COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60922 : : SHAFRON ENTERPRISES DEFINED : BENEFIT PENSION PLAN : : Plaintiff-Appellant : : -vs- : JOURNAL ENTRY : AND MIDLAND TITLE SECURITY, INC., : OPINION ET AL. : : Defendants-Appellees : : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 25, 1992 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CP-117505 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: SEYMOUR GROSS ALAN W. KOEHLER 450 Standard Bldg. 113 St. Clair East, Suite 600 Cleveland, Ohio 44113-1701 Cleveland, Ohio 44114 -2- ANN McMANAMON, J.: Shafron Enterprises Defined Benefit Pension Plan timely appeals the entry of summary judgment for Midland Title Security, Inc., on Shafron's negligence and breach of contract claims. In one assignment of error, Shafron challenges the court's ruling. We affirm. Shafron also does business as Woodview Development Company. In April, 1986, Woodview purchased two lots in Summit County for $14,000 from Sabrina Katzenmeyer. The purchase agreement provided that the lots were to be transferred "free from all encumbrances except restrictions of record and zoning ordinances ***." The warranty deeds transferring the property stated that the property was free from "all encumbrances whatsoever except taxes." Shafron retained Midland to issue title insurance and perform escrow duties. On May 15, 1986, a title search was conducted and the following day Midland filed the deeds, which were recorded on May 28, 1986. On August 14, 1986, Midland mailed the title insurance policy to Shafron. The policy disclosed the following easement: "Easement for pole lines from the J & B Building Co. to the Cleveland Electric Illuminating Company dated December 28, 1960 and recorded in Volume 3914, Page 477 of Summit County Records. Grants right to construct, operate and maintain lines for distribution of electric energy upon, over and across caption premises." (Exhibit "F"). In deposition testimony, Midland assistant manager David Wagner explained that this type of high tension wire utility easement was unusual. When Shafron later applied for a building permit, it was denied because of the utility easement. -3- Shafron sued Katzenmeyer and Midland. In addition to granting summary judgment for Midland, the court ordered Katzenmeyer to refund the purchase price of the property to Shafron in exchange for return of the land. The entry of summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). In reviewing a summary judgment motion, the court must construe the evidence in a light most strongly in favor of the party opposing the motion. Morris v. Ohio Casualty Ins. Co. (1988), 35 Ohio St. 3d 45; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. The party opposing the motion, however, may not rest upon mere allegations but must produce documentary evidence setting forth specific facts that create a genuine issue for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317; Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112. In support of summary judgment Midland asserts Shafron lacked standing to sue since Woodview bought the property. In State, ex rel. Dallman, v. Court of Common Pleas (1973), the supreme court held: "A party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action." Id. at syllabus. See, also, Civ. R. 17. It is undisputed Shafron does business under the name Woodview Development Company, and that Woodview is a fictitious -4- name and not a separate, legal entity. See R.C. 1329.01(C). Furthermore, it was Shafron who retained Midland to conduct the title search and perform the escrow services, and Shafron's name appears on the insurance contract. In light of these facts, we find Shafron had a real interest in the subject matter of the lawsuit and, therefore, standing to sue. Midland also claims that Shafron's failure to join Woodview as an indispensable party supports summary judgment. Civ. R. 19 provides, in pertinent part: "(A) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest, or (3) he has an interest relating to the subject of the action as an assignor, assignee, subrogor, or subrogee. If he has not been so joined, the court shall order that he be made a party upon timely assertion of the defense of failure to join a party as provided in Rule 12(B)(7). ***" We find that, since Woodview is merely a dba for Shafron and not a separate, legal entity, it was not necessary to join Woodview under Civ. R. 19. In challenging the entry of summary judgment, Shafron argues Midland improperly disbursed the escrow funds since the title -5- search revealed a utility easement in apparent contradiction of the terms of the purchase agreement and the deeds. Midland's initial responsibility was to perform a title search and issue a title insurance policy. In Burks v. Louisville Title Ins. Co. (1953), 95 Ohio App. 509, the court expounded upon the concept of title guaranty contracts: "As we understand that concept, it is this: that when one obtains a deed for specific real property, and for a valuable consideration procures a title guaranty that there are no encumbrances on said property, nor adverse claims to or defects in the title to said property, as shown by the records of the county where the property is located, and thereafter a defect adversely affecting the owner's title becomes apparent, which fact is made known to the title insurance company, it is then incumbent upon the company, within the limits of its guaranty, to take the necessary steps to relieve against such defect. Failing so to do, the owner may proceed as for breach of his contract, without first himself attempting to relieve against the effects of the defect." Id. at 512. There is no allegation Midland failed to discover the utility easement in its title search. The insurance policy explicitly sets forth the easement and its terms. Thus, Midland did not breach its duties to Shafron in performing the title search and issuing insurance. Shafron's complaint, rather, goes to Midland's duties as an escrow agent. Shafron argues Midland should not have disbursed the escrow funds to Katzenmeyer once the utility easement was discovered. Shafron claims the easement conflicts with the terms of the deeds and purchase agreement. -6- In Pippin v. Kern-Ward Bldg. Co. (1982), 8 Ohio App. 3d 196, this court discussed the duties of an escrow agent and stated: "An escrow is a matter of agreement between parties, usually evidenced by a writing placed with a third-party depositary providing certain terms and conditions the parties intend to be fulfilled prior to the termination of the escrow. The depositary under an escrow agreement is an agent of both parties, as well as a paid trustee with respect to the purchase money funds placed in his hands. * * * Escrow is controlled by the escrow agreement, placing the deposit beyond the control of the depositor and earmarking the funds to be held in a trust-like arrangement." Id. at 198 (citation omitted). Thus, the escrow agent is obligated to carry out the terms of the agreement and is responsible for damages resulting from a breach of this obligation. Id. See, also, Squire v. Branciforti (1936), 131 Ohio St. 344; Calhoun v. McCullouogh (Apr. 25, 1991), Cuyahoga App. No. 60271, unreported. Shafron failed to attach to its brief opposing summary judg- ment any written escrow agreement detailing Midland's responsibilities. The record also contains no evidence of an oral agreement concerning the terms of escrow. At his deposition, Lawrence Shafron acknowledged that there was no agreement between Shafron Enterprises and Midland whereby Midland was to withhold the escrow funds if an easement were discovered during the title search. (Tr. 29.) Midland also was under no obligation to contact Shafron about such easements. (Tr. 29.) Since Shafron has not demonstrated that Midland breached its duty -7- under the terms of any escrow agreement, the court properly granted summary judgment. Accordingly, the assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. ANN DYKE, P.J., and PATRICIA A. BLACKMON, J., CONCUR ______________________________ ANN McMANAMON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .