[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 , Plaintiff

- Appell ant ,

vs. MORGAN VERKAMP, LLC , FR E DERICK M. MORGAN, JR., and
JENNIFER M. VERKAMP , Defendant s - Appell ees . :

:

:

:

:

:

:

: APPEAL NO

. C

- 220478 TRIAL NO. A

- 2201568
O P I N I O N

.

Civil Appeal From: Hamilton County Court of Common Pleas Judgmen t Appealed From Is : Aff irmed Date of Judgment Entry on Appeal: May 24. 2023

S trauss Troy C

o. , LPA , and Robert R. Sparks , for Plaintiff

- Appell ant , Montgomery Jo n son LLP , Ge orge D. Jonson and G. Todd Hoffpauir , for Defendant s Appell ees .OHIO FIRST DISTRICT COURT OF APPEALS

2 

### K INSLEY 

### , Judge. {¶1} T his case marks the third attempt in as many jurisdictions by p laintiff

appell ant Danziger & De L l ano , 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 Pennsyl vania and Texas , D&D sued both the law firm that did repre sent the client

— Morgan Verkamp, L L C , — a nd its two principals , F rederick Morgan and Jennifer Verkamp (c ollectively “ M o rgan Verkamp ” ) , in the Hamilton County Court of Common
Pl eas. See Danziger & De Llano, LLP v. Morgan Verkamp LLC , 948 F.3d 124 (3d Cir.2020) ; Danziger & De Llano, L.L.P. v. Mo rg an Verkamp, L.L.C. , 24 F.4th 491 (5th Cir.2022)

. Its claims included breach of contract, breach of c ontract implied in fact, unjust enrichment, quantum merui t, promissory estoppel, and fraudulent concealmen t

. 

### {¶2} Raising arguments that D&D ’ s claims were b ar red by the applicable statutes of limit ations and the applicable professional conduct rul es, M o rgan Verkamp moved to dismiss the complai nt under Civ.R. 12(B)(6)

. T he tria l court granted M organ Verkamp ’ s motion and dismissed the action . In a si ngle assi gn ment of error , D&D argues that the trial court erred in dismissing its c omplaint. 

### {¶3} For the reasons that follow, we affirm the trial court ’ s judgment.

F actual and Procedura l Background


### {¶4} D anzi ger & De Llano, LLP , is a law firm loc ated in Texas that frequent ly represents clients in whistleblower cases. D&D and Rod De Llano, one of its principals, have a history of referring a specialized type of whi stleblower cases known

as qui t am actions to Freder ick Morgan an d Jennifer Verkamp. W hen the refe rral relation sh ip began, Morgan and Verkamp were working at Volkema Thomas, an OhioOHIO FIRST DISTRICT COURT OF APPEALS

3 law firm. Later, they left that firm to open their own law practice known as Morgan Verkamp. This dis pute concerns a client, Michael E pp, whom D&D referred to Morgan and Verkamp when th ey were attorneys at Volkema Thomas and whom Morgan Verkamp later successfully represented in a fe der al qui tam action in Pennsylvania. 

### {¶5} D&D ’ s relationship with Morgan and V erkamp began i n 200 6 , when
D&D referred a different client in a poten tial qui tam ac tion , Stacy Vanderslice, to Vol kema Thomas

. Morgan, Verk amp, and D&D then entered in to a written fee agreement with Stacy V anderslice

. The agreement provided that Vand ers lice would share 40 percent of any recovery obt ained on her b eh alf wi th this team of attor neys. Th e attor neys a greed to alloc at e their share of the contingent fee by giving 33 percent to Volkema Thomas, 33 percent to D&D, and the remaining 34 p ercent in pr oportion to the hours spent on representation of Vanderslice by each firm. 

### {¶6} Also i n 2006, D&D referred Donald Galmi nes, another pote ntial qui

tam relator , to Morgan

. Galmines entered into a fee agreement with Volkema Thomas and D&D that w as i dentical to t h e agreement u sed in the Vanderslice action. 

### {¶7} I n April of 200 7, 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 mat ter further and explaining that it would be partnering with Vol kema Thomas in the investigation and, if warra nt ed, 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 confe rence call to discuss Epp ’ s case. On April 23, 2017, Epp emailed D&D and Morgan with a quest io n about how their legal fees would be paid. Mor gan responded to Epp, informin g him that the attorn e ys would not be paid if Epp did n o t ob tain aOHIO FIRST DISTRICT COURT OF APPEALS

4 recovery . Morga n also informed Epp that , if a recovery was obtained , the attorney ’ s contingent share would b e disbursed from the proceeds

. 

### {¶9} On May 21, 2007, Epp , De Llano , and M o rgan parti cipated in a nother conference call to discuss a draft of Epp ’ s complaint and the p arties ’ fee agreement.
On M ay 30, 2007, in response to a request from Epp, Morg an sent Epp a d raft fee agreement that was similar in its structu re , but not the amount of fees to be paid , to the fee agreement used in the V anderslice and G almines actions. Morgan informed Epp that the draft agreement “ does not include the details of th e relationshi p 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 f

irm has a greed to divide any recovery of atto rn ey ’ s fees generated from the contingent p ortion of the r e lators ’ share of any

a war d (as described abo ve) in the follo wing manner:

___ p ercent (%) of the fees generated by the con tingent portion of the relators ’ of any recovery sh all be paid to Volkema Thomas, LPA.

