciary duty or no privity of

contract.” (Doc. No. 78).

       {¶26} On December 16, 2022, Hoffman filed a motion requesting the trial

court to certify its November 17, 2022 decision under Civ.R. 54(B), which the trial

court granted on December 19, 2022. Consequently, the trial court dismissed

Hoffman’s negligence and gross-negligence claims with prejudice (based on

Hoffman’s request) and certified that there is no just reason for delay.

       {¶27} Hoffman filed his notice of appeal on December 19, 2022. He raises

two assignments of error for our review, which we will address together.

                            Assignment of Error No. I

       The Trial Court erred in dismissing Conor Hoffman’s breach of
       contract claim against Atlas Title Solutions, Ltd.

                            Assignment of Error No. II

       The Trial Court erred in dismissing Conor Hoffman’s breach of
       fiduciary duty claim against Atlas Title Solutions, Ltd.

       {¶28} In his assignments of error, Hoffman argues that the trial court erred

by granting summary judgment in favor of Atlas Title and dismissing his breach-of-

contract and breach-of-fiduciary-duty claims. In particular, Hoffman contends,

under his first assignment of error, that the trial court erred by concluding that a


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Case No. 14-23-04


written contract is necessary for Atlas Title to be in contractual privity with him.

Consequently, he argues genuine issues of material fact remain as to whether an

implied-in-fact contract for escrow services existed. Under his second assignment

of error, Hoffman specifically argues that genuine issues of material fact remain as

to whether Atlas Title breached its fiduciary duty.

                                Standard of Review

       {¶29} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 

90 Ohio St.3d 388, 390

 (2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47, 

2013-Ohio-2149, ¶ 25

, citing Costner Consulting Co. v. U.S.

Bancorp, 

195 Ohio App.3d 477

, 

2011-Ohio-3822

, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party

is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 

69 Ohio St.3d 217, 219

 (1994).

       {¶30} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 

2011-Ohio-4467, ¶ 13

, citing

Dresher v. Burt, 

75 Ohio St.3d 280, 292

 (1996). “In doing so, the moving party is


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Case No. 14-23-04


not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” 

Id.,

 citing 

Dresher at 292

.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” 

Id.,

 citing Dresher at 292 and Civ.R. 56(E).

                                       Analysis

       {¶31} In this case, the trial court granted summary judgment on November

17, 2022 in favor of Atlas Title as to Hoffman’s breach-of-contract and breach-of-

fiduciary-duty claims. Specifically, the trial court concluded that Atlas Title did not

breach any contract with Hoffman.        Reaching this conclusion, the trial court

reasoned that there is no genuine issue of material fact that there is no contractual

privity between Hoffman and Atlas Title. Likewise, the trial court concluded that

Atlas Title did not breach a fiduciary duty to Hoffman after concluding there is no

genuine issue of material fact that Atlas Title did not owe a fiduciary duty to

Hoffman since there is “no written contract or documentation that supports the

assertion that Atlas Title was the agreed upon escrow agent.” (Doc. No. 78).

       {¶32} Generally, Hoffman contends that Atlas Title breached its escrow

agreement and its corresponding fiduciary duty as a result of the escrow fraud

because Atlas Title agreed to facilitate the deal at issue in this case by conducting a

safe and compliant transaction. Atlas Title disputes Hoffman’s argument and


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Case No. 14-23-04


contends that “[t]he trial court correctly found that there was no contract by which

Atlas agreed to insure or otherwise guarantee that [Hoffman] would successfully

fund his purchase of the Real Estate.” (Appellee’s Brief at 18). Specifically, Atlas

Title argues that there is no genuine issue of material fact that no implied agreement

existed between it and Hoffman because Hoffman did not “relay his expectations to

Atlas and receive confirmation from Atlas that Atlas agreed to ensure that [he]

would successfully fund the purchase * * * .” (Id. at 19). Based on our review of

the record, we conclude that several triable issues remain in this case.

       {¶33} We will begin by addressing Hoffman’s argument that the trial court

erred by granting summary judgment in favor of Atlas Title as to his breach-of-

contract claim. For the reasons that follow, we conclude that genuine issues of

material fact remain as to whether Atlas Title breached its escrow agreement with

Hoffman. “A cause of action for breach of contract requires the claimant to establish

the existence of a contract, the failure without legal excuse of the other party to

perform when performance is due, and damages or loss resulting from the breach.”

