1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

JOSEPH D. GORSHA, et al.,

 Plaintiffs, 

 v. 

 

BERNARD E. CLARK, et al.,

 Defendants.

Case No. 2:18-cv-508 

 

Judge Graham 

Magistrate Judge Jolson 

OPINION AND ORDER 

 This matter is before the Court for consideration of cross-motions for summary judgment. 

Defendant Mid Ohio Title Agency, LLC d/b/a Lanco Title Agency (“Lanco”) seeks summary 

judgment on Plaintiffs’ breach of escrow agreement claim, its breach of contract counterclaim 

against Plaintiffs, and Defendants Bernard E. Clark, Alice R. Clark, and Scott Clark’s crossclaim 

for breach of fiduciary duty. (ECF No. 111.) Plaintiffs Joseph D. Gorsha, Nancy Gorsha, Damon 

J. Faldowski, Dianne M. Faldowski, Damon J. Faldowski, II, and Mark R. Faldowski (collectively 

“Plaintiffs”) simultaneously move for summary judgment on their breach of escrow agreement 

claim against Lanco. (ECF No. 109.) For the reasons that follow, Lanco’s motion (ECF No. 111) 

is GRANTED IN PART as it pertains to Defendants Bernard E. Clark, Alice R. Clark, and Scott 

Clark’s breach of fiduciary duty crossclaim and Plaintiffs Nancy Gorsha and Dianne M. 

Faldowski’s breach of escrow agreement claim and DENIED IN PART as it pertains to Plaintiffs 

Joseph D. Gorsha, Damon J. Faldowski, Damon J. Faldowski, II, and Mark R. Faldowski’s breach 

of escrow agreement claim and Lanco’s breach of contract counterclaim against Plaintiffs. For the 

reasons set forth below, Plaintiffs’ motion (ECF No. 109), as it pertains to their breach of escrow 

agreement claim, is DENIED. 
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I. BACKGROUND 

A. Factual Background 

Plaintiffs all reside outside of Ohio, but Plaintiffs Joseph Gorsha, Damon Faldowski, 

Damon Faldowski, II, and Mark Faldowski jointly owned real property in Belmont County, Ohio 

consisting of 37.525 Acres located at 0 Sandy Ridge Road, Barnesville, Ohio, bearing parcel 

number 45.00151.000 (the “Property”). (Compl. ¶¶ 1, 8–11, ECF No. 1 at 2, 4.) Plaintiffs Nancy 

Gorsha and Dianne Faldowski each held a dower interest in the Property. (ECF No. 78-1 at 374; 

Faldowski Dep. 26–27, ECF No. 98 at 886–87.) 

On March 8, 2013, Plaintiffs executed an oil and gas lease for the Property with Rice 

Drilling D, LLC (“Rice Drilling”). (Id. at ¶ 18; ECF No. 1-3 at 21–29.) On May 15, 2013, Plaintiffs 

Joseph Gorsha and Damon Faldowski and Defendants Bernard and Alice Clark entered into a 

contract for the sale, of the surface rights only, of the Property (the “Real Estate Purchase 

Contract”). (Id. at ¶ 2; ECF No. 1-2 at 18–20.) The Real Estate Purchase Contract gave the Clarks 

the option to purchase the Property until June 30, 2013. (Id. at 18.) 

Plaintiffs’ real estate agent, Brian Bauer, recommended Mid Ohio Title Agency, LLC, an 

Ohio limited liability company, d/b/a Lanco Title Agency (“Lanco”) serve as the escrow agent and 

title company for the sale of the Property. (Bauer Dep. 19, ECF No. 105 at 1196.) Plaintiffs and 

Lanco did not have a written escrow agreement. (Stipulations ¶ 16, ECF No. 78-1 at 366.) On 

May 24, 2013, Mr. Bauer sent Lanco a copy of the Real Estate Purchase Contract, which stated, 

“Seller is [r]eserving mineral [r]ights.” (Exs. A and F, ECF No. 78-1 at 369, 377.) Mr. Bauer’s 

May 24, 2013 email attaching the Real Estate Purchase Contract also specified, “The sellers will 

be reserving the mineral rights to this property as well.” (Id. at 369.) 

