John W. Boyd, Jr. v. Kilpatrick Townsend & Stockton , 164 A.3d 72 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 15-CV-0692 & 15-CV-1043
JOHN W. BOYD, JR., APPELLANT,
V.
KILPATRICK TOWNSEND & STOCKTON, et al., APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAB-2782-14)
(Hon. Herbert B. Dixon, Jr., Trial Judge)
(Argued January 24, 2017 Decided July 20, 2017)
Keith Lively, for appellant.
Charles Davant IV, with John K. Villa, and Roy S. Awabdeh, Williams &
Connolly LLP, for appellee Kilpatrick Townsend & Stockton, LLP.
Alan L. Balaran for appellee Dennis M. Gingold.
Before THOMPSON and MCLEESE, Associate Judges, and BELSON, Senior
Judge.
Opinion for the court by Senior Judge BELSON.
Opinion by Associate Judge MCLEESE, concurring in part, and dissenting in
part, at page 24.
2
BELSON, Senior Judge: Appellant John W. Boyd, Jr., seeks reversal of trial
court orders granting motions to dismiss brought under Superior Court Rule 12
(b)(6) by appellees Kilpatrick Townsend & Stockton, LLP (Kilpatrick Townsend)
and Dennis M. Gingold (Gingold). Appellant argues that the trial court erred by
(1) dismissing his claims for unjust enrichment against both appellees as time-
barred; (2) dismissing his claim for quantum meruit (breach of an implied-in-fact
contract)1 against Gingold as time-barred; and (3) determining that appellant had
failed to state facts sufficient to establish a claim for breach of an implied-in-fact
contract against Kilpatrick Townsend.
In concluding that appellant‟s unjust enrichment claims against both
appellees and his breach of an implied-in-fact contract claim against Gingold were
time-barred, the trial court applied the “last rendition of services” test, which posits
that a claim accrues upon a plaintiff‟s last rendition of services to a defendant. On
1
In contrast to the trial court, we discuss quantum meruit and breach of an
implied-in-fact contract together as breach of an implied-in-fact contract because
the factual allegations of the complaint set forth a claim of breach of an implied-in-
fact contract. See New Econ. Capital, LLC v. New Mkts. Capital Grp., 881 A.2d
1087, 1095 (D.C. 2005) (“Quantum meruit may refer to an implied contractual or a
quasi-contractual duty requiring compensation for services rendered.”) (emphasis
added) (quoting Fred Ezra Co. v. Pedas, 682 A.2d 173, 176 (D.C. 1996)) (internal
quotation marks omitted).
3
appeal, appellant argues that the trial court should not have applied this test, and
asserts that the statute of limitations did not begin to run on his claims until the
benefit of his services was conferred upon appellees, which, he argues, took place
when appellees were awarded attorneys‟ fees in the underlying case. Under this
theory, the aforementioned claims would not be barred by the three-year statutes of
limitations for unjust enrichment and breach of an implied-in-fact contract.
We (1) affirm the trial court‟s dismissal of appellant‟s claim for breach of an
implied-in-fact contract against Gingold as time-barred; (2) affirm the trial court‟s
determination that appellant failed to state a claim for breach of an implied-in-fact
contract against Kilpatrick Townsend; (3) vacate the trial court‟s dismissal of
appellant‟s claims for unjust enrichment against both appellees as time-barred; and
(4) remand for further proceedings consistent with this opinion.
I.
We summarize the facts as they are stated in appellant‟s complaint.
Appellees Kilpatrick Townsend, an international law firm, and Gingold, a sole
4
practitioner, represented the Native American plaintiffs in Cobell v. Salazar,2 a
class action lawsuit against the United States Department of the Interior for
mismanagement of trust funds. In December 2009, the Cobell plaintiffs and the
plaintiffs in a separate class action lawsuit against the United States Department of
Agriculture concerning past discrimination against black farmers, Pigford v.