___ p ercent (%) of the fees ge ne r ated by the co ntingent portion of the relators ’ of any recovery shall be paid to Dan ziger & D e Llano, P. C. 

### {¶10} T h e numerical amount of the percenta ge that e ach party was to recov er was left blank

. No other pr ovision in the draft agreement described the work to be perfor me d by D&D and Morgan Verkamp or how the firms would share fees or
respons ibili ty for Epp ’ s case. On June 4, 2007, i n response to questions from Epp about this dr aft agreement , Morgan wrote a letter c larifying that the contingency fee to be c harged would be 40 percent of the amount the client recovered as well as attorney s ’ fees for attorney time and billable staff. On June 13, 2007, Epp respondedOHIO FIRST DISTRICT COURT OF APPEALS

5 wit h questions u nrel ated to th e fee agreement . After those questions, neither party heard any f

urther from E pp for a period of time

. 

### {¶11} In September of 2007, Epp reinit iated contact with De Llano and Morgan and expressed interest in proceeding with the case . H ow ever, Epp a gain ceased co mmunication shortly thereafter

. 

### {¶12} In January of 2008, Morgan and V erkamp lef t V ol k ema Thomas and established a new firm, Morgan Verkamp, LLC. Morgan and Verkamp e ntered into a separation agreem ent with V o lkema T homas in which th ey assumed r e sponsibility f or the Vanderslice , G almines, and Epp cases and agreed to reimburs e Vo lkema Tho ma s for case exp enses. 

### {¶13} On January 13, 2008, Morgan emailed Epp and De L lano to ad vise them that he and Verkamp had started t heir own firm

. T he email additional ly informed Epp

t hat “ As I am no longer affiliated with Vo lkema Thomas , the draft c ontract I sen t you several months ago is no longer relevant

. Let Rod [De Llano ] and me know if we can be of further s ervice. ” Epp responded to M organ and De Ll an o , asking , “ [A] r e you interest ed to take over the case on the same basis as Vo lkema Thomas? ” 

### {¶14} Morgan answer ed Epp, com m unicating that “ Michael, we ’ re doing the same work in the same place, and definitely remain interested in your case. The te rms
were ours to begin with, s o while we wou ld need to reacquaint o urselves with the case and still would n eed to obtain t he re st of your materials for review , if we were to handle the case w e w ould do it on the s ame terms. ” 

### {¶15} After this exchange of emails , D&D never heard fro m Epp aga in. D&D and M organ Verkamp continued to wor k together on the Vanderslice and G almines

cas es . In January of 2010, De L lano saw a press release regarding a qui tam actionOHIO FIRST DISTRICT COURT OF APPEALS

6 that seemed to be si milar to Epp ’ s action, and he email ed Morgan inquiri ng whether th e press releas e was referring to the Epp case. Morgan responded in the negat ive. 

### {¶16} I n Mar ch 2010, Morgan Verkamp brought suit on Epp ’ s behalf in the Pennsylvania federal court. More than four years after the suit was filed, the U nited
States governme nt intervened and settled t he suit for millions of dollars, result ing in several millions in l eg al fees for Morgan Verkamp. See Danziger & De Llano , 948 F.3d
at 128. 

### {¶17} In Octob er 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 ac tion , D &D fil ed a discovery action in 2016 , an d then a compl aint in
2018 , against Morgan Verkamp in Pennsylvania state court. Id

. Morgan Verkamp

r emoved the case to federal court, where they filed a m otion to di smiss the action. Id

. T he moti on to dismi ss was grante d by the United States D istrict C o urt for the Eastern District of Pennsy

lvani a , and the Third Circuit Cou rt of Appeals affirmed that dismissal. Id . at 128, 133. 

### {¶18} D &D subsequ ently filed a compl aint against M organ Verkamp in f ederal

co urt in the Southern Dis tr ict of Texas. Morgan Verkamp again filed a motion to dismiss. Dan zig er & De L lano , 24 F.4 th at 494. The motion to dismiss was granted, and that dismissal wa s affirmed o n appeal b y the Fif th Circu it Cou rt of Ap peals. Id

. 

