[Cite as Rassi v. Buckeye Title Agency, Inc., 2021-Ohio-2129.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
BASSAM RASSI, et al. :
:
Plaintiffs-Appellants : Appellate Case No. 28985
:
v. : Trial Court Case No. 2019-CV-4288
:
BUCKEYE TITLE AGENCY, INC. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 25th day of June, 2021.
...........
MICHAEL R. ECKHART, Atty. Reg. No. 0031450, 5335 Far Hills Avenue, #109, Dayton,
Ohio 45429
Attorney for Plaintiffs-Appellants
GABRIELLE NEAL, Atty. Reg. No. 0092770, 2700 Stratacache Tower, Dayton, Ohio
45423
Attorney for Defendant-Appellee
.............
TUCKER, P.J.
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{¶ 1} Bassam Rassi and George Rassi appeal from a judgment of the Montgomery
County Court of Common Pleas, which concluded that the Rassis had not entered into a
contract with Buckeye Title Agency, Inc. (Buckeye). Although the trial court erred in
concluding that no contract had been entered, the trial court’s summary judgment will
nonetheless be affirmed because, as a matter of law, the Rassis did not suffer any
damages.
Facts and Procedural History
{¶ 2} Evelyn Cox owned a home on Penneywood Drive in Beavercreek, Ohio,
which was in foreclosure. Based upon the foreclosure status, the Rassis were interested
in purchasing the home and contacted the law firm handling the foreclosure action for the
involved bank. The law firm referred the Rassis to Buckeye, indicating that Buckeye “had
been working on a previous sale but it [fell] through.” The Rassis contacted Buckeye,
talked to Julie Engberg, and informed her that they wanted to buy the Penneywood Drive
property; they asked Buckeye “to do the necessary title work and closing * * *.” Engberg
indicated that Buckeye would perform the requested services.
{¶ 3} The Rassis and Cox entered into a contract for the purchase of the
Penneywood Drive home. The purchase price was the “Amount of Payoff.” This was a
cash transaction, meaning, of course, that a bank was not involved. The Rassis paid
Buckeye $450 for title services, which included a title examination.
{¶ 4} Through the actions of Julie Engberg, Buckeye processed the Penneywood
Drive transaction, which included preparing the closing documents and conducting the
closing. In an affidavit in support of Buckeye’s summary judgment motion, Engberg
stated that “the title exam for the [Penneywood Drive] [p]roperty did reveal both the first
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mortgage and the HUD mortgage.1 Both mortgages show the same loan number, so I
believed that when I obtained the payoff [from the law firm handling the foreclosure], it
was for both liens.” The amount of the HUD lien was $17,257.56. But, as stated by
Engberg, the payoff amount from the law firm reflected only the first mortgage payoff in
the amount of $98,783.76. As a result, the Rassis paid $98,783.76 at the closing,
thinking that this was the payoff amount that they were obligated to pay under the
purchase contract. HUD subsequently demanded that the Rassis satisfy its $17,257.36
lien. The Rassis filed a complaint against Buckeye, asserting that they should not be
responsible for this amount. The trial court granted Buckeye’s summary judgment
motion. This appeal followed.2
Assignments of Error
{¶ 5} The Rassis assert three assignments of error as follows:
(1) [THE] TRIAL COURT ERRED IN FINDING THERE WAS NO EXPRESS
CONTRACT OR IMPLIED-IN-FACT CONTRACT BETWEEN * * * [THE]
RASSIS AND * * * BUCKEYE TITLE AGENCY, INC.
(2) [THE] TRIAL COURT ERRED IN [FAILING] TO FIND THAT BUCKEYE
WAS LIABLE DUE TO NEGLIGENT MISREPRESENTATION AND
NEGLIGENT DISSEMINATION OF INFORMATION UNDER THE CASE
1
Cox’s loan was a Federal Housing Authority (FHA) loan. When an FHA loan falls into
arrears, the lender can make a claim to the Department of Housing and Urban
Development (HUD) as the insurer of the loan. HUD will then make a partial payment to
the lender and file a lien for the amount of the partial payment.
2
Buckeye points out that the Rassis were offered but declined to purchase title insurance,
that at closing the Rassis and Cox executed a “Hold Harmless” agreement, and that the
Rassis and Buckeye did not enter into an escrow agreement. These facts are not
pertinent to our resolution of the Rassis’ assignments of error.
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OF HADDON VIEW INVESTMENT CO. V. COOPERS LYBRAND (1982)
70 OHIO ST.2D 154.
(3) [THE] TRIAL COURT ERRED IN FAILING TO FIND THAT BUCKEYE
* * * HAD A FIDUCIARY DUTY TO THE RASSIS TO INFORM THEM THAT
THERE WAS A SECOND MORTGAGE AND THAT IT WAS NOT BEING
PAID OFF.
