[Cite as Danziger & De Llano, L.L.P. v. Morgan Verkamp, L.L.C., 2023-Ohio-1728.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DANZIGER & DE LLANO, LLP, : APPEAL NO. C-220478 TRIAL NO. A-2201568 Plaintiff-Appellant, : O P I N I O N. vs. :
MORGAN VERKAMP, LLC, :
FREDERICK M. MORGAN, JR., :
and :
JENNIFER M. VERKAMP, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 24. 2023
Strauss Troy Co., LPA, and Robert R. Sparks, for Plaintiff-Appellant,
Montgomery Jonson LLP, George D. Jonson and G. Todd Hoffpauir, for Defendants- Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} This case marks the third attempt in as many jurisdictions by plaintiff-
appellant Danziger & De Llano, LLP, (“D&D”) to recover a share of legal fees for a
client it did not actually represent. After unsuccessfully suing in the federal courts of
Pennsylvania and Texas, D&D sued both the law firm that did represent the client—
Morgan Verkamp, LLC,—and its two principals, Frederick Morgan and Jennifer
Verkamp (collectively “Morgan Verkamp”), in the Hamilton County Court of Common
Pleas. See Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124 (3d
Cir.2020); Danziger & De Llano, L.L.P. v. Morgan Verkamp, L.L.C., 24 F.4th 491 (5th
Cir.2022). Its claims included breach of contract, breach of contract implied in fact,
unjust enrichment, quantum meruit, promissory estoppel, and fraudulent
concealment.
{¶2} Raising arguments that D&D’s claims were barred by the applicable
statutes of limitations and the applicable professional conduct rules, Morgan Verkamp
moved to dismiss the complaint under Civ.R. 12(B)(6). The trial court granted Morgan
Verkamp’s motion and dismissed the action. In a single assignment of error, D&D
argues that the trial court erred in dismissing its complaint.
{¶3} For the reasons that follow, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶4} Danziger & De Llano, LLP, is a law firm located in Texas that frequently
represents clients in whistleblower cases. D&D and Rod De Llano, one of its
principals, have a history of referring a specialized type of whistleblower cases known
as qui tam actions to Frederick Morgan and Jennifer Verkamp. When the referral
relationship began, Morgan and Verkamp were working at Volkema Thomas, an Ohio
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law firm. Later, they left that firm to open their own law practice known as Morgan
Verkamp. This dispute concerns a client, Michael Epp, whom D&D referred to Morgan
and Verkamp when they were attorneys at Volkema Thomas and whom Morgan
Verkamp later successfully represented in a federal qui tam action in Pennsylvania.
{¶5} D&D’s relationship with Morgan and Verkamp began in 2006, when
D&D referred a different client in a potential qui tam action, Stacy Vanderslice, to
Volkema Thomas. Morgan, Verkamp, and D&D then entered into a written fee
agreement with Stacy Vanderslice. The agreement provided that Vanderslice would
share 40 percent of any recovery obtained on her behalf with this team of attorneys.
The attorneys agreed to allocate their share of the contingent fee by giving 33 percent
to Volkema Thomas, 33 percent to D&D, and the remaining 34 percent in proportion
to the hours spent on representation of Vanderslice by each firm.
{¶6} Also in 2006, D&D referred Donald Galmines, another potential qui
tam relator, to Morgan. Galmines entered into a fee agreement with Volkema Thomas
and D&D that was identical to the agreement used in the Vanderslice action.
{¶7} In April of 2007, Epp contacted D&D about his potential claim. Acting
on behalf of D&D, De Llano responded via email to Epp stating that D&D was
interested in discussing the matter further and explaining that it would be partnering
with Volkema Thomas in the investigation and, if warranted, prosecution of the case.
D&D also contacted Morgan regarding the Epp action.
{¶8} On April 19, 2007, De Llano, Morgan, Verkamp, and Epp participated
in a conference call to discuss Epp’s case. On April 23, 2017, Epp emailed D&D and
Morgan with a question about how their legal fees would be paid. Morgan responded
to Epp, informing him that the attorneys would not be paid if Epp did not obtain a
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recovery. Morgan also informed Epp that, if a recovery was obtained, the attorney’s
contingent share would be disbursed from the proceeds.
{¶9} On May 21, 2007, Epp, De Llano, and Morgan participated in another
conference call to discuss a draft of Epp’s complaint and the parties’ fee agreement.
On May 30, 2007, in response to a request from Epp, Morgan sent Epp a draft fee
agreement that was similar in its structure, but not the amount of fees to be paid, to
the fee agreement used in the Vanderslice and Galmines actions. Morgan informed
Epp that the draft agreement “does not include the details of the relationship between
[De Llano’s] and our firms, which will also be subject to your approval.” The draft fee
agreement that was sent to Epp provided that:
Each law firm has agreed to divide any recovery of attorney’s fees
generated from the contingent portion of the relators’ share of any
award (as described above) in the following manner:
___ percent (%) of the fees generated by the contingent portion of the
relators’ of any recovery shall be paid to Volkema Thomas, LPA.
___ percent (%) of the fees generated by the contingent portion of the
relators’ of any recovery shall be paid to Danziger & De Llano, P.C.
{¶10} The numerical amount of the percentage that each party was to recover
was left blank. No other provision in the draft agreement described the work to be
performed by D&D and Morgan Verkamp or how the firms would share fees or
responsibility for Epp’s case. On June 4, 2007, in response to questions from Epp
about this draft agreement, Morgan wrote a letter clarifying that the contingency fee
to be charged would be 40 percent of the amount the client recovered as well as
attorneys’ fees for attorney time and billable staff. On June 13, 2007, Epp responded
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with questions unrelated to the fee agreement. After those questions, neither party
heard any further from Epp for a period of time.
{¶11} In September of 2007, Epp reinitiated contact with De Llano and
Morgan and expressed interest in proceeding with the case. However, Epp again
ceased communication shortly thereafter.
{¶12} In January of 2008, Morgan and Verkamp left Volkema Thomas and
established a new firm, Morgan Verkamp, LLC. Morgan and Verkamp entered into a
separation agreement with Volkema Thomas in which they assumed responsibility for
the Vanderslice, Galmines, and Epp cases and agreed to reimburse Volkema Thomas
for case expenses.
{¶13} On January 13, 2008, Morgan emailed Epp and De Llano to advise them
that he and Verkamp had started their own firm. The email additionally informed Epp
that “As I am no longer affiliated with Volkema Thomas, the draft contract I sent you
several months ago is no longer relevant. Let Rod [De Llano] and me know if we can
be of further service.” Epp responded to Morgan and De Llano, asking, “[A]re you
interested to take over the case on the same basis as Volkema Thomas?”
{¶14} Morgan answered Epp, communicating that “Michael, we’re doing the
same work in the same place, and definitely remain interested in your case. The terms
were ours to begin with, so while we would need to reacquaint ourselves with the case
and still would need to obtain the rest of your materials for review, if we were to handle
the case we would do it on the same terms.”
{¶15} After this exchange of emails, D&D never heard from Epp again. D&D
and Morgan Verkamp continued to work together on the Vanderslice and Galmines
cases. In January of 2010, De Llano saw a press release regarding a qui tam action
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that seemed to be similar to Epp’s action, and he emailed Morgan inquiring whether
the press release was referring to the Epp case. Morgan responded in the negative.
{¶16} In March 2010, Morgan Verkamp brought suit on Epp’s behalf in the
Pennsylvania federal court. More than four years after the suit was filed, the United
States government intervened and settled the suit for millions of dollars, resulting in
several millions in legal fees for Morgan Verkamp. See Danziger & De Llano, 948 F.3d
at 128.
{¶17} In October of 2016, D&D learned about Epp’s lawsuit, the settlement,
and Morgan Verkamp’s fee award. Believing that it was entitled to a share of the
recovery in that action, D&D filed a discovery action in 2016, and then a complaint in
2018, against Morgan Verkamp in Pennsylvania state court. Id. Morgan Verkamp
removed the case to federal court, where they filed a motion to dismiss the action. Id.
The motion to dismiss was granted by the United States District Court for the Eastern
District of Pennsylvania, and the Third Circuit Court of Appeals affirmed that
dismissal. Id. at 128, 133.
{¶18} D&D subsequently filed a complaint against Morgan Verkamp in federal
court in the Southern District of Texas. Morgan Verkamp again filed a motion to
dismiss. Danziger & De Llano, 24 F.4th at 494. The motion to dismiss was granted,
and that dismissal was affirmed on appeal by the Fifth Circuit Court of Appeals. Id.
{¶19} On May 2, 2022, D&D filed the complaint in this case. The complaint
contained claims for breach of contract, breach of contract implied in fact, unjust
enrichment, quantum meruit, promissory estoppel, and fraudulent concealment. It
alleged that Morgan Verkamp had willfully deceived D&D by representing Epp in the
action that D&D had initially referred years earlier.
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{¶20} The complaint described a number of communications involving
Morgan Verkamp, D&D, and Epp. For one, Morgan Verkamp resumed
communication by email with Epp in 2010 regarding his claim without including D&D.
This was the case even though Morgan told Epp in his January 2008 email that his
new firm would take over the case on the same basis as had previously been arranged
with Volkema Thomas. The complaint also referenced an email that Morgan sent to
Epp in February of 2010 transmitting a draft fee contract. In that email, Morgan
informed Epp that “I have not included Rod DeLlano [sic] on this contract, as we have
not discussed whether you wish to retain his firm as well as ours. If you wish me to
reach out to Rod to see if he wishes to participate, I will do so. Otherwise, I will work
with him once the case evolves to ensure that he is reasonably compensated for the
work he did for you in 2007.”
{¶21} The complaint further alleged that Morgan never reached out to De
Llano or ensured that he was reasonably compensated for his earlier work and that
Morgan Verkamp fraudulently concealed their representation of Epp while continuing
to work together with D&D on the Vanderslice and Galmines cases during the
pendency of the Epp litigation.
{¶22} According to the complaint, Morgan Verkamp filed suit on behalf of Epp
in a qui tam action in March of 2010 in the Eastern District of Pennsylvania and
ultimately received a contingency share of the award that Epp had obtained in excess
of five million dollars. D&D asserted it was entitled to approximately $2,133,333 in
fees for its referral of Epp.
{¶23} Morgan Verkamp filed a Civ.R. 12(B)(6) motion to dismiss D&D’s
complaint. In support of the motion, Morgan Verkamp argued that the claims asserted
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in the complaint were barred by the applicable statutes of limitations, D&D’s claims
were substantially flawed, the equitable claims were barred by laches, the Ohio and
Texas Rules of Professional Conduct barred D&D’s claims, and fee disputes between
lawyers in different law firms cannot be litigated in court in Ohio.
{¶24} The trial court issued an entry granting the motion to dismiss. The entry
stated that the motion was well taken, but it did not set forth the basis on which
dismissal was granted.
Standard of Review
{¶25} We review a trial court’s ruling on a Civ.R. 12(B)(6) motion to dismiss
de novo. Plush v. Cincinnati, 2020-Ohio-6713, 164 N.E.3d 1056, ¶ 12 (1st Dist.). A
Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be
granted tests the sufficiency of the complaint. Thomas v. Othman, 2017-Ohio-8449,
99 N.E.3d 1189, ¶ 18 (1st Dist.). When ruling on such a motion, the trial court is
confined to the allegations in the complaint, must accept all the allegations as true,
and must draw all reasonable inferences in favor of the nonmoving party. Plush at ¶
12. A Civ.R. 12(B)(6) motion to dismiss should only be granted if it “appear[s] beyond
a doubt from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.” Id., quoting O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242, 327 N.E.2d 753 (1975), syllabus.
{¶26} The parties raise statute-of-limitations arguments in this appeal.
Because a statute-of-limitations defense typically requires reference to materials
outside the complaint, it is not generally properly raised in a Civ.R. 12(B)(6) motion.
Lyons v. Kindell, 2015-Ohio-1709, 35 N.E.3d 7, ¶ 30 (1st Dist.). “But a Civ.R. 12(B)(6)
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motion may be granted on statute-of-limitations grounds when the complaint on its
face conclusively indicates that the action is time-barred.” Id.
Civ.R. 12(B)(6) Analysis
{¶27} In a single assignment of error, D&D argues that the trial court erred in
granting the motion to dismiss. It contends that each claim asserted in the complaint
was filed within the applicable limitations period. We discuss each claim in turn.
1. Breach of Contract
{¶28} With respect to the claim for breach of contract, D&D’s complaint
alleged that the parties’ oral and written communications, along with their
longstanding course of conduct, resulted in an enforceable agreement. The complaint
specifically asserted that:
The parties’ written agreements, acts, and years-long course of dealing
establish that their agreement included: (1) that Plaintiff and Defendant
would work together on qui tam cases; (2) that Plaintiff would refer qui
tam Relators to Defendants and, if litigation resulted from the referral,
Plaintiff would be involved in such litigation as co-counsel; (3) that
Plaintiff and Defendants would make full disclosure of all relevant facts
to their clients or prospective clients and also make full disclosure of all
relevant facts to each other; (4) that they would divide attorney fees with
one-third to Plaintiff, one-third to Defendants, and one-third divided
based upon time expended in the matter; and, (5) that Plaintiff and
Defendants would act in accordance with the ethical requirements of the
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legal profession and would not actively conceal relevant facts from each
other.