### {¶19} On May 2, 2022, D&D filed th e complaint in this case. T he complaint contained claims for brea ch of contract, breach of contract implied in fact, unjust enrichment, quantum meruit, promissory estoppel, and fraudulent con cealment

. I t alleg ed that Morgan Verkamp had willf ully deceived D &D by represent ing Epp in the action that D&D had initiall y referred years earlier.OHIO FIRST DISTRICT COURT OF APPEALS

7 

### {¶20} T he complaint described a number of communications in volving Morgan Verkamp, D&D, and Epp. F or one, M o r gan Verk amp resumed
communication by email with Epp in 2010 rega rd ing his claim without inc lud ing D&D

. T hi s was the c ase even though Morgan told Epp in his January 20 0 8 email that his new firm would take over the c ase on the same bas is as had previously b een arra nged with V olkema Thomas

. The complain t al so referenced a n email that Morgan sent t o Epp in February of 20 1 0 t ransmit ting a draft fee contract

. In that email, Mor gan informed Epp that “ I ha ve not included Rod De Llano [sic] on this contract , as we have

n ot 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. O therwise, I will work with him once the case e volves to ensure that he is r easonably compensat e d for t he work he did for you in 2007. ” 

### {¶21} T he compl aint further al leged that Morgan never reached out to De Llano or ensured that he was reasonably compensated f or his earlier work and that Morgan Verkamp fraudulently concealed their re presentation of Epp while c ontinuing to work together with D&D on th e V anderslice an d Galmines cases during the
pe ndenc y of the Epp litigation

. 

### {¶22} According to the complaint, Mo rgan Verkamp filed suit on behalf of Epp
in a qui tam action in March of 2 010 in the Eastern Distric t of Pe nnsylvania and ultimately received a conting ency share of t he award t hat Epp had obtained in excess of five million dollars. D&D asserted it was entitle d to approximately $2,133,333 in fees for its referral of Epp. 

### {¶23} M o rgan Verk amp filed a Civ.R. 1 2(B)( 6) motion to dismiss D&D ’ s complaint

. In supp ort of the mo ti on, Morgan Verkamp argued that the claims asserte dOHIO FIRST DISTRICT COURT OF APPEALS

8 in the complaint were barred by the applica ble statutes of limitations , D&D ’ s claims

w ere substantially flaw ed , the equitable cla ims wer e barred by laches , the Ohio and
Texa s R u les of P r ofes sional Conduc t bar red D&D ’ s claims , and fee disputes between lawyers in different l aw fir ms cannot be litigated in court in Ohio. 

### {¶24} T he tri al court is sued an entry g ranting the moti on t o dismi ss . Th e entry stated that the motion was well taken, but it did not set fo rt h the basis on which dismissal was g ranted.

Standard of Re v iew


### {¶25} W e review a trial court’s ruling on a Civ.R. 12(B)(6) motion to dism iss de novo. Plush v. Cincinn ati , 2020
- O hio

- 6713, 164 N.E.3d 1056, ¶ 12 (1st Dist.). A Civ.R. 12(B)(6) motion to dismiss fo r failure to state a claim upon which relief may be grante d tes ts the sufficiency of the complaint. Thomas v. Othman , 2017
- Ohio

- 84 49, 99 N.E.3d 1189, ¶ 18 (1st Dist.). Wh en ruling on such a motion, the trial court is confined to the allegati ons in the co mp laint, must accept all the allegations as true, and must draw all reasonable inferences in favor of the nonmoving party. Plush a t ¶ 12. A Civ.R. 12(B)(6) mot ion to dism iss should only be granted if it “appear[s] beyond a doubt from the com plaint that t he plaintiff can prove no set of facts entitling him to

re cover y.” Id ., quoting O’Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 75 3 (1975), s yllabus. 

### {¶26} The parties raise statute

- of

- limitations arguments in this app eal.
Beca use a statute

- of

- limitations defense typically requires refe rence to materials outside the complaint, it is not generally properly ra ised in a Civ.R. 12(B)(6) moti on. Lyons v . Kindell , 2015
- Ohio

- 1709, 35 N.E.3d 7, ¶ 30 (1st Dist.). “But a Civ.R . 12(B)(6)OHIO FIRST DISTRICT COURT OF APPEALS

9 mo ti on may be granted on statute

- of

- limitations grou nds whe n the complaint on its face conclusively indicates that the a ction is tim e - barred.” Id

. Civ.R. 12(B)(6

) Anal ysis


### {¶27} I n a single assignment of er ror, D&D argues that the trial court erred i n granting th e motion to dismiss. It contends that each claim asserte d in the complaint was filed within the applicable limita tions period. W e discuss each claim in turn

.
1. Breach of Contract


### {¶28} W ith respect to the claim for breach of contract, D&D ’ s compla int allege d t ha t the parties ’ oral and written communications, along w ith their longstanding course of conduct , resulted in an enforceable agre ement

. Th e complaint

s pecific ally asserte d that: The part ies ’ written agreements, acts, and years

- long course of dealing

e sta bl ish that their agreement included: (1) that Plaintiff and Defendant would work together on qui tam cases; (2) that Plaintiff wo uld refer qui

tam Relators to Defendants a nd, if litigation resulted from the referral, Plaintiff would be involv ed in such li ti gation as co

- counsel; (3) that
P laintiff and Defendants would make full disclosure of all relevant facts to their clients or pro spective clients and also make full disclo sure of all relevant facts to each other; (4) that they would divide at torney fee s w it h

one - third to Plaintiff, one

- third to Defendants, and one - third divided based upon time expended in the matter; and, (5) that P laintiff and Defendants would act in accor dance with the ethical requirements of theOHIO FIRST DISTRICT COURT OF APPEALS

10 legal profession an d would n ot activel y c on ceal relevant facts from each other. 