On May 30, 2013, Lanco’s title report noted the existing oil and gas lease between Plaintiffs 

and Rice Drilling and contained the corresponding memorandum of oil and gas lease filed with 
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the Belmont County Recorder’s Office on April 17, 2013. (J. Clark Dep. 21:1–18, ECF No. 103 at 

1175; Ex. 31, ECF No. 102-1 at 1096.) On June 5, 2013, Mr. Bauer once again urged Lanco to, 

“contact the sellers to discuss the language . . . to use for the mineral reservation on this.” (Id. at 

370.) All of Plaintiffs’ communications for the sale of the Property were made through Damon 

Faldowski (Stipulations ¶ 20, ECF No. 78-1 at 366.). Mr. Faldowski never discussed the mineral 

reservation language with Lanco. (Faldowski Dep. 72, 73, ECF No. 98 at 932–33.) 

When the real estate transaction did not close by June 30, 2013, the parties to the Real 

Estate Purchase Contract orally agreed to extend the closing date. (Gorsha Dep. 24–25, ECF No. 

97 at 763–64; B. Clark Dep. 13, ECF No. 94 at 490.) On August 17, 2013, Mr. Bauer sent another 

email to Lanco, reminding the title agency that Plaintiffs were reserving the mineral rights. (Bauer 

Dep. 20:3-21:4, ECF No. 105 at 1196; Gorsha Dep. Ex. 16, ECF No. 129-1 at 1763.) 

On August 26, 2013, Lanco sent a closing package to Plaintiffs. (J. Clark Aff. ¶ 3, Ex. A, 

ECF No. 111-1 at 1448.) The closing package included a warranty deed conveying the Property 

to Bernard E. Clark, Alice R. Clark, husband and wife and Scott L. Clark (collectively, “the Clark 

Family”) for their joint lives, the remainder to the survivor of them (the “Deed”), Funds 

Disbursement Authorization, Settlement Statement (HUD-1), Addendum to HUD-1 Settlement 

Statement, and Affidavit. (Exs. 1–4, ECF No. 111-1 at 1450–58.) On August 30, 2013, Plaintiffs 

Joseph Gorsha, Damon Faldowski, Damon Faldowski, II, and Mark Faldowski (by power of 

attorney) and the Clark Family signed the Funds Disbursement Authorization and Addendum to 

HUD-1 Settlement Statement. (Id. at 1456–57.) The Funds Disbursement Authorization directed, 

authorized, and instructed Lanco, as the escrow agent, to deposit funds received. (Id. at 1457.) 

On September 4, 2013, Plaintiffs executed the Deed and Plaintiffs Joseph Gorsha, Damon 

Faldowski, Damon Faldowski, II, and Mark Faldowski (by power of attorney) signed the Affidavit. 
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(Id. at 1451, 1458.) The Affidavit did not identify any other person with a right of possession of 

the Property. (Id. at 1458; Stipulations ¶ 14, ECF No. 78-1 at 366.) 

Mr. Jonathan Clark of Lanco recorded the Deed with the Belmont County Recorder’s 

Office on October 4, 2013. (Compl. at Ex. 4, ECF No. 1-5 at 31.) The Deed failed to provide for 

the reservation of the mineral rights. (Compl. at ¶ 30.) Rather, the Deed conveyed all right, title 

and interest in the Property to the Clark Family. (Compl. at Ex. 4, ECF No. 1-5.) On October 11, 

2013, Lanco mailed a copy of the Deed to Mr. Bernard Clark. (Ex. 6, ECF No. 111-1 at 1460.) 

In 2015, oil and gas landman,1 Randy Ketcham, approached the Clark Family about leasing 

the mineral rights to the Property. (Ketcham Aff. ¶ 5, ECF No. 121-1 at 1693.) With Mr. 

Ketcham’s assistance, the Clark Family executed the documentation to lease the mineral rights. 