{¶29} To establish a claim for breach of contract, a plaintiff must show the
existence of a contract, performance by the plaintiff, breach by the defendant, and a
resulting damage or loss to the plaintiff. White v. Pitman, 2020-Ohio-3957, 156
N.E.3d 1026, ¶ 37 (1st Dist.).
{¶30} D&D argues that Morgan Verkamp improperly attempted to
characterize their breach of contract claim below as a claim for a breach of an oral
contract, when the complaint, in fact, alleged a claim for breach of a written contract.
D&D further argues that, regardless of whether the claim was for breach of an oral or
written contract, the claim was filed within the applicable limitations period. We need
not reach the issue of whether the claim was filed within the relevant statute of
limitations, as we find that the complaint fails to allege the existence of a contract,
either written or oral.1
{¶31} In order for a contract to exist, there generally must be an offer,
acceptance, and consideration. N. Side Bank & Trust Co. v. Trinity Aviation LLC,
2020-Ohio-1470, 153 N.E.3d 889, ¶ 15 (1st Dist.). The alleged contract must also
reflect the essential terms with definiteness and certainty, as there must be a meeting
of the minds as to all essential terms. Id.; Episcopal Retirement Homes, Inc. v. Ohio
Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). To reflect a
meeting of the minds, all parties to an agreement must mutually assent to the
1On appeal, D&D argues that the contract it seeks to enforce existed solely between it and Morgan Verkamp. However, the complaint appears to describe a three-party agreement between Epp, D&D, and Morgan Verkamp, and it was this alleged contract that the trial court reviewed in granting the motion to dismiss. We limit our review to the alleged three-party contract described in the complaint, given that Civ.R. 12(B)(6) tests the sufficiency of the complaint, which did not include any purported agreement that existed solely between D&D and Morgan Verkamp.
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substance of the contract. Jackson Tube Serv. v. Camaco LLC, 2d Dist. Miami Nos.
2012 CA 19 and 2012 CA 25, 2013-Ohio-2344, ¶ 11, citing Zelina v. Hillyer, 165 Ohio
App.3d 255, 2005-Ohio-5803, 846 N.E.2d 68, ¶ 12 (9th Dist.) (stating that a meeting
of the minds occurs if “a reasonable person would find that the parties manifested a
present intention to be bound to an agreement”). The parties must have a distinct and
common intention that is communicated by each party to the other. Id.,
citing McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc., 87
Ohio App.3d 613, 620, 622 N.E.2d 1093 (8th Dist.1993).
A. The Draft Agreement and Related Emails Were Not Specific Enough to Constitute a Valid Offer
{¶32} D&D’s complaint was less than precise in its basis for arguing the
existence of a written contract. However, D&D appears to rely upon the draft
agreement that Morgan sent to Epp in May of 2007 and the emails that both
accompanied and came after its circulation to suggest that a written contract existed.
We consider at the outset whether the draft agreement and Morgan’s emails constitute
a valid offer to contract. An offer must be specific enough to form the basis for a
meeting of the minds. Callander v. Callander, 10th Dist. Franklin No. 07AP-746,
2008-Ohio-2305, ¶ 14.
{¶33} Under this standard, the draft agreement and Morgan’s emails to Epp
were insufficient to constitute a valid offer to contract because they expressly omitted
key terms regarding D&D’s role. First, the document failed to include the percentages
of the contingent fee that each party would receive, prohibiting an adequate meeting
of the minds regarding the consideration to be paid or the relationship between the
two law firms. Morgan’s email to Epp specifically noted as much, highlighting that the
11 OHIO FIRST DISTRICT COURT OF APPEALS
draft agreement “does not include the details of the relationship between [De Llano’s]
and our firms, which will also be subject to your approval.” Morgan’s June 4, 2007
letter to Epp did not shed sufficient light on the matter, as it only clarified that the
contingency fee would be set at 40 percent, but did not describe how that fee would be
divided between the firms.
{¶34} The complaint also references an email from Epp inquiring as to
whether Morgan, at his new firm, would take over the case on the same terms that
Volkema Thomas had agreed to, as well as an email from Morgan stating that “if we
were to handle the case we would do it on the same terms.” But Morgan’s email failed
to set forth the referenced terms or to clarify the previously-omitted provisions
regarding D&D’s role and responsibility. As a result, Morgan’s later email suffered
from the same lack of specificity as the initial draft agreement.