Lucarell v. Nationwide Mut. Ins. Co., 

152 Ohio St.3d 453

, 

2018-Ohio-15, ¶ 41

.

       {¶34} In this case, Hoffman argues that the trial court erred by concluding

that a written agreement is a requirement for him to maintain his breach-of-contract

claim. “‘There are three classes of simple contracts; express, implied in fact, and

implied in law.’” Waffen v. Summers, 6th Dist. Ottawa No. OT-08-034, 2009-Ohio-


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Case No. 14-23-04


2940, ¶ 31, quoting Hummel v. Hummel, 

133 Ohio St. 520, 525

 (1938). “‘The

essential elements of a contract include an offer, acceptance, contractual capacity,

consideration (the bargained for legal benefit and/or detriment), a manifestation of

mutual assent, and legality of object and consideration.’” Rassi, 

2021-Ohio-2129, at ¶ 8

, quoting Thies v. Wheelock, 2d Dist. Miami No. 2017-CA-8, 

2017-Ohio-8605, ¶ 16

.

        {¶35} “‘In express contracts the assent to its terms is actually expressed in

offer and acceptance.’” Waffen at ¶ 31, quoting 

Hummel at 525

. However, “‘[i]n

contracts implied in fact the meeting of the minds, manifested in express contracts

by offer and acceptance, is shown by the surrounding circumstances which make it

inferable that the contract exists as a matter of tacit understanding.’” 

Id.,

 quoting

Hummel at 525

. See also Union Savs. Bank v. Lawyers Title Ins. Corp., 

191 Ohio App.3d 540

, 

2010-Ohio-6396

, ¶ 21 (10th Dist.) (“‘While both express and implied

contracts require the showing of an agreement based on a meeting of the minds and

mutual assent, the manner in which these requirements are proven varies depending

upon the nature of the contract.’”), quoting Reali, Giampetro & Scott v. Soc. Natl.

Bank, 

133 Ohio App.3d 844, 849

 (7th Dist.1999).

        {¶36} “An escrow agent ‘is an agent of both parties, as well as a paid trustee

with respect to the purchase money funds placed in his hands.’” Hurst v. Ent. Title

Agency, Inc., 

157 Ohio App.3d 133

, 

2004-Ohio-2307, ¶ 40

 (11th Dist.), quoting


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Case No. 14-23-04


Pippin v. Kern-Ward Bldg. Co., 

8 Ohio App.3d 196, 198

 (8th Dist.1982). “The

escrow agent owes the parties a duty ‘to carry out the terms of the agreement as

intended by the parties.’” 

Id.,

 quoting 

Pippin at 198

. “‘“The main function of an

escrow agent is to hold documents and funds until the conditions of the purchase

agreement are met whereupon the escrow agent releases the documents and

funds.”’” Union Savs. Bank at ¶ 22, quoting Waffen at ¶ 32, quoting Saad v.

Rodriguez, 

30 Ohio App.3d 156, 158

 (8th Dist.1986).

       {¶37} “Ohio courts have held that escrow agreements do not have to be in

writing.” 

Id.

 See also Johnson v. U.S. Title Agency, Inc., 8th Dist. Cuyahoga No.

103665, 

2017-Ohio-2852, ¶ 47

 (addressing “that an escrow agreement need not be

express or formal, and may be deemed to exist where there are only closing

instructions”).   Indeed, to constitute an “implied escrow agreement[],” “‘[n]o

precise form of words is necessary to constitute an escrow’” agreement and “‘[t]he

term “escrow” need not be used.’” Union Savs. Bank at ¶ 22, quoting Waffen at ¶

30. Rather, “‘whether an escrow exists in any case depends not so much upon the

terms the parties may use as upon the intent with which the deed or paper is

deposited in the hands of a third party.’” Id., quoting Waffen at ¶ 30.

       {¶38} We conclude that (at a minimum) a genuine issue of material fact

exists as to whether Hoffman and Atlas Title entered into an escrow agreement.

Accord Rassi, 

2021-Ohio-2129, at ¶ 8

; Waffen at ¶ 36. See also Union Savs. Bank


                                        -17-
Case No. 14-23-04


at ¶ 23 (concluding that “the court erred in granting summary judgment on

appellant’s breach-of-contract claim” “[b]ecause the trial court did not consider

whether an implied-in-fact contract existed between the parties and erroneously

concluded that appellant had paid no consideration”).          Indeed, based on the

circumstances surrounding the transaction at issue in this case, a triable issue

remains as to whether an escrow agreement exists as a matter of tacit understanding.

