{¶ 1} Plaintiff-appellant, Union Savings Bank (“appellant”), appeals the judgment of the Franklin County Court of Common Pleas, which granted summary
{¶ 2} In May 2003, Jerry and Jacqueline Benis filed a loan application with appellant, seeking to refinance the first mortgage on their home. Their loan application advised appellant that besides their first mortgage with Wells Fargo, they had an outstanding mortgage with Fifth Third Bank (“Fifth Third”). Appellant thereafter submitted a written request for title commitment from appellee, with whom it had a long-standing business relationship. In the request, appellant advised appellee of the Wells Fargo first mortgage and the outstanding Fifth Third mortgage. Appellee’s subsequent title search revealed, however, that Fifth Third had two outstanding mortgages on the property. Lawrence Press, appellee’s assistant area manager, prepared a written title opinion and provided it to appellant on June 19, 2003. The title opinion identified three outstanding mortgages on the property: (1) a mortgage to Fifth Third, recorded on May 25, 2001, to secure the original principal amount of $140,000, (2) a mortgage to Prospect Bank (аssigned to Wells Fargo), recorded on October 28, 2002, to secure the original principal amount of $275,000, and (3) a mortgage to Fifth Third, recorded on January 7, 2003, to secure the original principal amount of $52,000.
{¶ 3} Prior to closing on the loan, appellant, on August 14, 2003, provided appellee with written closing instructions, which directed appellee to “p/o Wells Fargo” and “subn. 5/3d.” The parties agree that “subn. 5/3d” means “subordinate Fifth Third Bank.” The closing instructions also directed appellee to fax a copy of the title work, the HUD-1 settlement statement, the initial escrow disclosure, and appellee’s funding sheet for review by appellant before the closing.
{¶ 4} Thereafter, a subordination request was submitted to Fifth Third requesting subordination of only the outstanding mortgage recorded on January 7, 2003. Thereafter, a subordination agreement was prepared, subordinating only that mortgage. The subordination agreement, executed on August 12, 2003, was signed by representatives of Fifth Third that same day. Appellee closed the loаn on August 18, 2003. The settlement statement prepared by appellee in connection with the closing indicates that appellee received a closing fee of $175, a title examination fee of $75, and a recording handling fee of $15. Laura Sheets, an operations manager with appellant, signed the subordination agreement on September 8, 2003.
{¶ 5} Approximately two years later, the Benises defaulted on their loan with appellant. In appellant’s ensuing foreclosure action, the Fifth Third lien omitted
{¶ 6} On May 23, 2008, appellant filed a complaint against appellee for negligence and breach of contract. On March 26, 2009, appellant filed an amended complaint adding a claim for breach of fiduciary duty. Appellant’s negligence claim asserted that appellee, acting as appellant’s escrow/closing agent, had a duty to properly close the loan, and breached that duty by failing to ensure that appellant’s mortgage had first priority over all other liens and encumbrances and/or to ensure that all other liens were paid in full. Appellant’s breach-of-contract claim asserted that a contract existed between appellant and appellee and that appellee breached the contract by failing tо ensure that appellant’s mortgage had first priority over all other liens and encumbrances and/or by failing to ensure that all other liens were paid in full. Appellant’s breach-of-fiduciary claim asserted that a fiduciary relationship existed between appellant and appellee and that appellee breached the duty by (1) failing to close the loan with the ordinary skill and diligence reasonably expected of an escrow agent, (2) failing to follow the closing instructions provided by appellant, (3) failing to seek clarification of any ambiguous instructions provided by appellant, and (4) failing to ensure that appellant’s mortgage had first priority over all other liens and encumbrances and/or to ensure that all other liens were paid in full.
{¶ 7} Appellee filed a motion for summary judgment on June 26, 2009. On July 9, 2009, appellant filed a combined memorandum opposing appellee’s motion for summary judgment and cross-motion for summary judgment. However, on July 9, 2009, the trial court filed a sua sponte order striking appellee’s summary-judgment motion for failure to comply with Loc.R. 12.01 of the Franklin County Court of Common Pleas.
{¶ 8} Thereafter, on July 21, 2009, appellee filed a conforming motion for summary judgment. Appellee asserted several arguments, three of which are pertinent here. Appellee first argued that appellant’s negligence and breach-of-fiduciary-duty claims were barred by the four-year statute of limitations set forth in R.C. 2305.09(D). Appellee argued that appellant’s tort claims acсrued on August 18, 2003, the date of the closing or, at the very latest, on September 8, 2003, when appellant’s representative executed the subordination agreement. Appellee argued that as of those dates, appellant knew or should have known that although two separate Fifth Third mortgages encumbered the property, only one had been subordinated. Accordingly, argued appellee, appellant’s tort claims, filed March 26, 2009, were barred by the applicable statute of limitations.