{¶35} The complaint additionally asserts that Morgan sent another draft fee
contract to Epp in February of 2010. But D&D was not included in that contract at all,
which proposed an agreement solely between Epp and Morgan Verkamp. Thus, the
February 2010 email cannot possibly form the basis of an offer to contract between
Morgan Verkamp and D&D.
{¶36} Even accepting all allegations in the complaint as true and construing
all inferences in D&D’s favor, the writings referenced in the complaint simply fail to
set forth a specific offer to contract between Morgan Verkamp and D&D to jointly
represent Epp and share a contingent fee of any recovery obtained from that
representation. Absent such an offer, we cannot find a valid written contract to enforce
in this case.
12 OHIO FIRST DISTRICT COURT OF APPEALS
B. The Offer Was Withdrawn Before It Was Accepted
{¶37} Even if we were to find that the draft agreement and Morgan’s emails
about the draft agreement constituted a specific offer, a further problem with D&D’s
argument is that Morgan withdrew the offer prior to acceptance by either Epp or D&D.
Under “traditional contract principles * * * an offer may be withdrawn at
any time before it is accepted.” Ohio Title Corp. v. Pingue, 10th Dist. Franklin No.
10AP-1010, 2012-Ohio-1370, ¶ 48.
{¶38} After Morgan sent Epp the draft agreement and clarified the overall
contingency fee amount, the attorneys lost contact with Epp. He never agreed to the
arrangement or otherwise assented to the proposed contract. Importantly, neither did
D&D. Thus, even were we to interpret the draft agreement and related emails as an
offer, there was no acceptance by the other parties to the contract—Epp and D&D.
{¶39} When Morgan left Volkema Thomas, he then emailed Epp to inform
him of Morgan and Verkamp’s new firm. In that email, Morgan told Epp that, as a
result of the principals’ change in firms, “the draft contract I sent you several months
ago is no longer relevant.” This statement revoked any previous offer by Morgan
Verkamp to represent Epp in conjunction with D&D. Since the previous offer had not
been accepted at that point, the offer could be freely revoked, which it was. See id.
{¶40} Morgan subsequently emailed Epp to suggest that Morgan Verkamp
would be willing to represent him “on the same terms” as the previous draft offer.
However, for the reasons already discussed, those terms were not sufficiently specific
to allow a meeting of the minds with regard to D&D’s role. Moreover, no party—not
D&D or Epp—followed up on Morgan’s suggestion of negotiating the prior draft
13 OHIO FIRST DISTRICT COURT OF APPEALS
agreement. As a result, we find no offer and acceptance between D&D and Morgan
Verkamp sufficient to form a written contract.
{¶41} While D&D argues that the parties’ representation of Epp was to be
undertaken with the same terms present in the Vanderslice and Galmines actions, the
complaint fails to delineate any writing, or combination of writings, that sets forth
those terms with respect to Epp and establishes an acceptance by Epp of those terms.
We therefore hold that the complaint failed to establish the existence of an enforceable
written contract and that the trial court did not err in dismissing this claim under
Civ.R. 12(B)(6).
C. The Complaint Did Not Describe an Oral Contract
{¶42} In addition to suing for breach of a written contract, D&D also advances
a breach of contract theory premised on the existence of an oral contract.
An oral agreement may be enforceable provided there is sufficient particularity to
form a binding contract. Kodu v. Medarametla, 1st Dist. Hamilton No. C-160319,
2016-Ohio-8020, ¶ 9. The complaint, however, fails to identify the existence of any
oral agreement between the parties regarding Epp’s representation and touches only
on the written communication alleged to form a contract in this case.
{¶43} Because, even accepting all allegations in the complaint as true, the
complaint failed to establish the existence of an oral contract, it failed to state a claim
upon which relief could be granted, and the trial court did not err in dismissing D&D’s
claim for breach of an oral contract.
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2. Breach of a Contract Implied in Fact
{¶44} In addition to its claims for breach of written and oral contracts, D&D
also alleges a breach of a contract implied in fact. The complaint contains the same
allegations in support of this claim as it does for the breach of contract claim. As with
the claim for breach of contract, we do not need to consider whether this claim was
filed within the applicable limitations period because we find that the complaint fails
to establish the existence of a contract implied in fact.
