[Cite as Fox Consulting Group, Inc. v. Mailing Servs. of Pittsburgh, Inc., 2022-Ohio-1215.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
FOX CONSULTING GROUP, INC., o/a : APPEAL NO. C-210250 SCHOOLEY MITCHELL TELECOM TRIAL NO. A-2001289 CONSULTANTS, :
Plaintiff-Appellant, : O P I N I O N.
vs. : MAILING SERVICES OF PITTSBURGH, INC., :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: April 13, 2022
Rendigs, Fry, Kiely & Dennis, LLP, Donald C. Adams and James J. Englert, for Plaintiff-Appellant,
Brickler & Eckler LLP and Jeffrey P. McSherry, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Plaintiff-appellant Fox Consulting Group, Inc., operating as Schooley
Mitchell Telecom Consultants (“Fox”) appeals the trial court’s judgment granting
defendant-appellee Mailing Services of Pittsburgh, Inc.’s, (“MSP”) Civ.R. 12(B)(6)
motion to dismiss Fox’s complaint for breach of contract and quantum meruit/unjust
enrichment. Because the trial court failed to accept all allegations in Fox’s complaint
as true, and because it erred in determining that Fox failed to sufficiently allege that
MSP breached the parties’ contract, we hold that the trial court erred in granting the
motion to dismiss with respect to Fox’s breach-of-contract claim, and we reverse its
judgment in part. We hold, however, that the trial court properly dismissed Fox’s
claim for quantum meruit/unjust enrichment because the subject matter of that claim
was covered by the parties’ contract.
Allegations and Procedural Background
{¶2} In September 2018, Fox and MSP entered into a contract under which
MSP authorized Fox to review its telecommunications systems and to submit
recommendations for possible savings. Under the contract, MSP agreed to pay Fox 50
percent of all savings realized as a result of MSP’s acceptance of any recommendation
made by Fox, for a period of 36 months from the date of implementation of the
accepted recommendation. The contract prohibited MSP from negotiating with other
consultants or suppliers prior to Fox’s submission of cost-savings recommendations
and prohibited MSP from negotiating alternate pricing with other suppliers during the
term of the contract. The contract provided: “Once this agreement is signed, any client
savings realized shall be attributed as a [Fox] initiative.” In addition, the contract
provided: “The Client warrants that they will not duplicate the work carried out by
[Fox], nor will the Client negotiate alternate pricing for telecom services during the
term of the agreement.”
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} In January 2019, Fox submitted a recommendation for savings, which
MSP accepted.
{¶4} In March 2020, Fox filed suit against MSP for breach of contract,
quantum meruit/unjust enrichment, and declaratory relief. MSP filed a Civ.R.
12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief
could be granted. The trial court granted MSP’s motion and dismissed the action.
{¶5} In a single assignment of error, Fox argues that the trial court erred by
failing to apply the proper standard in deciding the Civ.R. 12(B)(6) motion and by
dismissing the action. Fox does not challenge on appeal the trial court’s dismissal of
its claim for declaratory relief.
Standard of Review
{¶6} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of a complaint. Thomas v. Othman,
2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When deciding such a motion, the
court must accept all factual allegations in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. Id. A court should not dismiss
a claim for failure to state an actionable claim unless it appears beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling the plaintiff to recovery.
Id. at ¶ 19.
{¶7} The Supreme Court of Ohio has explained that under the notice-
pleading standard set forth in the Ohio Rules of Civil Procedure, “a plaintiff is not
required to prove his or her case at the pleading stage.” York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991). Therefore, a court may
not grant a motion to dismiss if the complaint sets forth factual allegations that if
proved would allow the plaintiff to recover. Id. at 145. We review a trial court’s ruling
3 OHIO FIRST DISTRICT COURT OF APPEALS
on a Civ.R. 12(B)(6) motion de novo. Holimon v. Sharma, 2021-Ohio-3840, 180
N.E.3d 1226, ¶ 8 (1st Dist.).
Breach of Contract
{¶8} The elements of a breach-of-contract claim are: (1) the existence of a
contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4)
damages resulting from the breach. White v. Pitman, 2020-Ohio-3957, 156 N.E.3d
1026, ¶ 37 (1st Dist.). In support of its breach-of-contract claim, Fox alleged the
existence of a contract, and pursuant to Civ.R. 10(D)(1), attached to its complaint
copies of the signed contract and the recommendation for savings accepted by MSP.
Second, Fox alleged that it performed under the contract by expending “significant
time, cost, and effort in developing recommendations for savings, which were accepted
by [MSP].” Third, Fox alleged that MSP breached the contract by negotiating alternate
pricing from different suppliers for telecommunications services. Finally, Fox alleged
that it was entitled to 50 percent of the savings realized by MSP as a result of its
implementation of Fox’s recommendations or its separate negotiations with other
suppliers. The trial court was required to accept Fox’s factual allegations as true and
draw all reasonable inferences in its favor. See id. at ¶ 39.