{¶ 10} Finally, appellee argued that because there was no contractual relationship between it and appellant, and because appellant sought only economic damages related to the unsubordinated Fifth Third mortgage, the economic-loss rule barred appellant’s tort claims.
{¶ 11} On July 30, 2009, appellant filed a combined memorandum opposing appellee’s motion for summary judgment and a cross-motion for summary judgment. Appellant first asserted that a valid contract existed between it and appellee, evidenced by the fact that appellant had asked appellee to perform the loan closing by sending appellee the request for title commitment, and appellee agreed by performing the closing and being paid for that service. Appellant argued that this сontractual relationship required appellee to comply with appellant’s written closing instructions. Appellant denied that its closing instructions were ambiguous, arguing that the only reasonable interpretation of the instruction to “subn. 5/3” — given that appellee was aware of the two outstanding Fifth Third mortgages — was that appellee was to subordinate, or at least confirm the subordination of, both Fifth Third mortgages.
{¶ 12} Appellant next asserted that appellee’s statute-of-limitations defense was without merit. Appellant argued that its tort causes of action did not accrue at the time of the loan closing because at that point, appellant had suffered no determinable damages. Appellant argued that its tort claims were not ripe, and, thus, the statute of limitations did not begin to run until it suffered determinable damages on March 17, 2008, the day the payout of the sheriffs-sale proceeds occurred and Fifth Third’s unsubordinated lien took priority over appellant’s lien.
{¶ 13} Finally, appellant asserted that the economic-loss rule did not preclude its tort claims.
{¶ 14} On March 8, 2010, the trial court issued a decision and entry that (1) granted appellee’s July 21, 2009 motion for summary judgment, (2) denied as moot appellee’s June 26, 2009 motion for summary judgment, and (3) denied appellant’s July 9, 2009 and July 30, 2009 cross-motions for summary judgment. As pertinent here, the trial court found that no contractual relationship existed between appellant and appellee and that both the applicable statute of limitations
{¶ 15} Appellant timely appeals, raising three assignments of error:
The trial court erred in granting defendant-appellee Lawyers Title Insurance Corporation’s motion for summary judgment by finding that there was no contract between Union and Lawyers Title.
The trial court erred in granting defendant-appellee Lawyers Title Insurance Corporation’s motion for summary judgment by finding that the statute of limitations barred Union’s negligence and breach of fiduciary duty claims.
The trial court erred in granting defendant-appellee Lawyers Title Insurance Corporation’s motion for summary judgment by finding that the economic-loss rule barred Union’s negligence and breach of fiduciary duty claims.
{¶ 16} As all three of appellant’s assignments of error challenge the trial court’s grant of summary judgment to appellee, we begin by setting forth the familiar standard governing summary judgment. Summary judgment is appropriate only when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992),
{¶ 17} “[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.” Dresher v. Burt (1996),
{¶ 18} Appellate review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994),
{¶ 19} Appellant’s first assignment of error contends that the trial court erred in granting appellee’s motion for summary judgment on its breach-of-contract claim on grounds that no contract existed between the parties. The trial court found that appellant failed to demonstrate that there was a meeting of the minds between the parties or that there was any type of formal agreement that established thе relationship and duties between the parties. The court further found that appellant failed to demonstrate that any consideration was paid by appellant. The court concluded that because appellant had failed to demonstrate the existence of a contract, an essential element of its breach-of-contract claim, appellee was entitled to summary judgment on that claim.
{¶ 20} The elements of a contract include offer, acceptance, contractual capacity, consideration (the bargained-for legal benefit or detriment), a manifestation of mutual assent, and legality of object and consideration. Lake Land Emp. Group of Akron, L.L.C. v. Columber,
{¶ 21} Appellant contends that the circumstances surrounding the loan transaction, including the doсumentation and parties’ conduct associated therewith, along with the parties’ long-standing business relationship with regard to mortgage-loan closings, demonstrate that appellant and appellee had an implied contract whereby appellee agreed to act as escrow agent for appellant. Ohio law recognizes three types of contracts: express, implied in fact, and implied in law. Fouty v. Ohio Dept. of Youth Servs.,
{¶ 22} “ ‘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.’ ” Id. at ¶ 32, quoting Saad v. Rodriguez (1986),
No precise form of words is necessary to constitute an escrow. The term “escrow” need not be used. * * * Thus, 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.