Vilsack,3 reached a joint settlement agreement with the Government. Appellant,
who was then President of the National Black Farmers Association, became
involved in Pigford by lobbying for minority farmers who had missed an earlier
filing deadline to be compensated under a consent decree.4 A second lawsuit was
filed on behalf of these late-filers, and through the efforts of appellant and many
others, was eventually combined with the other Cobell and Pigford litigants into a
2
No. 1:96-cv-01285-TFH (D.D.C., filed June 10, 1996) (“In re Indian Trust
Fund Litigation”).
3
No. 08-mc-0511-PLF (D.D.C., filed Aug. 8, 2008) (“In re Black Farmers
Discrimination Litigation”).
4
On April 14, 1999, the class members in Pigford reached an agreement on
the terms of a consent decree with the Government. “Approximately 65,000
individuals” missed the filing deadline to be compensated under the consent
decree, giving rise to the second lawsuit. Both the farmers who met the filing
deadline and the late-filers were eventually compensated pursuant to the same
congressional appropriation bill that compensated the Cobell class members.
5
joint settlement agreement. The settlement agreement compensating the Cobell
and Pigford plaintiffs required funding by a congressional appropriation.
On March 5, 2010, John Loving, a government relations advisor at
Kilpatrick Townsend, contacted appellant and requested his assistance in lobbying
for the passage of the Claims Resolution Act (CRA), the funding bill for the Cobell
and Pigford plaintiffs. Mr. Loving “asked [appellant] to use his extensive
contacts . . . to drum up the necessary support for the . . . legislation.” Appellant
and Mr. Loving did not discuss appellant‟s fees or any specific tasks to be
performed. Appellant also spoke with Geoffrey Rempel, an accountant the Cobell
plaintiffs hired, in order to coordinate lobbying efforts.
Soon thereafter, on June 1, 2010, appellant met Messrs. Rempel and Gingold
for lunch at the Laughing Man Tavern, a pub in the District of Columbia.
Appellant‟s complaint states that:
[During that lunch at the Laughing Man Tavern,
appellant] specifically told both Defendant Gingold and
Mr. Rempel that he expected to be paid for this efforts to
secure funding for the Cobell settlement. In response,
Defendant Gingold encouraged [appellant] to continue
working with and for Defendants. Defendant Gingold
never indicated to [appellant] at any time at the
6
restaurant, or at any subsequent time thereafter, that
[appellant] would not be compensated for his efforts. . . .
Every time [appellant] raised issues of compensation or
the amount of such compensation, Defendant Gingold
always indicated to him that compensation should not
concern him — clearly indicating to [appellant] that
payment would be forthcoming. Indeed, according to
Defendant Gingold, the issue of payment was not
whether [appellant] would be compensated, but when
Eloise Cobell would focus on the amount of
compensation for him. (emphasis omitted).
After the lunch meeting, appellant continued to lobby for passage of the
CRA, which President Obama signed into law on December 8, 2010. The
complaint alleged no further communications between appellant and appellees
after the bill was signed.5
II.
After appellant learned that the Pigford litigation team did not plan to pay
him for the services he allegedly rendered for them concerning the CRA‟s passage,
he filed a lawsuit against them on November 21, 2012, in the United States District
5
Appellant does not allege that he performed any work for appellees after
December 8, 2010.
7
Court for the District of Columbia.6 On August 2, 2013, the District Court
dismissed appellant‟s lawsuit, having concluded that his allegations of breach of an
implied-in-fact contract and quantum meruit failed to state a cause of action, as
they consisted largely of “naked allegations of verbal promises”7 and conclusory
statements “devoid of factual details.”8
On May 6, 2014, well after the District Court had dismissed his complaint
against the Pigford counsel, appellant filed his complaint against appellees in the
Superior Court of the District of Columbia. Subsequently, appellees filed motions
to dismiss for failure to state a claim upon which relief could be granted under
Super. Ct. Civ. R. 12 (b)(6). The trial court granted those motions in separate
orders on June 11, 2015.
6
See Complaint, Boyd v. Farrin, 958 F. Supp. 2d 232 (D.D.C. 2013) (Civ.
Case No. 12-01893 (RJL)). Appellant‟s lawsuit against the Pigford litigation team
“br[ought] three claims: breach of fiduciary duty, quantum meruit, and breach of
contract.” Boyd v. Farrin, 958 F. Supp. 2d 232, 235 (D.D.C. 2013).