       {¶39} Here, the record reveals that Hoffman and the Littles requested that

Atlas Title serve as the escrow agent and title agent for their real-estate transaction.

Compare Lawyers Title Ins. Corp. v. MHD Corp., 6th Dist. Erie No. E-10-007,

2010-Ohio-5174

, ¶ 3 (noting that the title company “acted as escrow agent and title

agent”) with Kenney v. Henry Fischer Builder, Inc., 

129 Ohio App.3d 27, 31

 (1st

Dist.1998) (noting the title company served only as the title abstractor). Further,

the record reveals that Atlas Title agreed to perform as the escrow agent and title

agent and that Hoffman and the Littles promised to pay Atlas Title for those

services. (See, e.g., Doc. No. 51, Ex. G); (Doc. No. 34). Compare Waffen at ¶ 37

(concluding that “the contract exists as a matter of mutual tacit understanding” even

though “not expressly articulated” because all the elements of a contract—offer,

acceptance, contractual capacity, consideration, [and] manifestation of mutual

assent—exist”). Critically, the record reveals that Hoffman promised to pay the

recording fee, the wire fee, and cost of title insurance, while Hoffman and the Littles


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Case No. 14-23-04


promised to share the cost of the title binder and Atlas Title’s settlement fee. See

Rassi at ¶ 8

 (analyzing that “the Rassis requested that Buckeye perform the

‘necessary title work and closing’” and that “Buckeye, through [its agent], agreed

to and did perform the requested services, and the Rassis paid Buckeye for the

completed services”).

       {¶40} Moreover, Hoffman provided evidence in opposition to Atlas Title’s

motion for summary judgment that an “escrow agreement to act as a settlement or

escrow agent for the buyers and/or sellers” is typically not required. (Doc. No. 64,

Ex. B). According to Bullion’s affidavit (supplied by Hoffman), such agreements

are required only “when a settlement/escrow agent needs direction on how to

disburse funds held when there are potential liens against the property or if there is

a disagreement as to whom the funds should be paid.” (Id.).

       {¶41} Likewise, Buillion averred that Atlas Title “was serving as an escrow

agent even without a written agreement” when it agreed to provided “escrow closing

services” in this case. (Id.). Bullion averred that Atlas Title accepted its role as an

escrow agent in this case based on (1) “[t]he Master Settlement Statement”

reflecting “that Ms. McCaulley was the ‘Escrow Officer/Closer”; (2) the fees

Hoffman promised to pay to Atlas Title, including “wire, recording, recording

service, and settlement fees”; and (3) because Atlas Title “performed tasks

consistent with those of an escrow agent,” including closing the transaction. (Id.).


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       {¶42} Nevertheless, the trial court concluded that the parties did not have

contractual privity. “‘“A contract is binding only upon parties to a contract and

those in privity with them.”’” Gilchrist v. Saxon Mtge. Servs., 10th Dist. Franklin

No. 12AP-556, 

2013-Ohio-949

, ¶ 23, quoting DVCC, Inc. v. Med. College of Ohio,

10th Dist. Franklin No. 05AP-237, 

2006-Ohio-945, ¶ 19

, quoting Samadder v. DMF

of Ohio, Inc., 

154 Ohio App.3d 770

, 

2003-Ohio-5340, ¶ 25

 (10th Dist.). “Privity is

defined as ‘[t]he connection or relationship between two parties, each having a

legally recognized interest in the same subject matter.’” Bohan v. Dennis C.

Jackson Co., L.P.A., 

188 Ohio App.3d 446

, 

2010-Ohio-3422

, ¶ 12 (8th Dist.),

quoting Shoemaker v. Gindlesberger, 

118 Ohio St.3d 226

, 

2008-Ohio-2012

, ¶ 10.

Generally, “Ohio courts have refused to find privity of contract between a purchaser

and a title company when the title examination is performed as part of a contract

between the lender and the title company.” (Emphasis added.) Rassi, 2021-Ohio-

2129, at ¶ 9.

       {¶43} Here, the trial court erroneously concluded that Hoffman and Atlas

Title lacked contractual privity. Since the transaction at issue in this case was a cash

transaction, Hoffman and the Littles contracted directly with Atlas Title to serve as

the escrow agent and title agent for the transaction. Accord 

id.