### {¶29} To establish a cla im for breach of contract , a plaintiff must show th e existence of a contr act, performance by the plaint iff, breach by the defendant, and a resulting dama ge o r loss to the plaint iff. Whi te v. Pitm an , 2 020
- Ohio

- 3957, 156 N.E.3d 1026, ¶ 37 (1 st Dist.). 

### {¶30} D&D argues that Morgan Verkamp impr operly attempted to charac terize their br each of contract claim b elow a s a claim fo r a breach of an oral contract, when the complaint, in fact, alleged a claim for bre ac h of a written contract. D&D further argue s that, rega rdless of whether the claim was for b reach of an oral or
writ ten contract , the claim was filed within t he applicabl e limitations period. We need not reach the issue of whether the claim was filed wi th in the relevant statute of limitations , as we find that the complaint fails to allege the ex istence of a contract, either writte n or oral. 1 

### {¶31} In order for a c ontract to e xist, there generally must be an offer, acceptance , and consideration. N. Side Bank & Trust Co. v. Trinity Aviation LL C ,
2020
- Ohio

- 1470, 153 N.E.3d 889, ¶ 15 (1st Dist. )

. The alleged contract mus t al so reflect the essential t erms with de f initeness and certainty , as there must be a meeting of the minds as to all essential te r ms . Id

. ; Ep is copal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relation s , 61 Ohio St. 3d 366, 369, 575 N.E.2d 134 (1991). To refl ect a meeting of the minds, all p a rties to an agreement must mutually assent to the

1 On appeal, D&D argues that the contr act it seeks to enforce existed solely between it and Mor gan V erkamp. H o wever, the complaint appe ar s to describe a th ree - pa rty agreement between Epp, D&D, a nd Morgan Verkamp, and it wa s this alleged contract that the trial court reviewed in gra nting the motion to dismiss. We limit our review to the all eged thr ee - pa rty contract de scribed in the complaint, given that Civ

. R. 12 (B)(6 ) tests the sufficiency of t he complaint , which did not i nclude any purpo rted agreement that exi sted solely between D&D and Morgan Verkamp

.OHIO FIRST DISTRICT COURT OF APPEALS

11 subs tance of the contract. Jackson Tu be Serv. v. C am aco LL C

, 2d Dist. Miami Nos.

2012 CA 19 and 2012 CA 25, 2013
- Ohio

- 2344, ¶ 1 1 , citing Zelina v. Hillye r , 165 Ohio App.3d 255, 2005
- Ohio

- 5803, 84 6 N.E.2d 68, ¶ 12 (9th Dist.) (stating that a meeting of the minds occurs if “ a reasonable person would fin d th at the parties manifested a present intention to be bound to an agreement ” ). The parties must have a distinct and

co mmon intention that is communi cated by eac h party to the other. Id ., citing McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. F irst Unio n Mg t. , In c ., 87 Ohio App.3d 613, 620, 622 N.E.2d 1093 (8th Dist.1993)

. A. The Draft Ag reement and Related Emails Were Not Specific Enough to Constit ute a Valid Offer


### {¶32} D &D ’ s complaint was less than prec ise in its basis for arguing the
existence of a written co ntract. However, D&D appears to rely upon the dra f t agreement that Morgan sent to Epp in May of 2007 and the emai ls t hat both accompanied and c ame after it s circulation to suggest that a written contract existed. We consider at the ou tset wheth er the d ra ft agreement and Morgan ’ s email s constitute a valid offer to contract. A n offer must be specific enough to form t he basis for a meeting of the minds. Call ander v. Callande r , 10th Dist. Franklin No. 07AP

- 746,
2008

- Ohio

- 2305, ¶ 1 4
. 

### {¶33} Under th is standard, t h e draft agreement and M organ ’ s emails to Epp

were insufficient to constitute a valid offer to contract because th ey expressly omitted key terms re garding D& D ’ s role

. First, the document fail ed to include the percentages of the contingent fe e that eac h p ar ty would receive, prohibiting an adequate meeting of the minds regarding the consideration to be paid or the re la tionship between the two law firms

. Morgan ’ s email to Epp specifically noted as muc h , highlighting that theOHIO FIRST DISTRICT COURT OF APPEALS

12 draft agreement “ do es not includ e the details of the relationship between [De Llano’s] and our firms, which w ill also be subject to your approval

. ” Morgan ’ s June 4, 2007 l etter to Epp did not shed sufficient light on the matter, as it only clarified that the
contin g en c

y fee would be set a t 40 percent, but did not describe how that fee would be divided between the firms

. 

### {¶34} The complaint also referen ces an email from Epp inquiring as to wheth er Morga n, a t his new firm, would take over the case on the same terms that Volkema Th omas had agre ed to , a s well as an email from Morgan stating that “ if we were to handle the case we would do it on the same ter ms.” But Morgan ’ s email fail ed

to set fort h the re ferenced terms or to clarify the previously

- omitted provisions regarding D&D ’ s role and resp o n sibility

. A s a result, Morgan ’ s later email suffered from the same lack of specificity as the initial draft ag reement. 