{¶9} Instead, the trial court determined that Fox “failed to present any proof
that [MSP] utilized a third party to implement any of its cost saving
recommendations.” In doing so, the court failed to accept as true the allegation in
Fox’s complaint that MSP “chose to negotiate alternate pricing from different vendors
for telecom services, which when implemented, will result in savings for [MSP].”
Viewing the allegations in the complaint in the light most favorable to Fox, we hold
that Fox sufficiently stated a cause of action for breach of contract, and the trial court
erred in concluding otherwise. See Ri’Chard v. Bank of Am., 1st Dist Hamilton No. C-
4 OHIO FIRST DISTRICT COURT OF APPEALS
190677, 2020-Ohio-4688, ¶ 12. Therefore, the trial court erred by dismissing that
claim.
Quantum Meruit/Unjust Enrichment
{¶10} Claims for quantum meruit and unjust enrichment are equitable claims
based on quasi-contract and their elements are identical. See City of Akron v. Baum,
9th Dist. Summit No. 29882, 2021-Ohio-4150, ¶ 17. A plaintiff seeking to recover
under quantum meruit or unjust enrichment must show that: (1) the plaintiff
conferred a benefit on the defendant; (2) the defendant knew of the benefit; and (3) it
would be unjust to allow the defendant to retain the benefit without payment. Meyer
v.
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[Cite as Fox Consulting Group, Inc. v. Mailing Servs. of Pittsburgh, Inc., 2022-Ohio-1215.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
FOX CONSULTING GROUP, INC., o/a : APPEAL NO. C-210250 SCHOOLEY MITCHELL TELECOM TRIAL NO. A-2001289 CONSULTANTS, :
Plaintiff-Appellant, : O P I N I O N.
vs. : MAILING SERVICES OF PITTSBURGH, INC., :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: April 13, 2022
Rendigs, Fry, Kiely & Dennis, LLP, Donald C. Adams and James J. Englert, for Plaintiff-Appellant,
Brickler & Eckler LLP and Jeffrey P. McSherry, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Plaintiff-appellant Fox Consulting Group, Inc., operating as Schooley
Mitchell Telecom Consultants (“Fox”) appeals the trial court’s judgment granting
defendant-appellee Mailing Services of Pittsburgh, Inc.’s, (“MSP”) Civ.R. 12(B)(6)
motion to dismiss Fox’s complaint for breach of contract and quantum meruit/unjust
enrichment. Because the trial court failed to accept all allegations in Fox’s complaint
as true, and because it erred in determining that Fox failed to sufficiently allege that
MSP breached the parties’ contract, we hold that the trial court erred in granting the
motion to dismiss with respect to Fox’s breach-of-contract claim, and we reverse its
judgment in part. We hold, however, that the trial court properly dismissed Fox’s
claim for quantum meruit/unjust enrichment because the subject matter of that claim
was covered by the parties’ contract.
Allegations and Procedural Background
{¶2} In September 2018, Fox and MSP entered into a contract under which
MSP authorized Fox to review its telecommunications systems and to submit
recommendations for possible savings. Under the contract, MSP agreed to pay Fox 50
percent of all savings realized as a result of MSP’s acceptance of any recommendation
made by Fox, for a period of 36 months from the date of implementation of the
accepted recommendation. The contract prohibited MSP from negotiating with other
consultants or suppliers prior to Fox’s submission of cost-savings recommendations
and prohibited MSP from negotiating alternate pricing with other suppliers during the
term of the contract. The contract provided: “Once this agreement is signed, any client
savings realized shall be attributed as a [Fox] initiative.” In addition, the contract
provided: “The Client warrants that they will not duplicate the work carried out by
[Fox], nor will the Client negotiate alternate pricing for telecom services during the
term of the agreement.”
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} In January 2019, Fox submitted a recommendation for savings, which
MSP accepted.
{¶4} In March 2020, Fox filed suit against MSP for breach of contract,
quantum meruit/unjust enrichment, and declaratory relief. MSP filed a Civ.R.
12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief
could be granted. The trial court granted MSP’s motion and dismissed the action.
{¶5} In a single assignment of error, Fox argues that the trial court erred by
failing to apply the proper standard in deciding the Civ.R. 12(B)(6) motion and by
dismissing the action. Fox does not challenge on appeal the trial court’s dismissal of
its claim for declaratory relief.
Standard of Review
{¶6} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of a complaint. Thomas v. Othman,
2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When deciding such a motion, the
court must accept all factual allegations in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. Id. A court should not dismiss
a claim for failure to state an actionable claim unless it appears beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling the plaintiff to recovery.
Id. at ¶ 19.
{¶7} The Supreme Court of Ohio has explained that under the notice-
pleading standard set forth in the Ohio Rules of Civil Procedure, “a plaintiff is not
required to prove his or her case at the pleading stage.” York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991). Therefore, a court may
not grant a motion to dismiss if the complaint sets forth factual allegations that if
proved would allow the plaintiff to recover. Id. at 145. We review a trial court’s ruling
3 OHIO FIRST DISTRICT COURT OF APPEALS
on a Civ.R. 12(B)(6) motion de novo. Holimon v. Sharma, 2021-Ohio-3840, 180
N.E.3d 1226, ¶ 8 (1st Dist.).