Standard
{¶ 6} Under Civ.R. 56, summary judgment is proper when: (1) a case presents no
genuine issue as to any material fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) construing the evidence most strongly in favor of the non-moving
party, reasonable minds can reach only one conclusion, which is adverse to the non-
moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d
46 (1978); Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-
3197, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696
N.E.2d 201 (1998). The substantive law of the claim or claims being litigated determines
whether a fact is “material.” Herres v. Millwood Homeowners Assn., Inc., 2d Dist.
Montgomery No. 23552, 2010-Ohio-3533, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs.,
Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
{¶ 7} Initially, the movant bears the burden of establishing the absence of any
genuine issues of material fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798 (1988). The movant may rely only on evidence of the kinds listed in Civ.R. 56(C) for
this purpose. Dalzell at ¶ 5, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears a
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reciprocal burden to establish, as set forth in Civ.R. 56(E), that the case presents one or
more genuine issues of fact to be tried. Id. at ¶ 6. The non-moving party, in satisfying
this requirement, may not rely merely upon the allegations or denials offered in the
pleadings, but like the movant, “must be able to point to evidentiary materials of the type
listed in Civ.R. 56(C).” Dresher at 293, quoting Civ.R. 56(E); Dalzell at ¶ 6. On appeal,
a trial court’s ruling on a motion for summary judgment is reviewed de novo. Dalzell at
¶ 6, citing Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.
Analysis
{¶ 8} “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.” Thies v.
Wheelock, 2017-Ohio-8605, 100 N.E.3d 903, ¶ 16 (2d Dist.). In the pending case, the
Rassis requested that Buckeye perform the “necessary title work and closing.” Buckeye,
through Engberg, agreed to and did perform the requested services, and the Rassis paid
Buckeye for the completed services. As such, there was an offer (Rassi’s request that
Buckeye perform the title work and closing), acceptance (Engberg’s indication that
Buckeye would perform the requested services), and consideration (the fee which
Buckeye charged and the Rassis paid). Moreover, there was no dispute concerning
contractual capacity, mutual consent, or the legality of the services requested by the
Rassis and performed by Buckeye. Thus, we conclude that the Rassis and Buckeye
entered into a contract.
{¶ 9} The trial court’s contrary conclusion seems to be based upon the thought that
there was no privity of contract between the Rassis and Buckeye. In Thomas v.
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Guarantee Title and Trust, 81 Ohio St. 432, 91 N.E. 183 (1982), the supreme court ruled
as follows:
An action against an abstracter to recover damages for negligence in
making or certifying an abstract of title does not sound in tort, but must be
founded on contract; and the general rule is that an abstracter can be held
liable for such negligence only to the person who employed him.
Id. at paragraph one of the syllabus. Based upon Thomas, 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. Kenney v.
Henry Fischer Builder, Inc., 129 Ohio App.3d 27, 716 N.E.2d 1189 (1st Dist.1998);
Shearer v. Echelberger, 5th Dist. Ashtabula No. 00-COA-1368, 2000 WL 1663626. But
in the pending case, the Rassis contracted directly with Buckeye to perform the title
examination and the closing. Since the Rassis employed Buckeye themselves, there
was privity of contract between the two.
{¶ 10} Having found that the Rassis and Buckeye entered into a contract, we also
find, as a matter of law, that Buckeye’s mistake regarding the HUD lien did not cause the
Rassis to suffer any damages. “The elements of a breach of contract claim are ‘the
existence of a contract, performance by the plaintiff, breach by the defendant, and
damage or loss to the plaintiff.’ ” Hillier v. Fifth Third Bank, 2020-Ohio-3679, 154 N.E.3d
1266, ¶ 24 (2d Dist.), quoting Becker v. Direct Energy, LP, 2018-Ohio-4134, 112 N.E.3d
978, ¶ 38 (2d Dist.), quoting Doner v. Snapp, 98 Ohio App.3d, 597, 600, 649 N.E.2d 42
(2d Dist.1994). The purchase contract between the Rassis and Cox set the purchase
price for the Penneywood Drive home as the “Amount of Payoff.” Therefore, the Rassis
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were contractually obligated to pay off whatever amount was due upon the home, which
included the HUD lien. Buckeye’s failure to include the HUD lien on the closing
settlement statement simply did not alter the Rassis’ contractual payoff obligation.
Moreover, the Rassis did not articulate to the trial court or to this court how they had been
damaged by Buckeye’s mistake. Given these facts, we conclude, as a matter of law,
that the Rassis did not suffer any damages as a result of Buckeye’s mistake. On this
basis, the trial court correctly granted summary judgment to Buckeye.3
Conclusion
{¶ 11} For the foregoing reasons, the judgment of the Montgomery County
Common Pleas Court is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Michael R. Eckhart
Gabrielle R. Neal
Hon. Mary Lynn Wiseman
3
Given the conclusion that the Rassis did not suffer any damages, there is no reason for
us to consider the two remaining assignments of error.