{¶45} As this court has recognized, “an implied-in-fact contract contains no
express provision defining its terms.” Deffren v. Johnson, 2021-Ohio-817, 169 N.E.3d
270, ¶ 17 (1st Dist.). Rather, “the court must construe the facts and circumstances
surrounding the offer and acceptance to determine the terms of the agreement.” Id.,
quoting Linder v. Am. Natl. Ins. Co., 155 Ohio App.3d 30, 2003-Ohio-5394, 798
N.E.2d 1190, ¶ 18 (1st Dist.). A contract that is implied in fact “hinges upon proof of
all of the elements of a contract.” Akron v. Baum, 9th Dist. Summit No. 29882, 2021-
Ohio-4150, ¶ 15. In fact, “[t]he only difference between an express contract and a
contract implied in fact is one of proof. The former is proved by words, the latter by
acts, conduct, and circumstances.” J.S. Keate & Co. v. Barnett’s Car Wash, 1st Dist.
Hamilton No. C-920895, 1994 Ohio App. LEXIS 100, 10 (Jan. 19, 1994).
{¶46} Again, accepting all allegations in the complaint as true and construing
all inferences in the favor of D&D, we hold that the complaint in this case fails to
establish the existence of a valid contract implied in fact. To begin, D&D argues that
its prior course of conduct in referring Vanderslice and Galmines to Morgan Verkamp
and receiving a fee award for doing so establishes a contract with respect to Epp. We
disagree. The fact that two other clients agreed to a shared fee arrangement between
15 OHIO FIRST DISTRICT COURT OF APPEALS
D&D and Morgan Verkamp in their cases does not imply that all clients referred by
D&D will automatically do so. In fact, the existence of blank lines in the draft fee
agreement for the percentages of the contingency to be apportioned to each firm
suggests an expectation that the attorneys will negotiate a personalized agreement
with each client. The back-and-forth emails between Morgan and Epp and the absence
of specifics with regard to D&D’s role only confirm the lack of an implied contract
between Morgan Verkamp and D&D as to fee splitting.
{¶47} Moreover, even if the allegations in the complaint concerning the
parties’ actions and the surrounding circumstances could be used to establish the
terms of a contract, and we do not hold that they do, they do not establish that Epp
accepted any offer of a fee agreement containing those terms from both Morgan
Verkamp and D&D. Because the alleged contract concerned the joint legal
representation of Epp and included a contingency fee, it could not take effect without
Epp’s approval. See Prof.Cond.R. 1.5(c)(1). We accordingly hold that, with respect to
the claim for breach of a contract implied in fact, the complaint failed to set forth a
claim upon which relief could be granted, and that the trial court did not err in
dismissing the claim.
3. Unjust Enrichment
{¶48} With respect to the claim for unjust enrichment, the complaint alleged
that D&D conferred a monetary benefit on Morgan and Verkamp by referring Epp’s
claim to them, that Morgan Verkamp knew it was receiving a monetary benefit and
attempted to conceal their work on Epp’s case from D&D, and that Morgan Verkamp
retained monetary benefits from D&D under circumstances in which it was unjust to
do so.
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{¶49} A plaintiff asserting a claim for unjust enrichment must establish “that
(1) a benefit was conferred by the plaintiff upon the defendant; (2) the defendant had
knowledge of the benefit; and (3) the benefit was retained by the defendant in
circumstances where it would be unjust to do so without payment.” Helton v. Fifth
Third Bank, 1st Dist. Hamilton No. C-210451, 2022-Ohio-1023, ¶ 25.
{¶50} R.C. 2305.07 sets forth the statute of limitations for an unjust
enrichment claim. Brown v. Fukuvi USA Inc., 2d Dist. Montgomery No. 29294, 2022-
Ohio-1608, ¶ 85. It provides that such an action shall be brought within four years
after the cause of action accrued. R.C. 2305.07(A). However, the editor’s notes to R.C.
2305.07 state:
Acts 2021, SB 13, § 5 provides: “(A) For causes of action that are
governed by division (A) of section 2305.07 of the Revised Code that
accrued prior to the effective date of this act, the period of limitations
shall be four years from the effective date of this act or the expiration of
the period of limitations in effect prior to the effective date of this act,
whichever occurs first.”
See Tabbaa v. Nouraldin, 8th Dist. Cuyahoga No. 110737, 2022-Ohio-1172, ¶ 23. As
this court has held, a claim for unjust enrichment is not subject to the discovery rule
for statute-of-limitations purposes. Palm Beach Co. v. Dun and Bradstreet, Inc., 106
Ohio App.3d 167, 175, 665 N.E.2d 718 (1st Dist.1995).