{¶ 23} As noted above, the trial court determined that appellant’s breach-of-contract claim failed because there was no meeting of the minds between the parties or any formаl agreement that established the relationship and duties between the parties and that no consideration was paid by appellant. It does not appear that the trial court considered whether the conduct of the parties or circumstances surrounding the loan closing established that the parties entered into a contractual relationship despite the absence of any formal agreement. Such circumstances must be considered before the court can rule on whether a contract implied in fact exists between the parties. We further note that the trial court erroneously concluded that no consideration was paid by appellant because the Benises paid for appellee’s title services. “In general, if the consideration given is sufficient to support a contract it does not matter from or to whom it moves. The consideration may be given to the promisor or a third person or may be given by the promisee or a third person.” Coldwell Banker Residential Real Estate Servs. v. Bishop (1985),
{¶ 24} Appellant’s second assignment of error asserts that the trial court erred in finding that the four-year statute of limitations set forth in R.C. 2305.09(D) barred appellant’s negligence and breach-of-fiduciary-duty claims. We disagree.
{¶ 25} Initially, we note that the parties do not dispute that the applicable limitations period for both the negligence and breach-of-fiduciary-duty claims is four years, as set forth in R.C. 2305.09(D). “Generally, a cause of action accrues at the time the wrongful act is committed.” Harris v. Liston (1999),
{¶ 26} Appellant contends, however, that the limitations period did not begin to run until it suffered determinable damages on March 17, 2008, the day the payout of the sheriffs sale proceeds occurred and Fifth Third’s lien took priority over appellant’s lien. In essence, appellant urges this court to apply the “discovery rule,” or what has been alternatively termed a “delayed damages” rule, to this matter.
{¶ 27} Appellant relies upon Velotta v. Leo Petronzio Landscaping, Inc. (1982),
{¶ 28} Appellant appears to rely on Velotta in an attempt to distinguish its delayed-damage theory from the discovery rule. “The ‘discovery rule’ gener
{¶ 29} This court has rejected the delayed-damage theory. “ ‘The statute of limitations commences to run as soon as the injurious act complained of is committed; delayed damage is ineffective to delay the accrual of a cause of action predicated upon a wrongful act.’ ” Dublin v. Bansek, 10th Dist. No. 10AP-14,
{¶ 30} In Chandler v. Schriml (May 25, 2000), 10th Dist. No. 99AP-1006,
Chandler alleged in his complaint that he would not have purchased the duplex for the amount paid had he known that the duplex was zoned for single-family use. From the time he closed on the property, Chandler owned less than he believed. Thus, Chandler’s injury occurred at the closing on April 26, 1994. The fact that Chandler did not realize his injury until much later does not change the fact that the financial injury occurred at the closing.
Chandler at *4. We thus affirmed the trial court’s decision finding that Chandler’s negligent-misrepresentation claim was time-barred under R.C. 2305.09(D).
{¶ 32} As in Chandler, we find that appellant’s argument in support of delayed damages is irrelevant because appellant did not suffer delayed damages. Appellant suffered damages at the time of the closing in August 2003, when it assumed a second lien position due to the failure to subordinate both Fifth Third liens, and its cause of action for negligence and breach of fiduciary duty arose at that time. That appellant did not realize damages until the foreclosure action in March 2008 does not change the fact that appellant suffered damages at the time of the closing.
{¶ 33} Accordingly, appellant’s claims were subject to a four-year statute of limitations commencing on August 18, 2003, at the time of the alleged negligence and breach of fiduciary duty. Appellant’s amended complaint was not filed until July 2009, well after the four-year period. Accordingly, the trial court did not err in granting appellee’s motion for summary judgment on appellant’s negligence and breach-of-fiduciary-duty claims on grounds that those claims are time-barred by R.C. 2305.09(D). The second assignment of error is overruled.
{¶ 34} Appellant’s third assignment of error argues that the trial court erred in determining that the economic-loss rule barred appellant’s negligence and breach-of-fiduciary-duty claims. Our conclusion that the trial court properly determined that appellant’s negligence and breach-of-fiduciary-duty claims are time-bаrred by R.C. 2305.09(D) renders appellant’s argument moot. App.R. 12(A)(1)(c). The third assignment of error is thus overruled as moot.
Judgment affirmed in part and reversed in part, and cause remanded.
Notes
. Fifth Third assigned this mortgage to Premcor IV, L.L.C., prior to appellant's foreclosure.