[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-Appellant,

 vs.

MORGAN VERKAMP, LLC,

FREDERICK M. MORGAN, JR.,

 and

JENNIFER M. VERKAMP,

 Defendants-Appellees.

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APPEAL NO. C-220478

TRIAL NO. A-2201568

 O P I N I O N.

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 DefendantsAppellees.
OHIO FIRST DISTRICT COURT OF APPEALS

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KINSLEY, Judge.

{¶1} This case marks the third attempt in as many jurisdictions by plaintiffappellant 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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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)
OHIO FIRST DISTRICT COURT OF APPEALS

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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

1 On 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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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.
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
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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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
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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. 22AP7, 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, 12AP475 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-yearlimitations 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.