### {¶35} T he c omplai nt additional ly asse rts that Morgan sent a nother draft fee

contract to Epp in Febru ary of 2 010 . But D&D wa s not include d in that contract at all , which proposed an agreement solely between Epp and Morgan Verkamp

. Thus, the February 201 0 e mail cannot possibly form the basis of an of fer to contract between Morgan Verkamp and D&D. 

### {¶36} Even accepting all allegati ons in the co mp laint as true and construing all inferences in D&D ’ s favor, t he writings referenced in the complaint s imply fail to set forth a specific offer to con tract between Morgan Verkamp and D&D to jointly represent Epp an d share a contingent fee of any recovery o b tained f rom t hat representation

. Absent such an offer , we cannot find a valid written contract to enf orce in this case.OHIO FIRST DISTRICT COURT OF APPEALS

13 B. The Offer Was Withdr awn Before It Was Accepted


### {¶37} E ven if we were to find that the draft ag reement and Morgan ’ s emails about the dra f

t agreeme nt cons t ituted a specific offer, a further problem with D&D ’ s argument is that Morgan with d rew the offer prior to acceptance by either Epp or D&D. Unde r “ traditional contrac t principles * * * an offe r may b e withdraw n at
any tim e be for e it is ac c e pted. ” Ohio Title Corp. v. Pingu e , 10 th Dist. Franklin No.
10AP

- 1010, 2012
- Ohio

- 1370, ¶ 4 8

. 

### {¶38} After Mor gan sent Epp the draft agreement and c larified the overall contingency fee amount, the attorneys lost contact w ith Epp. He never agreed to the
arrangem e n t or oth erwise assented to the proposed contract. Importantly, neither did
D&D. Thus, even were we t o interpret the draft agreement a nd related emai ls as an offer, there was no acceptance by the other par ties to the contract

— Epp and D&D. 

### {¶39} W

hen Morgan le f

t Volke ma Thomas, he then emaile d Epp to inform
him o f Morgan and Verkamp ’ s new firm. In that email, M organ told Epp that , as a result of the principals ’ change in firms, “ the draft contract I sent you several m onths ago is no longer relevan t. ” This s ta t e ment r evoked any previous offer by Morgan Verka mp to represent Epp in conjunction with D&D. Since the previous offer had not been acc epted at that point, the offer could be freely revo ked, which it was. See i d. 

### {¶40} Morgan subsequently emailed Epp to sugges t 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 sufficientl y specif i c to allow a meeting of the minds with regard to D&D ’ s role. Mor e o ver, no par ty

— not D&D or Epp

— followed up on Morgan ’ s suggestion of negot iating the prior draftOHIO FIRST DISTRICT COURT OF APPEALS

14 agreeme nt. A s a result, we find no of fer and accept ance between D&D and M o rgan V erkamp s u fficient to form a written contract. 

### {¶41} While D&D argues th at the partie s ’ representation of Epp w as to be undertaken with the same terms present in the Vande rslice and Galmi ne s actions, the complaint fails to delineate any writing, or combination of writing s , that se ts fo rth those terms with respect to Epp and es tablishes an a c ceptance by Epp of those terms. We ther efore hold that the complaint fail ed to establish the exis tenc e of a n enforceable
written con tr act and th at the trial court did not err in dismi s sing this claim under Civ.R. 12(B)(6)

.

C. The Complai

nt Did Not De s c ribe an Oral Contract


### {¶42} I n addition to suing for breach of a written contract, D&D al s o advances a breac h of contract theory premise d on the existence of an oral contract.
An ora l agreeme nt may be enforceable provided there is sufficient part icularity to
f o rm a binding contrac t

. Kodu v. Medarametl a , 1 st Dist. Hamilton No. C

- 160319,
2016

- Ohio

- 8020, ¶ 9
. The com plaint, however, fails to identify the existence of any oral a greemen t betwee n the parties regarding Epp ’ s representation and touche s only on the w ritten communication alleged to form a contract in this case

. 

### {¶43} B ecause , even accepting all allegations in the complaint as true, the complaint fail ed to establ ish the existence of a n oral co nt ract, it failed to state a claim upon which reli ef could b e g r a nted , and the trial court did not err in dismissing D&D ’ s claim f or breach of an oral contract.OHIO FIRST DISTRICT COURT OF APPEALS

15 2. Breach of a Contract Implied in Fact


### {¶44} I n addition to its claims f or breach of written and oral contra ct s , D &D also alleges a breach of a contract i mplied i n fa c t

. T he compla int contains the same allegations in su pport of th is clai m 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 lim i tations peri o d because we find that the c omplaint fails

to e stablish the ex istence of a contrac t 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
- Ohi o - 817, 16 9 N. E

. 3d 270, ¶ 17 (1 st Dist.). Rather, “ the court must construe the facts and circumstances surrounding the offer and acceptance to determine the terms of the agree ment