Breach of Contract
{¶8} The elements of a breach-of-contract claim are: (1) the existence of a
contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4)
damages resulting from the breach. White v. Pitman, 2020-Ohio-3957, 156 N.E.3d
1026, ¶ 37 (1st Dist.). In support of its breach-of-contract claim, Fox alleged the
existence of a contract, and pursuant to Civ.R. 10(D)(1), attached to its complaint
copies of the signed contract and the recommendation for savings accepted by MSP.
Second, Fox alleged that it performed under the contract by expending “significant
time, cost, and effort in developing recommendations for savings, which were accepted
by [MSP].” Third, Fox alleged that MSP breached the contract by negotiating alternate
pricing from different suppliers for telecommunications services. Finally, Fox alleged
that it was entitled to 50 percent of the savings realized by MSP as a result of its
implementation of Fox’s recommendations or its separate negotiations with other
suppliers. The trial court was required to accept Fox’s factual allegations as true and
draw all reasonable inferences in its favor. See id. at ¶ 39.
{¶9} Instead, the trial court determined that Fox “failed to present any proof
that [MSP] utilized a third party to implement any of its cost saving
recommendations.” In doing so, the court failed to accept as true the allegation in
Fox’s complaint that MSP “chose to negotiate alternate pricing from different vendors
for telecom services, which when implemented, will result in savings for [MSP].”
Viewing the allegations in the complaint in the light most favorable to Fox, we hold
that Fox sufficiently stated a cause of action for breach of contract, and the trial court
erred in concluding otherwise. See Ri’Chard v. Bank of Am., 1st Dist Hamilton No. C-
4 OHIO FIRST DISTRICT COURT OF APPEALS
190677, 2020-Ohio-4688, ¶ 12. Therefore, the trial court erred by dismissing that
claim.
Quantum Meruit/Unjust Enrichment
{¶10} Claims for quantum meruit and unjust enrichment are equitable claims
based on quasi-contract and their elements are identical. See City of Akron v. Baum,
9th Dist. Summit No. 29882, 2021-Ohio-4150, ¶ 17. A plaintiff seeking to recover
under quantum meruit or unjust enrichment must show that: (1) the plaintiff
conferred a benefit on the defendant; (2) the defendant knew of the benefit; and (3) it
would be unjust to allow the defendant to retain the benefit without payment. Meyer
v. Chieffo, 193 Ohio App.3d 51, 2011-Ohio-1670, 950 N.E.2d 1027, ¶ 37 (10th Dist.).
“The doctrines differ with respect to the calculation of damages—damages for unjust
enrichment are ‘the amount the defendant benefited,’ while damages for quantum
meruit are ‘the measure of the value of the plaintiff’s services, less any damages
suffered by the other party.’ ” Id., quoting U.S. Health Practices, Inc. v. Blake, 10th
Dist. Franklin No. 00AP-1002, 2001 Ohio App. LEXIS 1291, *5 (Mar. 22, 2001).
{¶11} Because claims for unjust enrichment or quantum meruit are equitable
claims based on a quasi-contract, they are only available in the absence of an
enforceable contract. Deffren v. Johnson, 2021-Ohio-817, 169 N.E.3d 270, ¶ 10 (1st
Dist.), citing Ryan v. Rival Mfg. Co., 1st Dist. Hamilton No. C-810032, 1981 Ohio App.
LEXIS 14729, *3 (Dec. 16, 1981); Zara Constr., Inc. v. Belcastro, 5th Dist. Richland
No. 2021 CA 0039, 2022-Ohio-788, ¶ 62. A plaintiff may not recover under a theory
of unjust enrichment or quantum meruit when an express contract covers the same
subject matter. Ryan at *2.
{¶12} Here, Fox alleged that it conveyed to MSP the benefit of price-reduction
recommendations, that MSP knew of the benefit and used it to negotiate with other
suppliers, and that MSP’s retention of Fox’s services without payment would be unjust.
5 OHIO FIRST DISTRICT COURT OF APPEALS
However, Fox acknowledges that because the parties’ contract covered this very
subject matter, an equitable claim in quasi-contract for quantum meruit/unjust
enrichment will not lie. Because there is no dispute that there was an express contract
between the parties covering the same subject matter, Fox’s claim for quantum
meruit/unjust enrichment fails as a matter of law. Therefore, the trial court properly
dismissed the claim.
Conclusion
{¶13} Fox’s assignment of error is overruled with respect to its quantum
meruit/unjust enrichment claim, but it is sustained with respect to its breach-of-
contract claim. Because the trial court failed to accept all allegations in Fox’s
complaint as true, and because it erred in finding that the complaint failed to state a
claim for breach of contract, we reverse its dismissal of that claim. Therefore, the trial
court’s judgment is affirmed in part, reversed in part, and this cause is remanded for
further proceedings.
Judgment accordingly.
ZAYAS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.