{¶51} D&D’s unjust enrichment claim accrued prior to the effective date of
2021 S.B. 13 (“S.B. 13”), which was June 16, 2021. Tabbaa at ¶ 23. The applicable
limitations period to this claim is thus the earlier of four years from the effective date
of S.B. 13, which would be June 16, 2025, or the expiration of the limitations period in
17 OHIO FIRST DISTRICT COURT OF APPEALS
effect prior to the effective date of S.B. 13, which was six years. Id. at ¶ 24. Under the
latter timeline, D&D’s unjust enrichment claim accrued in December of 2014, when
Morgan Verkamp settled Epp’s qui tam action and did not share any recovery obtained
with D&D. The limitations period for the claim therefore expired six years from that
date, which was December of 2020. As December of 2020 is earlier than June 16,
2025, that is the period to be applied to determine if the unjust enrichment claim was
timely filed. See Tabbaa at ¶ 23; editor’s notes to R.C. 2305.07.
{¶52} D&D did not file its Ohio complaint until May 2, 2022. Because the
limitations period for the unjust enrichment claim expired in December of 2020, well
before D&D filed its Ohio complaint, the claim was not timely.
{¶53} In an effort to save its claim, D&D contends that the doctrine of
equitable tolling applies to extend the statute of limitations. The equitable-tolling
doctrine “is to be applied sparingly and only in exceptional circumstances.” Roach v.
Vapor Station Columbus, Inc., 10th Dist. Franklin No. 21AP-511, 2022-Ohio-2106, ¶
8. To establish entitlement to equitable tolling, a plaintiff must show that “(1) he has
diligently pursued his rights, and (2) some extraordinary circumstance stood in his
way and prevented timely filing.” Strother v. Columbus, 10th Dist. Franklin No. 22AP-
7, 2022-Ohio-4097, ¶ 29. Application of the doctrine of equitable tolling “is generally
limited to circumstances in which a litigant is intentionally misled or tricked into
missing the filing deadline.” Roach at ¶ 8.
{¶54} Here, the complaint contains no evidence that D&D was intentionally
misled or tricked into missing the filing deadline or that an extraordinary
circumstance stood in D&D’s way to prevent timely filing of the complaint. Rather,
after learning that Morgan Verkamp had represented Epp and obtained a recovery,
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D&D elected to file suit in two other jurisdictions prior to filing suit in Hamilton
County. This was the product of calculated decision-making by D&D regarding the
forum in which to file suit rather than an extraordinary circumstance that prevented
D&D from timely pursuing its claim in Ohio. Given this background, we decline to
apply the doctrine of equitable tolling to D&D’s unjust enrichment claim.
{¶55} We accordingly hold that the trial court did not err in dismissing D&D’s
claim for unjust enrichment because it was filed outside of the applicable limitations
period.
4. Quantum Meruit
{¶56} D&D also sued on a theory of quantum meruit. As set forth in the
complaint, this claim contends that “in the event it is determined that there is no
express or implied contract between Plaintiff and Defendants, Defendants unjustly
received and retained compensation in the form of attorney fees as alleged in the
complaint.” The complaint further alleges that Morgan Verkamp’s retention of such
monetary benefits was inequitable and unjust, and that D&D was entitled to equitable
relief based on a quasi-contract with defendants under the doctrine of quantum
meruit.
{¶57} A claim for quantum meruit is essentially the same as a claim for unjust
enrichment. Univ. Hosp. v. Wells, 1st Dist. Hamilton No. C-210132, 2021-Ohio-3666,
¶ 11; Garb-Ko, Inc. v. Benderson, 10th Dist. Franklin Nos. 12AP-430, 12AP-474, 12AP-
475 and 12AP-476, 2013-Ohio-1249, ¶ 26 (recognizing that the claims of unjust
enrichment and quantum meruit share the same essential elements but differ in the
calculation of damages). Like the claim for unjust enrichment, D&D’s claim for
quantum meruit accrued in December of 2014 when Morgan Verkamp settled Epp’s
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qui tam action and did not share any recovery obtained with D&D. Since the complaint
was filed on May 2, 2022, the claim for quantum meruit was filed outside of the
applicable six-year-limitations period set forth in R.C. 2305.07.2
{¶58} We therefore hold that the trial court did not err in dismissing the
quantum-meruit claim.