. ” Id. , qu oting Linder v. Am. Natl . Ins. Co ., 155 Ohio App.3d 30, 2003

- Ohio

- 5 394, 798
N.E

. 2 d 1190, ¶ 18 (1st Dist.). A contract that is implied in fact “ hinges upon proof of all of the elements of a contract

. ” Akron v. B aum , 9 th Dist

. Summit No. 298 82, 2021
- Ohio

- 4150, ¶ 15

. In fact, “ [t ]he only difference between an express con t ract and a

c o n tract implie d in fact is on e of proof. The former is proved by words, the latter by acts, conduct, and circumstances

. ” J.S. Keate & Co. v. Barnett ’ s Car Wash , 1 st Dist. Hamilton No. C

- 920895 , 1994 Ohio App. LEXIS 100, 10 (Jan. 19, 1994). 

### {¶46} A g ain, accepti n g all allegations in the complaint as true and construing all inferences in the favor of D&D, we hold that t he compl aint in this case fails to establ ish th e existence of a valid contract implied in fact. To begin, D&D argues that its prior c ourse of cond uc t in referring V anderslice and Galmines to M o rgan Verkamp and re ceiving a fee award f or doing s o establishe s a cont ract with respect to Epp

. We dis agree. The fact that two other clients agreed to a shared fee arrangement betweenOHIO FIRST DISTRICT COURT OF APPEALS

16 D&D and Mo rgan Verkamp in their cases does not impl y that all clients referred by D&D wil l automatically do so. In fact, the existe nce of b lank l ines in the draft fee
agree ment for the percenta ges of the contingency to be app ortioned to each firm suggests an expect ation that th e attorneys will negotiate a personalized agreement

w ith e ach clie nt. T he back

- and

- forth emails between Morg an and E pp an d the absence of specifics w ith regard to D&D ’ s role only confirm th e lack of a n implied contract between M o rgan Verkamp and D&D as to f ee splitting. 

### {¶47} Moreover, e ven if t he allegations in the complain t concerning the parties ’ action s and the s urroundi ng circumstances could be used to establish the terms of a contract , and we do not hold that they do, t he y do not establish th at Epp accept ed any offer of a fee agreem ent containing those terms from both M organ V e rkamp and D&D. Because the alleged contrac t concerned the jo int legal
represe ntation of Epp and included a contin gency fee, it could not take effect without Epp ’ s appro val. See Pro f. Cond.R. 1.5 (c) (1). We acc ordingly hold tha t , with respec t to the claim for breach of a contrac t imp lied in fact, the complaint failed to set forth a claim upon which relief could be gra nted, and that the trial court did not err in dismissin g the clai m .
3. Unjust Enrichment


### {¶48} W i th res pect to the c laim for unj us t en richment, the complaint alleged that D&D co nferred a m onetary benefit on Morg an and Verkamp by r eferring Epp ’ s claim to them , that Morgan V e rkamp knew it was rec eiving a monetary benef it an d attemp te d to c onceal their work on Epp ’ s case from D&D , and that Morgan Verk amp
ret ained monetary benefits f rom D&D under circumstances in which it was unjust to do so.OHIO FIRST DISTRICT COURT OF APPEALS

17 

### {¶49} A plaintiff asserting a claim for un ju st enrichment must establish “ that (1) a benefit was co nferred by the plaintiff u pon the defendant; (2) th e defe ndant had knowledge of the benefit; and (3) the ben efit was retained by the defendant in circumstances where it would be unjust to do so without payment

. ” H elton v. Fifth Third Bank , 1 st Dist. Ham il ton No. C

- 210451, 2022
- Ohi o - 1023, ¶ 25. 

### {¶50} R.C. 2305 .07 se ts forth the st atute of limitations for an un just

e nrichment claim. Brown v. Fuk uvi USA Inc ., 2d Dist. Montgomery No. 29294, 2022

- Ohio

- 1608, ¶ 85. It provi des that such an action sha ll be brough t w ithin four years after the cause of action accrued . R.C. 2305.07(A). However, the editor ’ s notes t o R.C.

2 305.07 state : Acts 2021, SB 13, § 5 provides: “(A) For causes of action that are governed by division (A) of section 2305.07 of the R evised Code t ha t accrued prior to the eff ective date of this act, the pe riod of limitations shall be four years fro m the ef fective date o f this act or the expiration of the period of limitations in effect prior to the effective d ate of this act, whichever occurs first

. ”
See Tabbaa v. Nouraldin , 8 th Dist. Cuyahoga No. 110 737 , 2022
- Ohio

- 1172, ¶ 23

. As this court h as held , a claim for unjust enrichment is not subject to the discovery rule for statute

- of

- limitations purposes . Palm Beach Co. v. Dun and Bradst r eet, In c ., 1 0 6 Ohio App.3d 167, 175, 665 N.E.2d 718 (1 st Di st. 1995 )

. 