(Id. at ¶ 10; B. Clark Dep. 34–35, ECF No. 94 at 510–11.) Gulfport Energy later drilled the 

Property and paid the corresponding mineral production royalties to the Clark Family. (Compl. at 

¶¶ 12, 31; ECF No. 109-1 at 1139.) Plaintiffs did not learn that drilling had taken place on the 

Property until February 4, 2018, when they consulted Mr. Bauer prior to the expiration of the Rice 

Drilling oil and gas lease on the Property. (Compl. at ¶ 32.) This action soon followed. 

B. Procedural Background 

On May 22, 2018, Plaintiffs commenced this action setting forth seven causes of action: 1) 

reformation of the deed; 2) breach of contract; 3) disgorgement; 4) unjust enrichment; and 5) 

conversion; 6) legal negligence; and 7) breach of escrow agreement. (Id. at ¶¶ 34–73.) Plaintiffs’ 

seventh cause of action alleges that Lanco breached the parties’ implied escrow agreement by 

 

1

 As an independent contractor oil and gas landman, Mr. Ketcham contacts landowners concerning oil and gas lease 

negotiations and works with mineral company attorneys to prepare and complete legal documentation for mineral 

rights leasing. (Ketcham Aff. ¶ 4, ECF No. 121-1 at 1692.) 
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disbursing funds and recording a deed that did not conform to the terms of the Real Estate Purchase 

Contract. 

On August 21, 2018, Lanco filed its counterclaim against Plaintiffs claiming Plaintiffs 

materially breached the Affidavit executed on September 4, 2013 pursuant to which Plaintiffs 

agreed to indemnify and hold harmless Lanco for factual misstatements in the Affidavit when they 

filed the instant case. (Countercl., ECF No. 28 at 143, 147.) On September 20, 2018, the Clark 

Family filed its amended crossclaim, claiming that as the escrow agent, Lanco owed a fiduciary 

duty to both the buyers and the sellers to follow the agreed terms of the Real Estate Purchase 

Contract, and that Lanco breached its fiduciary duty by failing to ensure that the Deed comported 

with the terms of the Real Estate Purchase Contract. (Am. Crosscl., ECF No. 43 at ¶¶ 4–5, 9.) 

On May 24, 2019, Plaintiffs and Lanco filed cross-motions for summary judgment. (ECF 

Nos. 109 and 111.) The Clark Family does not move for summary judgment on its crossclaim 

against Lanco. Similarly, Plaintiffs do not move for summary judgment on Lanco’s counterclaim 

against them.2

 All of the parties’ respective responses in opposition and reply briefs have been 

filed. Plaintiffs’ and Lanco’s motions are ripe for adjudication. 

II. STANDARD OF REVIEW 

Plaintiffs and Lanco have moved for summary judgment under Federal Rule of Civil 

Procedure 56. Under Rule 56, summary judgment is proper if the evidentiary materials in the 

record show that there is “no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 

 

2

 Plaintiffs indicate that though they have not expressly sought summary judgment on Lanco’s counterclaim against 

them, Lanco’s counterclaim “is the subject of a pending motion for judgment on the pleadings, on which [P]laintiffs 

believe they will prevail, but the very same arguments which [P]laintiffs have advanced against Lanco also serve to 

address Lanco’s counterclaim against [P]laintiffs.” (ECF No. 126 at 1740.) The Court is unable to locate the 

referenced motion for judgment on the pleadings on its docket. 
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465 (6th Cir. 2009). The moving party “always bears the initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions” of the record, “which it 

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). 

A district court considering a motion for summary judgment “must construe the evidence 

and draw all reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 

273, 279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986)). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s 

position will be insufficient; there must be evidence on which the jury could reasonably find for 

the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see Dominguez v. Corr. 

Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). “The central issue is ‘whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.’” Revis, 489 F.3d at 279–80 (quoting Anderson, 477 

U.S. at 251–52). 