7
Id. at 240.
8
Id. at 241. The District Court also dismissed Boyd‟s claim of breach of
fiduciary duty. Id. at 240.
 8
Regarding Gingold‟s motion to dismiss, the trial court determined that,
assuming appellant‟s allegations were true, he had sufficiently pled claims for
unjust enrichment and breach of an implied-in-fact contract. However, the trial
court determined that appellant‟s claims against Gingold were time-barred under
the “last rendition of services” test because appellant‟s work for Gingold had
ended, at the latest, on December 8, 2010, when President Obama signed the CRA
into law. The trial court noted that appellant had not “delivered a bill to the
defendants during the time period he lobbied for the passage of the CRA” or
“within a reasonable time after his services ended.” Indeed, the court observed,
appellant did not demand payment from appellees until April 28, 2014, when his
attorney sent a letter demanding payment accompanied by a draft copy of the
complaint that was filed in the Superior Court several days later. The court
rejected appellant‟s argument that his claims accrued when appellees received the
“benefit of his services” on the date they were awarded attorneys‟ fees on July 27,
2011.9
9
Throughout his complaint, appellant alleged that had he rendered his
services to benefit both the Cobell class members and appellees. He argued that
the benefit of his services was conferred to appellees when they were awarded
attorneys‟ fees on July 27, 2011. Although appellant did not specifically mention
July 27, 2011, in any of the counts in his complaint, he repeatedly referred to the
“benefit” of his services as being that appellees were awarded attorneys‟ fees. He
(continued . . .)
9
Regarding Kilpatrick Townsend‟s motion to dismiss, the trial court
concluded that appellant had presented, as he had regarding Gingold, sufficient
facts to state a claim for unjust enrichment against it; however, unlike appellant‟s
claim against Gingold, had not done so for breach of an implied-in-fact contract
because appellant had failed to adequately allege that Gingold or anyone else had
acted as an authorized representative of Kilpatrick Townsend with the authority to
bind it to an agreement. As with Gingold, the trial court concluded that appellant‟s
claim for unjust enrichment against Kilpatrick Townsend was time-barred under
the “last rendition of services” test. Appellant filed a timely notice of appeal.
III.
We address three questions: (1) whether the trial court erred in dismissing
appellant‟s unjust enrichment claims against both appellees as time-barred; (2)
whether the trial court erred in dismissing appellant‟s claim against Gingold for
breach of an implied-in-fact contract as time-barred; and (3) whether the trial court
___________________________
(. . . continued)
did not specifically allege in any of his counts, however, that appellees had
promised him that he would be paid for his services when they were awarded
attorneys‟ fees.
10
erred in dismissing appellant‟s claim against Kilpatrick Townsend for breach of an
implied-in-fact contract, largely on the basis that, contrary to appellant‟s
allegations, appellees did not maintain an agency relationship with one another
while working together on Cobell that provided Gingold with the authority to bind
Kilpatrick Townsend to an agreement with appellant.
We review a dismissal under Super. Ct. Civ. R. 12 (b)(6) de novo. Poola v.
Howard Univ., 147 A.3d 267, 276 (D.C. 2016). “Like the trial court, this court
accepts all of the allegations in the complaint as true, and must construe all facts
and inferences in favor of the plaintiff.” Murray v. Wells Fargo Home Mortg., 953
A.2d 308, 316 (D.C. 2008). We “[do] not consider matters outside the pleadings
unless [we] treat[] the motion as one for summary judgment.” Equal Rights Ctr. v.
Props. Int’l, 110 A.3d 599, 603 (D.C. 2015) (citing Grimes v. District of Columbia,
89 A.3d 107, 111 (D.C. 2014)). “[A] complaint must plead „enough facts to state a
claim to relief that is plausible on its face‟” such that the court may infer “„that
[the] defendant[s are] liable for the misconduct alleged.‟” Poola, 147 A.3d at 276
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Comer v. Wells
Fargo Bank, N.A., 108 A.3d 364, 371 (D.C. 2015)). We review de novo a question
concerning the “„expiration of the statute of limitations,‟” which “„is a question of
law.‟” Daniels v. Potomac Elec. Power Co., 100 A.3d 139, 143 (D.C. 2014)
11
(quoting Bailey v. Greenberg, 516 A.2d 934, 940 (D.C. 1986)). While “the accrual
of a cause of action is a question of law,” the accrual date is “a question of fact.”