### {¶51} D&D ’ s unjust enrichment claim accrued prior t o the effective date of

2021 S

. B

. 13 ( “ S

. B

. 13 ” ) , which was June 16, 2021. Tabbaa at ¶ 23 . The ap plicable limitations period to this clai m is thu s t he earlier of four years f rom the effective date of S.B. 13, whi ch would be June 16, 2025, or th e expiration of the limitat ions period inOHIO FIRST DISTRICT COURT OF APPEALS

18 effect prior to the effective date of S.B. 13, which was six years. Id. at ¶ 24

. Under the latter timelin e, D&D ’ s un ju st enrichment claim ac cr ued in December of 2014, when Morgan V e rkamp s ettled Epp ’ s qui tam action and did not sha re any r ecovery obtained with D&D

. T he limitations period for th e claim therefore expired six yea r s from that date, which was Dec ember of 20 2 0 . A s December of 202 0 i s earlier than June 1 6,
2025, tha t is the peri od to be app lied to determine if the unjust enrichm ent claim wa s timely filed

. See Tab baa at ¶ 23 ; editor ’ s notes to R.C. 2305.07. 

### {¶52} D&D did not file its Ohio complaint un t il May 2 , 2 02 2. Because the limitati ons period for the u njust enri chme nt claim exp ired in De cember of 2020 , well before D&D f

iled its Ohio complaint , the claim was not timely. 

### {¶53} In a n effort to save its c laim, D&D conten d s that the doctrine of equitable t olling a ppl ie s to extend the statute of limitations. Th e equitable

- tolling do ctrin e “ is to be appli ed sparingly and on ly in e xception al circumstances. ” Roach v. Vapor Station Columbus, Inc ., 10 th Dist. Franklin No. 21AP

- 511, 2022
- Ohio

- 2106, ¶
8. To esta blish en tit le ment to equitable tollin g, a plaintiff must show that “ (1) he has dili gently pursued his rights, and (2) s ome ext raordina ry circumstance stood in his way and prevented timely filing

. ” Strot her v. Columbus , 10 th Dist. Franklin No. 22A P

7 , 2022
- Ohio

- 40 97, ¶ 29. Application of the doctrine of e quitable tolling “ is generally
l imited to circumstances in which a l itigant is inte ntionally misled or tricked into missing the filing deadline

. ” Roach at ¶ 8. 

### {¶54} Here, the complaint contains no evidence t hat D&D was i ntentionally misled or t ricked into mi ssing the filing deadli ne or tha t a n extraordinary
circumstance stoo d in D& D ’ s way to prevent tim ely filing of the complaint. Rather, after learni n g that Morgan Verkamp had represented Epp and obtained a recovery ,OHIO FIRST DISTRICT COURT OF APPEALS

19 D &D elected to file suit in two oth er jurisdictions prior to filing suit in Hamilton County. This was the product o f cal c ul ated decision

- making by D&D regarding the forum in which to file suit rather than an extraordinary circumstance that preve nted
D&D fr om timely pursuing its cla im in Ohio. Given this background , we declin e to apply the doctrine of equitable tolling to D&D ’ s unju st enri chment claim

. 

### {¶55} We accor dingly hold that t he trial court did not err in dismissing D&D ’ s claim for unjust enr ichment bec au se it was file d outside of the applicable limitations period

.
4. Quantum Meruit


### {¶56} D &D also sued on a theory of quantum meruit. As s et forth in the

com pl ai nt, this claim contends th at “ in t he event it is determined that there is no express or impli ed contr act b etween Plaintiff and Def en dants, Defendants unjustly received and ret ained compensation in the form of attorney f ees as alleged in the

c omplaint. ” The complaint further a lleges that Morg an Verk amp ’ s retention of such monetary benefits was ine quitable an d unjust, and t hat D&D wa s entitled to equitable relief base d on a quasi

- con tract with defen dants under the doctrine of quantum
meruit. 

### {¶57} A claim for quantum meruit is e ssentially the same as a claim for unjust enrichment. Univ. Hosp. v. Wells , 1 st Dist. Ha mi lton No. C

- 21 0132, 2021
- Ohio

- 3666, ¶ 11; Garb

- Ko, Inc. v

. Benderson , 10 th Dist. Franklin Nos. 12AP

- 430, 12 AP

- 474, 12A P

475 and 12AP

- 476, 2013

- Ohio

- 1249, ¶ 26 (re cognizing that the claims of unjust enrichment and quantum meruit share the same e ss ential el em ents but dif fer in the

c alculatio n of damages). Like the claim for unjust enrichment, D&D ’ s claim for quantum me ruit accrued in Dec ember of 2014 when Morgan Verkamp settled Epp’sOHIO FIRST DISTRICT COURT OF APPEALS

20 qui ta m action and did not share any recovery obtained with D&D

. Since th e compla int was filed on M ay 2, 2022, the claim for quantum meruit was filed outsid e of the applicable six

- year - lim itations period set forth in R.C. 2305.07. 2 

### {¶58} We therefore hold that the trial cou rt di d not err in dismissing the quantum

- meruit claim.