There is no obligation to “grant judgment as a matter of law for one side or the other,” 

simply because the parties have filed simultaneous cross-motions for summary judgment. Profit 

Pet v. Arthur Dogswell, LLC, 603 F.3d 308, 312 (6th Cir. 2010) (citing Taft Broad. Co. v. United 

States, 929 F.2d 240, 248 (6th Cir. 1991)). Instead, “a ‘court must evaluate each party’s motion 

on its own merits, taking care in each instance to draw all reasonable inferences against the party 

whose motion is under consideration.’” Id. (quoting Taft, 929 F.2d at 248). Each motion must be 

evaluated under the standard requiring the Court to “view all facts and inferences in the light most 

favorable to the non-moving party.” Travelers Prop Cas. Co. of Am. v. Hillerich & Bradsby Co., 
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Inc., 598 F.3d 257, 264 (6th Cir. 2010) (quoting Beck v. City of Cleveland, Ohio, 390 F.3d 912, 

917 (6th Cir. 2004)). 

III. DISCUSSION 

A. Standing 

As an initial matter, the Court addresses Lanco’s argument that Plaintiffs Nancy Gorsha 

and Dianne Faldowski lack standing to sue Lanco for breach of the escrow agreement. (ECF No. 

111 at 1443.) Lanco reasons that because Mrs. Gorsha and Mrs. Faldowski only held a dower 

interest in the Property, they could not suffer their claimed damages of loss of royalty payments. 

(Id.) As standing to sue is a threshold issue that requires resolution prior to addressing the merits 

of a claim, the Court begins with this issue. Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S. Ct. 

1717, 1722 (1990). 

“Dower is a means of providing the surviving spouse with a source of support when the 

other spouse dies, and Ohio is one of the few states which still retains the concept of dower, albeit 

in an extremely limited form.” Short v. Conn, No. 93CA709, 1994 Ohio App. LEXIS 312, at *7 

(Ct. App. Jan. 25, 1994) (citing State v. Thrower, 81 Ohio App.3d 15, 19, 610 N.E.2d 433 (Ct. 

App. 1991)). In Ohio, the right of dower is “an estate for life [of one spouse] in one third of the 

real property of which the [other spouse] was seized as an estate of inheritance at any time during 

the marriage.” Ohio Rev. Code § 2103.02. Under Ohio law, “dower is a contingent inchoate right 

[which] becomes vested in the surviving spouse only upon the death of the other spouse.” 

Goodman v. Gerstle, 158 Ohio St. 353, 358, 109 N.E.2d 489, 492 (1952). 

Both the Sixth Circuit and this Court have concluded that when property is titled in one 

spouse’s name only, the other spouse’s inchoate dower interest does not confer standing to sue. 

Myers v. Vill. of Alger, 102 F. App’x 931, 933 (6th Cir. 2004) (finding the husband lacked standing 
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to sue because the couple’s property was titled in the wife’s name only); Egnot v. Triad Hunter 

LLC, No. 2:12-cv-1008, 2013 U.S. Dist. LEXIS 141336, at *7–8 (S.D. Ohio Sep. 30, 2013) 

(determining that a husband did not have standing to pursue suit concerning the couple’s property 

when the property was titled in wife’s name only, as he could not recover upon rights not yet lost). 

Here, the undisputed facts show that the Property at issue was titled in Plaintiffs Joseph 

Gorsha and Damon Faldowski’s names, and their spouses, Plaintiffs Nancy Gorsha and Dianne 

Faldowski held only dower interests. Under Ohio law, the dower interests of Mrs. Gorsha and 

Mrs. Faldowski remain inchoate for the remainder of their spouses’ lives. Therefore, the Court 

concludes, as a matter of law, that Plaintiffs Nancy Gorsha and Dianne Faldowski lack standing to 

pursue their breach of escrow agreement claim against Lanco, and summary judgment on their 

claim is warranted. 

B. The Clark Family’s Crossclaim: Breach of Fiduciary Duty 

Lanco also seeks summary judgment in its favor on the Clark Family’s amended crossclaim 

for Lanco’s alleged breach of fiduciary duty. The Clark Family claims that Lanco had a fiduciary 

duty to follow the terms of the Real Estate Purchase Contract by reserving the mineral rights to 

Plaintiffs, and that Lanco failed to do so when it recorded a deed that did not conform to the terms 

of the Real Estate Purchase Contract (Am. Crosscl. ¶¶ 5–9, ECF No. 43 at 244.) The Clark Family 

claims damages, including money spent to defend this lawsuit and any damages it may be ordered 

to pay as a result thereof. (Id. at ¶ 10.) 