 (concluding that

“there was privity of contract between” the Rassis and Buckeye because “the Rassis

contracted directly with Buckeye to perform the title examination and the closing”).


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Case No. 14-23-04


Thus, genuine issues of material fact remain as to whether an implied contract for

escrow services exists in this case. Consequently, we conclude that the trial court

erred by granting summary judgment in favor of Atlas Title as to Hoffman’s breach-

of-contract claim.

       {¶44} Turning to Hoffman’s breach-of-fiduciary-duty claim, Hoffman

argues that the trial court erred by granting summary judgment in favor of Atlas

Title as to his breach-of-fiduciary-duty claim because (at a minimum) genuine

issues of material fact remain as to whether an implied agreement for escrow

services exists. Importantly, Hoffman argues that, “[i]f Atlas [Title] was an escrow

agent, then Ohio law provides as a matter of common law [that] Atlas [Title] owes

fiduciary obligations to Mr. Hoffman.” (Appellant’s Brief at 24). Atlas Title

contests Hoffman’s argument by remaining steadfast that the parties did not form

any such agreement. Alternatively, Atlas Title argues that “[i]f there is a contract,

* * * the economic lass rule precludes recovery for economic damages for any

alleged breach of fiduciary duty.” (Appellee’s Brief at 25). Based on our review of

the record, we conclude that genuine issues of material fact remain as to whether

Atlas Title breached a fiduciary duty to Hoffman.

       {¶45} “‘The elements for a breach of fiduciary duty claim are: “(1) the

existence of a duty arising from a fiduciary relationship; (2) a failure to observe the

duty; and (3) an injury resulting proximately therefrom.”’” Camp St. Mary’s Assn.


                                         -21-
Case No. 14-23-04


of W. Ohio Conference of the United Methodist Church, Inc., 

176 Ohio App.3d 54

,

2008-Ohio-1490, ¶ 19

 (3d Dist.), quoting Thomas v. Fletcher, 3d Dist. Shelby No.

17-05-31, 

2006-Ohio-6685, ¶ 13

, quoting Werthmann v. DONet, 2d Dist.

Montgomery No. 20814, 

2005-Ohio-3185, ¶ 42

. “‘A claim of breach of fiduciary

duty is basically a claim for negligence that involves a higher standard of care.’”

Id.,

 quoting All Star Land Title Agency, Inc. v. Surewin Invest., Inc., 8th Dist.

Cuyahoga No. 87569, 

2006-Ohio-5729, ¶ 36

. “Thus, the party asserting such a

breach must establish the existence of a fiduciary duty, a breach of that duty, and an

injury proximately resulting therefrom.” Hurst v. Ent. Title Agency, Inc., 

157 Ohio App.3d 133

, 

2004-Ohio-2307, ¶ 39

 (11th Dist.).

       {¶46} “‘A fiduciary has been defined as a person having a duty, created by

his or her undertaking, to act primarily for the benefit of another in matters

connected with such undertaking.’” 

Id.,

 quoting All Star Land Title Agency at ¶ 36.

See also Ciszewski v. Kolaczewski, 9th Dist. Summit No. 26508, 

2013-Ohio-1765, ¶ 10

 (“A fiduciary relationship is ‘a relationship “in which special confidence and

trust is reposed in the integrity and fidelity of another and there is a resulting position

of superiority or influence, acquired by virtue of this special trust.”’”), quoting Ed

Schory & Sons, Inc. v. Soc. Natl. Bank, 

75 Ohio St.3d 433, 442

 (1996), quoting In

re Termination of Employment of Pratt, 

40 Ohio St.2d 107, 115

 (1974). “A

fiduciary’s role may be assumed by formal appointment or may arise from a more


                                           -22-
Case No. 14-23-04


informal confidential relationship, wherein ‘one person comes to rely on and trust

another in his important affairs and the relations there involved are not necessarily

legal, but may be moral, social, domestic, or merely personal.’” Foelsch v. Farson,

5th Dist. Knox No. 19CA000036, 

2020-Ohio-1259, ¶ 20

, quoting Craggett v. Adell

Ins. Agency, 

92 Ohio App.3d 443, 451

 (8th Dist.1993).

       {¶47} Significantly, “‘“[t]he very name ‘escrow’ gives it the earmarks of a

trust.”’” Johnson, 

2017-Ohio-2852, at ¶ 45

, quoting Pippin, 

8 Ohio App.3d at 198

,

quoting Squire v. Branciforti, 

131 Ohio St. 344, 355

 (1936). “‘Thus, the escrow

agent is a fiduciary agent for both parties to a purchase agreement.’” (Emphasis

added.) 