5. Pr om issory Estoppel


### {¶59} D &D ’ s co mplaint also contained a claim fo r promissory estoppel. In support of th is claim , D&D ’ s complaint relied on the s ame allega tions that wer e made in support of the clai m for breach of contrac t. It additi onally alleged t hat Morg an Ve rk amp should reasonably have expected D&D to rely on its promises regarding joint representation, that D&D r elied on Morgan Verkamp ’ s promises by referring clients like Epp to Morgan Verkamp instead of to other law firms, and t hat Morgan Verka mp is bo und b y its promises to D&D. 

### {¶60} Like the claim for breach of con tract, we need not det ermine whe ther the claim for p romi ssory estoppel was filed within the applicable limita tions period because we hold that , ac cepting all alleg ations in the complaint as true an d construing all inferences in favor of D&D, the complaint failed to sta te a claim upon which relief could be granted with re spect to this clai m. 

### {¶61} The elemen ts of a claim for promissory estoppel are: “1) a clear a nd unambiguous prom ise, 2) reli ance by the p arty to whom the promise is made, 3) the reliance must be reasonable a nd foreseeable, and 4) the party relying on the promi se

2 Because the quantum meruit claim ac crued pr io r t o the effective date of S.B. 13, like the claim for u njus t enrichment, the applicable limitations period fo r 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 l i mi t at ions period in effect prior to the effective date of S.B. 1 3
. Again, as wi th the claim for unjust enrichme nt, the earlier date is the expiration of the six

- year - limitation pe riod.OHIO FIRST DISTRICT COURT OF APPEALS

21 must ha ve been injured by the reliance.” Brown , 2d Dist. Montgomery No. 29294,

2022
- O hio

- 1608 , at ¶ 69 , quoting Mish ler v. H ale , 2014
- Ohio

- 5805, 26 N.E.3d 1260, ¶ 28 (2d Dist.)

. 

### {¶62} Much of o ur pr eviou s discussion as to why the complain t failed to state a claim for breach of contract up on which r elief could be granted is applicable to our

an alysis of the promi ssory estopp el claim as w ell. The complaint failed t o establish that Epp accepted any proposed terms of representation from both Morgan Verkamp and D&D. Morgan Verk amp and D &D may have dis cussed terms of their join t representation of o ther clients an d th e division o f any re cov er y, but the complaint does

n ot establish Epp ’ s as sent to joint repr esentation or to specific terms regardi ng D&D ’ s role in t he matter or share of any recover y . And , as discussed above, in the absence of approval from Epp as to Morg an Verk amp a nd D&D ’ s jo in t representation , there was no clear and unambiguous promi se from Morgan Verkamp to D&D to share any fees
it obtained. 

### {¶63} W e accor dingly hold that the trial court did not err in di smissing the claim for promissor y estoppel.

6. Fraudulent Concealm ent


### {¶64} T he las t claim asserted in D&D ’ s complaint is that of fraudul ent conceal ment. In support of this c laim, the complaint alleged that Morgan Verkamp had a duty to disc lose to D&D that it had undertaken representation o f E pp, and that
it concea led that ma terial f act w ith the inte ntion that D&D would rely on th e

c oncealment. I t further alleged that as a result of its reliance on Morgan Ve rkamp ’ s failure to disclose, D & D was prevented from di scove ring Mor gan Verk amp ’ s breach es.OHIO FIRST DISTRICT COURT OF APPEALS

22 

### {¶65} A claim for frau dulent conc ealment is su bject to the four

- year statute o f 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, I nc ., S .D.Ohio No. 3:07 cv156, 2008 U.S. Dis t. LE XIS 83158, 16 (Sept. 23, 2008)

. This sta tute provides that all causes of action for relief on the ground of fraud shall be broug ht within four years of the cause of action ac cruing. R.C. 2305.09 (C)

. 

### {¶66} If D &D ’ s cause of action for fraudulent co nceal men t a cc ru ed in 2010 when M o rgan Verk amp filed Epp ’ s qui tam action and failed to di sclose its representation of Epp to D&D, the li mit ations period e xpired i n 2014. If the cause of action accrued in 2016 when D&D learned of Morgan Ver kamp ’ s represent ation of Ep p, the limitations period exp ired in 20 20. Because the c laim for fraudulent

concea lment was filed outside of the limitation s pe riod using either date, we need not specifically determine when the cause of ac tion acc rued. 

### {¶67} Because it was filed o ut side of the s tatute of limitations, we h old that the trial court did not err in dismissing D&D ’ s claim for fr audulent concealment. The fir st assignment of error is accordingly overruled.

Concl usion


### {¶68} B ecause t he trial c ourt properly dismisse d all claims in D&D ’ s co mpl ai nt either because the compl aint failed t o state a claim upon wh ich relief could be granted or because the claims were filed ou tside of the applicable limitations period , we affirm the trial court ’ s judgmen t granting Morgan Verk amp ’ s motion to di smiss.
J ud gment affirmed.


### B ERGERON 

### , P.J., and W INKLER 

### , J. , concur .OHIO FIRST DISTRICT COURT OF APPEALS

23 Please n ote: The court has record e d its o w n entry on the date o f the release of this op inion

.