A breach of fiduciary duty claim amounts to a negligence claim concerning a higher 

standard of care. Hurst v. Enter. Title Agency, 157 Ohio App. 3d 133, 144-45, 809 N.E.2d 689, 

697 (2004). The party asserting a breach of fiduciary duty claim must establish: 1) the existence 

of a fiduciary duty, 2) a breach of that duty, and 3) an injury resulting therefrom. Id. But “a 
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fundamental principle of the law of all torts is that a legal right must exist and that this right must 

be violated in order to warrant redress.” Strock v. Pressnell, 38 Ohio St. 3d 207, 217, 527 N.E.2d 

1235, 1243 (1988) (emphasis in original). 

Here, under the terms of the Real Estate Purchase Contract, the Clark Family had no legal 

right to the mineral rights. These rights were expressly reserved by Plaintiffs. When the Deed 

failed to reserve the mineral rights to Plaintiffs, the resulting injury was suffered by Plaintiffs, not 

the Clark Family, who in fact benefited from the Deed’s error. 

Lanco argues that the Clark Family’s own actions are the proximate cause of the present 

suit and the Clark Family’s resulting need to defend itself. (ECF No. 111 at 1435.) Though the 

Clark Family places the blame on the “flawed deed” (ECF No. 122 at 1708), Lanco points out that 

the Clark Family had to take affirmative steps to claim the mineral rights it did not contract for 

under the Real Estate Purchase Contract. (Id.) 

The Court agrees. Lanco’s recording of the Deed did not prompt automatic royalty 

payments to the Clark Family. Instead, the undisputed facts demonstrate that the Clark Family 

executed documentation to lease the mineral rights and receive the resulting royalty payments. 

(Ketcham Aff. ¶ 10, ECF No. 121-1 at 1693; B. Clark Dep. 34–35, 40, ECF No. 94 at 510–11, 

517.) Thus, the Clark Family did not suffer injury resulting from Lanco’s alleged breach. Funds 

expended by the Clark Family to defend this lawsuit are the result of the Clark Family’s own 

conduct in actively leasing the mineral rights and accepting the royalties. 

Even viewing the facts in the light most favorable to the Clark Family, there is no light 

sufficient to salvage their crossclaim. The record is bereft of any evidence demonstrating a genuine 

dispute of material fact as to the third element of their breach of fiduciary duty claim, injury 

resulting from Lanco’s recording of a deed that did not adhere to the terms of the Real Estate 
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Purchase Contract. As the Clark Family has failed to make a showing sufficient to establish the 

existence of an element essential to their breach of fiduciary duty crossclaim, Lanco is entitled to 

judgment as a matter of law. 

C. Plaintifffs’ Claim: Breach of the Escrow Agreement 

Plaintiffs move for summary judgment against Lanco, claiming that Lanco breached their 

implied escrow agreement by improperly recording a deed that did not reserve the mineral rights 

to Plaintiffs and disbursing the escrow funds without ensuring that the Deed comported with the 

terms of the Real Estate Purchase Contract. (ECF No. 109-1 at 1344.) Lanco also moves for 

summary judgment on this claim, arguing that: 1) it complied with its obligations under the escrow 

agreement by recording the Deed and disbursing the escrow funds; 2) the Clark’s Family conduct 

in claiming the mineral rights was not reasonably foreseeable to Lanco at the time it entered into 

the escrow agreement; and 3) Plaintiffs waived their breach of escrow agreement claim and are 

estopped from bringing this claim against Lanco. (ECF No. 111 at 1438–42.) 

Under Ohio law, a party asserting a breach of contract claim must establish four elements: 

(1) a binding contract or agreement; (2) the nonbreaching party performed its contractual 

obligations; (3) the other party failed to fulfill its contractual obligations without legal excuse; and 

(4) the nonbreaching party suffered damages as a result of the breach. Carbone v. Nueva Constr. 