5. Promissory Estoppel
{¶59} D&D’s complaint also contained a claim for promissory estoppel. In
support of this claim, D&D’s complaint relied on the same allegations that were made
in support of the claim for breach of contract. It additionally alleged that Morgan
Verkamp should reasonably have expected D&D to rely on its promises regarding joint
representation, that D&D relied on Morgan Verkamp’s promises by referring clients
like Epp to Morgan Verkamp instead of to other law firms, and that Morgan Verkamp
is bound by its promises to D&D.
{¶60} Like the claim for breach of contract, we need not determine whether
the claim for promissory estoppel was filed within the applicable limitations period
because we hold that, accepting all allegations in the complaint as true and construing
all inferences in favor of D&D, the complaint failed to state a claim upon which relief
could be granted with respect to this claim.
{¶61} The elements of a claim for promissory estoppel are: “1) a clear and
unambiguous promise, 2) reliance by the party to whom the promise is made, 3) the
reliance must be reasonable and foreseeable, and 4) the party relying on the promise
2 Because the quantum meruit claim accrued prior to the effective date of S.B. 13, like the claim for unjust enrichment, the applicable limitations period for this claim is the earlier of four years from the effective date of S.B. 13, which would be June 16, 2025, or the expiration of the six-year- limitations period in effect prior to the effective date of S.B. 13. Again, as with the claim for unjust enrichment, the earlier date is the expiration of the six-year-limitation period.
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must have been injured by the reliance.” Brown, 2d Dist. Montgomery No. 29294,
2022-Ohio-1608, at ¶ 69, quoting Mishler v. Hale, 2014-Ohio-5805, 26 N.E.3d 1260,
¶ 28 (2d Dist.).
{¶62} Much of our previous discussion as to why the complaint failed to state
a claim for breach of contract upon which relief could be granted is applicable to our
analysis of the promissory estoppel claim as well. The complaint failed to establish
that Epp accepted any proposed terms of representation from both Morgan Verkamp
and D&D. Morgan Verkamp and D&D may have discussed terms of their joint
representation of other clients and the division of any recovery, but the complaint does
not establish Epp’s assent to joint representation or to specific terms regarding D&D’s
role in the matter or share of any recovery. And, as discussed above, in the absence of
approval from Epp as to Morgan Verkamp and D&D’s joint representation, there was
no clear and unambiguous promise from Morgan Verkamp to D&D to share any fees
it obtained.
{¶63} We accordingly hold that the trial court did not err in dismissing the
claim for promissory estoppel.
6. Fraudulent Concealment
{¶64} The last claim asserted in D&D’s complaint is that of fraudulent
concealment. In support of this claim, the complaint alleged that Morgan Verkamp
had a duty to disclose to D&D that it had undertaken representation of Epp, and that
it concealed that material fact with the intention that D&D would rely on the
concealment. It further alleged that as a result of its reliance on Morgan Verkamp’s
failure to disclose, D&D was prevented from discovering Morgan Verkamp’s breaches.
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{¶65} A claim for fraudulent concealment is subject to the four-year statute of
limitations set forth in R.C. 2305.09. Malone v. Malone, 7th Dist. Columbiana No. 98
CO 47, 1999 Ohio App. LEXIS 2209, 9 (May 5, 1999); Auto Chem Labs. Inc., v. Turtle
Wax, Inc., S.D.Ohio No. 3:07cv156, 2008 U.S. Dist. LEXIS 83158, 16 (Sept. 23, 2008).
This statute provides that all causes of action for relief on the ground of fraud shall be
brought within four years of the cause of action accruing. R.C. 2305.09(C).
{¶66} If D&D’s cause of action for fraudulent concealment accrued in 2010
when Morgan Verkamp filed Epp’s qui tam action and failed to disclose its
representation of Epp to D&D, the limitations period expired in 2014. If the cause of
action accrued in 2016 when D&D learned of Morgan Verkamp’s representation of
Epp, the limitations period expired in 2020. Because the claim for fraudulent
concealment was filed outside of the limitations period using either date, we need not
specifically determine when the cause of action accrued.
{¶67} Because it was filed outside of the statute of limitations, we hold that the
trial court did not err in dismissing D&D’s claim for fraudulent concealment. The first
assignment of error is accordingly overruled.
Conclusion
{¶68} Because the trial court properly dismissed all claims in D&D’s complaint
either because the complaint failed to state a claim upon which relief could be granted
or because the claims were filed outside of the applicable limitations period, we affirm
the trial court’s judgment granting Morgan Verkamp’s motion to dismiss.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
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Please note: The court has recorded its own entry on the date of the release of this opinion.