Id.,

 quoting Saad, 

30 Ohio App.3d at 158

. “The escrow agent owes the

parties a duty ‘to carry out the terms of the agreement as intended by the parties.”’

Hurst, 

157 Ohio App.3d 133

, 

2004-Ohio-2307, at ¶ 40

, quoting 

Pippin at 198

.

However, “[a]n escrow agent, despite fiduciary status, will not be liable when he or

she acts in accordance with the escrow agreement or instructions.” Waffen at ¶ 34.

       {¶48} Based on our resolution of Hoffman’s first assignment of error, we

conclude that (at a minimum) a genuine issue of material fact exists as to whether

an implied contract for escrow services exists. See Waffen, 

2009-Ohio-2940

, at ¶

36 (concluding that “sufficient documentation and evidence exists to show that an

implied contract for escrow exists”). Importantly, the record reveals that Atlas Title

agreed to act as the escrow agent and title agent in this case. See 

id.

 at ¶ 35


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Case No. 14-23-04


(analyzing that “Midland acted as escrow agent, and knew the terms by which it was

bound to perform” because, in part, its agent “acknowledged that Midland provided

escrow services for Waffen”). Indeed, the record reflects that Hoffman was a party

to the transaction and that the parties promised to pay Atlas Title the fees for its

escrow services as listed in the settlement agreement. See 

id.

 (concluding that the

record reflected sufficient evidence that an implied contract for escrow services

existed because, in part, the title agency “collected fees for escrow services as listed

in the settlement worksheet”). Thus, because we conclude that a triable issue as to

the existence of an escrow agreement exists, a triable issue as to the existence of a

fiduciary duty remains and, consequently, whether Atlas Title breached that duty.

See 

Hurst at ¶ 54

 (O’Neill, J., dissenting) (concluding that “as an escrow agent, [the

title company] owed a fiduciary duty to Hurst”); 

Waffen at ¶ 41

 (establishing that

“ordinarily, escrow agents are fiduciaries”).

       {¶49} Furthermore, contrary to Atlas Title’s contention that the economic-

loss rule precludes Hoffman’s recovery for economic damages for any alleged

breach of [a] fiduciary duty,” Atlas Title’s argument is misplaced. Generally,

“[a]bsent tangible physical harm to persons or tangible things, there is generally no

duty to exercise reasonable care to avoid economic losses to others.” Clemens v.

Nelson Fin. Group, Inc., 10th Dist. Franklin No. 14AP-537, 

2015-Ohio-1232

, ¶ 34.

“The economic-loss rule, therefore, ‘generally prevents recovery in tort of damages


                                         -24-
Case No. 14-23-04


for purely economic loss.’” 

Id.,

 quoting Corporex Dev. & Constr. Mgt., Inc. v.

Shook, Inc., 

106 Ohio St.3d 412

, 

2005-Ohio-5409

, ¶ 6. “That is, ‘a plaintiff who

has suffered only economic loss due to another’s negligence has not been injured in

a manner which is legally cognizable or compensable.’” 

Id.,

 quoting Corporex at ¶

6.

       {¶50} “Although the economic-loss rule sweeps widely, it does not preclude

all tort claims for economic damages.” (Emphasis added.) Id. at ¶ 36. Importantly,

“[a] plaintiff may pursue such a tort claim if it is ‘based exclusively upon [a]

discrete, preexisting duty in tort and not upon any terms of a contract or rights

accompanying privity.’” Id., quoting Corporex at ¶ 9. Exempt claims include, as

relevant here, a breach-of-fiduciary-duty claim. Id., citing Morgan v. Mikhail, 10th

Dist. Franklin No. 08AP-87, 

2008-Ohio-4598, ¶ 69

.           Therefore, Atlas Title’s

argument regarding the application of the economic-loss rule as to Hoffman’s

breach-of-fiduciary-duty claim fails.

       {¶51} For these reasons, Hoffman’s assignments of error are sustained.

       {¶52} Having found error prejudicial to the appellant herein in the particulars

assigned and argued, we reverse the judgment of the trial court and remand for

further proceedings.

                                                            Judgment Reversed and
                                                                 Cause Remanded

MILLER, P.J. and WILLAMOWSKI, J., concur.

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