Grp., L.L.C., 2017-Ohio-382, ¶ 14, 83 N.E.3d 375, 380 (Ct. App.) 

1. The Terms and Obligations of the Escrow Agreement 

The parties do not dispute the existence of an implied escrow agreement between Plaintiffs 

Joseph Gorsha, Damon Faldowski, Damon Faldowski, II, and Mark Faldowski and Lanco. 

(Countercl. ¶ 1, ECF No. 28 at 142; ECF No. 119 at 1643.) Rather, Plaintiffs and Lanco dispute 

the terms and obligations of their escrow agreement and whether Lanco complied with those terms 
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and obligations. While Lanco admits that many escrow agreements obligate the escrow agent to 

ensure the terms of the purchase contract are fulfilled, Lanco claims Plaintiffs have not shown that 

such a reservation-of-rights term was a part of the parties’ escrow agreement. (ECF No. 117 at 

1607.) 

Lanco claims that since the Real Estate Purchase Contract expired on June 30, 2013 and 

was not modified, pursuant to its terms, by a signed writing, Lanco did not have to comply with 

its terms and instead relied on the conduct and representations of Plaintiffs and the Clark Family. 

(ECF No. 111 at 1443.) Lanco states that neither Plaintiffs nor the Clark Family informed Lanco 

of the terms of the escrow agreement or instructed the title agency to prepare a deed reserving the 

mineral rights to Plaintiffs. (ECF No. 117 at 1606–07.) According to Lanco, it complied with its 

obligations under the escrow agreement by recording the Deed and disbursing the escrow funds 

upon receipt of the Plaintiffs’ executed closing documents. 

Plaintiffs counter that Plaintiffs and the Clark Family waived the Real Estate Purchase 

Contract’s written modification requirement and modified the closing date through their actions. 

(ECF No. 126 at 1739.) Ohio case law supports Plaintiffs’ contention, because “[a] party may 

waive a written contract term by affirmative actions to that end.” White Co. v. Canton 

Transportation Co. (1936), 131 Ohio St. 190; BancOhio Natl. Bank v. Abbey (1984), 13 Ohio App. 

3d 446; Pekarek v. Broadway Realty P'ship, No. 58626, 1991 Ohio App. LEXIS 2564, at *9 (Ct. 

App. May 30, 1991). Plaintiffs insist that the parties to the Real Estate Purchase Contract intended 

for the other previously agreed upon terms to remain the same. (ECF No. 126 at 1739.) 

Significantly, Plaintiffs’ real estate agent, Brian Bauer, emailed Lanco on August 17, 2013, 

well after June 30, 2013 and nine days before Lanco mailed the closing documents, reminding 

Lanco that Plaintiffs were reserving the mineral rights. (Bauer Dep. 20:3-21:4, ECF No. 105 at 
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1196; Gorsha Dep. Ex. 16, ECF No. 129-1 at 1763.) Other record evidence also reinforces 

Plaintiffs’ assertion. After the contract’s oral extension, Bernard and Alice Clark paid the 

previously agreed upon purchase price of $75,050.00 for the surface rights only (Compl. ¶ 26, ECF 

No. 1 at 6; ECF No. 112 at 1501), and the property conveyed to them was the same parcel number 

identified in the Real Estate Purchase Contract (ECF No. 78-1 at 373). 

2. The Clark Family’s Leasing of the Mineral Rights 

Lanco declares that while “a contracting party is generally expected to take account of 

those risks that are foreseeable at the time [of] contract,” it cannot be held liable for Plaintiffs’ loss 

of mineral rights, as it did not reasonably foresee that such a loss would occur at the time it entered 

into the escrow agreement with Plaintiffs. (ECF No. 117 at 1608) (quoting Trucco Constr. Co., 

Inc. v. Columbus, 2006-Ohio-6984, ¶ 43 (Ct. App.)). Specifically, Lanco argues that it, “had no 

way of knowing that the Clark Family would conspire with Randy Ketchum [sic] to take mineral 

rights that the Clark Family apparently knew belonged to Plaintiffs.” (Id. at 1609.) 

As previously outlined by this Court, “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.” (Op. & Order, ECF No. 82 at 398) (quoting Saad v. 

Rodriguez, 30 Ohio App. 3d 156, 158, 506 N.E.2d 1230, 1233 (1986)). Lanco acknowledges this 

function by admitting that many escrow agreements obligate the escrow agent to ensure the terms 

of the purchase contract are fulfilled. Therefore, upon entering into an escrow agreement with 

Plaintiffs, Lanco had an obligation to record a deed that complied with the terms of the purchase 

agreement. 

The Real Estate Purchase Contract contained a reservation-of-mineral-rights term. It is 

undisputed that by failing to reserve the mineral rights to Plaintiffs, Lanco recorded a deed that did 
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not meet the conditions of the Real Estate Purchase Contract. A reasonable factfinder could find 

that a foreseeable risk of Lanco’s failure to reserve the rights to Plaintiffs was that the buyers 

would later attempt to claim or benefit from these rights. In other words, it follows that by 

recording a deed conveying all right, title and interest in the Property to the Clark Family, it was 

reasonably foreseeable that the Clark Family would later claim the mineral rights to the Property. 

Therefore, Lanco’s attempt to dodge liability under its “the Clark Family’s tortious conduct was 

not reasonably foreseeable” theory bears no fruit and does not warrant granting summary judgment 

to Lanco. 

3. Waiver and Estoppel 

Lanco asserts the defensive theories of equitable estoppel and waiver by estoppel. 

“Equitable estoppel prevents relief when one party induces another to believe facts exist and the 

other party changes his position in reasonable reliance on those facts to his detriment.” Doe v. 

Archdiocese of Cincinnati, 116 Ohio St. 3d 538, 539, 880 N.E.2d 892, 894–95 (2008) (internal 

quotation marks and citations omitted). Waiver by estoppel “‘exists when the acts and conduct of 

a party are inconsistent with an intent to claim a right, and have been such as to mislead the other 

party to his prejudice and thereby estop the party having the right from insisting upon it.’” Nat’l 

City Bank v. Rini, 162 Ohio App. 3d 662, 668, 834 N.E.2d 836, 840 (2005) (quoting Mark-It Place 

Foods, Inc. v. New Plan Excel Realty Tr., Inc., 156 Ohio App. 3d 65, 92–93, 804 N.E.2d 979, 1000 

(2004)). 

With respect to both defenses, Lanco argues that Plaintiffs’ execution of the Deed without 

raising any objections led Lanco to believe that Plaintiffs were accepting the Deed just as Lanco 

had prepared it. Lanco claims that Plaintiffs had an obligation to review the Deed for inaccuracies 

and that their execution of the closing documents without “asking any questions or raising any 
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concerns to Lanco would indicate to a reasonably prudent escrow agent that Plaintiffs approved 

the closing documents and wished the escrow agent to record the deed and disburse the escrow 

funds.” (ECF No. 117 at 1612.) In sum, Lanco maintains that Plaintiff’s acceptance of the Deed 

induced or misled Lanco to proceed with the closing and that Plaintiffs cannot, years later, make 

the inconsistent claim that Lanco acted improperly in preparing the Deed. 

The Court finds that Lanco is not entitled to summary judgment on its estoppel defenses. 

There are genuine disputes of material fact concerning whether Plaintiffs induced or misled Lanco 

and whether Lanco reasonably relied on Plaintiffs’ conduct to its detriment or prejudice. Plaintiffs 

have produced evidence from which a reasonable factfinder could conclude that they, rather than 

inducing or misleading Lanco, clearly communicated their intentions to reserve the mineral rights 

when their real estate agent not only provided the Real Estate Purchase Contract to Lanco but also 

emailed Lanco on three separate occasions to reiterate that Plaintiffs wished to reserve their 

mineral rights. Further, a factfinder could find that Plaintiffs executed the Deed without rigorous 

review or raising concerns because they were reasonably relying on the attorney who prepared it 

to have done so correctly. Finally, a factfinder could determine that Lanco, whose owner Jonathan 

Clark is also the attorney who prepared the Deed, did not rely to its detriment, or at least not 

reasonably, on Plaintiffs’ execution of the Deed as representing their tacit approval of the Deed’s 

failure to reserve the mineral rights. 

Accordingly, the Court denies the parties’ cross-motions for summary judgment on the 

breach of escrow agreement claim. 

D. Lanco’s Counterclaim: Breach of Contract 

Lanco moves for summary judgment on its breach of contract counterclaim against 

Plaintiffs, claiming that Plaintiffs Joseph Gorsha, Damon Faldowski, Damon Faldowski, II, and 
15 

Mark Faldowski breached their agreement to indemnify and hold Lanco harmless for any damages 

resulting from Plaintiffs’ inaccurate statements on the Affidavit signed September 4, 2013 by 

bringing suit against Lanco for recording a deed that did not retain the mineral rights to Plaintiffs. 

(ECF No. 111 at 1444.) In essence, Lanco once again shifts the blame for the Deed’s error to 

Plaintiffs by insisting it was Plaintiffs’ failure to disclose the existing Rice Drilling oil and gas 

lease that resulted in the erroneous deed, and Lanco should be held harmless for Plaintiffs’ factual 

misstatement. This argument is not well taken. 

As Plaintiffs point out, Lanco’s May 30, 2013 title report noted the existing oil and gas 

lease between Plaintiffs and Rice Drilling and contained the corresponding memorandum of oil 

and gas lease filed with the Belmont County Recorder’s Office on April 17, 2013. (ECF No. 119 

at 1653.) Not only was Lanco aware of the Rice Drilling oil and gas lease months before sending 

the closing documents on August 26, 2013, but whether Plaintiffs had an existing oil and gas lease 

on the Property is immaterial. The record evidence overwhelmingly demonstrates that Plaintiffs 

and the Clark Family intended for Plaintiffs to retain the mineral rights to the Property, regardless 

of whether Plaintiffs entered into an oil and gas lease before or after the conveyance of the surface 

rights to the Clark Family. Moreover, Plaintiffs’ real estate agent emailed Lanco three times to 

emphasize that it was Plaintiffs’ intent to reserve the mineral rights. 

Construing the evidence in the light most favorable to Plaintiffs, the Court finds that 

genuine disputes of material fact remain concerning whether Plaintiffs breached the 

indemnification agreement contained in the Affidavit, and Lanco is denied summary judgment on 

its breach of contract counterclaim.

IV. CONCLUSION

For the foregoing reasons, the Motion of Defendant Mid Ohio Title Agency, LLC d/b/a 

Lanco Title Agency for Summary Judgment is (ECF No. 111) is GRANTED IN PART as it 
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pertains to Defendants Bernard E. Clark, Alice R. Clark, and Scott Clark’s breach of fiduciary duty 

crossclaim and Plaintiffs Nancy Gorsha and Dianne M. Faldowski’s breach of escrow agreement 

claim and DENIED IN PART as it pertains to Plaintiffs Joseph D. Gorsha, Damon J. Faldowski, 

Damon J. Faldowski, II, and Mark R. Faldowski’s breach of escrow agreement claim and Lanco’s 

breach of contract counterclaim against Plaintiffs. Consequently, Plaintiffs Nancy Gorsha and 

Dianne M. Faldowski’s breach of escrow agreement claim against Lanco is DISMISSED WITH 

PREJUDICE, and the Clark Family’s amended crossclaim against Lanco for breach of fiduciary 

duty is DISMISSED WITH PREJUDICE. Furthermore, the Motion of Defendant Mid Ohio 

Title Agency, LLC d/b/a Lanco Title Agency to Dismiss First Amended Crossclaim of Bernard E. 

Clark, Alice R. Clark, and Scott Clark (ECF No. 52) is hereby DENIED as moot. 

Plaintiffs’ Motion for Summary Judgment (ECF No. 109), as it pertains to their breach of 

escrow agreement claim against Lanco is also DENIED. 

IT IS SO ORDERED. 

 /s/ James L. Graham 

 JAMES L. GRAHAM 

 United States District Judge 

DATE: October 4, 2019