Brin v. S.E.W. Inv’rs, 902 A.2d 784, 800 (D.C. 2006) (citation omitted). We will
not disturb a trial court‟s factual findings “unless they are clearly erroneous.”
Crescent Props. v. Inabinet, 897 A.2d 782, 790 (D.C. 2006) (citation omitted).
IV.
We turn first to determining whether the trial court erred in holding that
appellant‟s claims for unjust enrichment were time-barred and, if so, when these
claims actually accrued. This court reviews de novo the trial court‟s conclusion
regarding whether an unjust enrichment has occurred. Marsden v. District of
Columbia, 142 A.3d 525, 526 (D.C. 2016) (citing Kramer Assocs., Inc. v. Ikam,
Ltd., 888 A.2d 247, 254 (D.C. 2005)). An unjust enrichment occurs when “„(1) the
plaintiff conferred a benefit on the defendant; (2) the defendant retains the benefit;
and (3) under the circumstances, the defendant‟s retention of the benefit [without
paying] is unjust.‟” Peart v. District of Columbia Hous. Auth., 972 A.2d 810, 813
(D.C. 2009) (quoting News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218,
1222 (D.C. 2005)). While the benefit related to an unjust enrichment is “usually
money,” that rule is not absolute, and thus it is possible that appellees received the
12
benefit of appellant‟s work in another form. See Jordan Keys & Jessamy, LLP v.
St. Paul Fire and Marine Ins. Co., 870 A.2d 58, 63 (D.C. 2005).10 The limitations
period for an unjust enrichment claim begins to run “when the . . . last service has
been rendered and compensation has been wrongfully withheld.” News World
Commc’ns, Inc., 878 A.2d at 1219 (emphasis added); id. at 1223 (citing Baer v.
Chase in support of application of the last rendition of services test). Cf. Baer v.
Chase, 392 F.3d 609, 622-23 (3d Cir. 2004). See generally Zic v. Ital. Gov’t
Travel Office, 149 F. Supp. 2d 473 (N.D. Ill. 2001) (applying the last rendition of
services test).
In News World Communications, we expressly did not reach the question of
when the statute of limitations for the plaintiff‟s unjust enrichment claim would
have begun to run if she had rendered her last service to the defendant but had not
10
While the benefit in an unjust enrichment is “„usually money,‟” see
Falconi-Sachs v. LPF Senate Square, LLC, 142 A.3d 550, 556 (D.C. 2016)
(quoting Jordan Keys & Jessamy, LLP, 870 A.2d at 63), nothing in our case law
restricts the benefit of an unjust enrichment to being only money. For instance, we
have observed that a property interest can be considered the benefit stemming from
an unjust enrichment, see Gray v. Gray, 412 A.2d 1208, 1210 (D.C. 1980)
(observing that an individual can be unjustly enriched, for instance, from
“hold[ing] title to property”). Here, in addition to achieving a significant victory
for their clients when the CRA was signed into law, the appellees arguably also
gained a reputational benefit by being the attorneys of record in such a high-profile
case that resulted in the passage of a historic bill.
13
demanded and subsequently been refused payment. Id. at 1225 n.7. There, a
representative of the defendant newspaper explicitly told the plaintiff on April 4,
1995, that she would not be paid for her ideas pertaining to a weekly newspaper
supplement; however, she did not file suit until July 22, 1998. Id. at 1220. We
concluded that the statute of limitations for her unjust enrichment claim
commenced when her “last service ha[d] been rendered and compensation ha[d]
been wrongfully withheld.” Id. at 1219. However, in this case, appellant did not
send appellees an invoice during the time he rendered services for them or in the
40 months that elapsed after President Obama signed the CRA into law but before
he filed his lawsuit. Thus, assuming that appellant is entitled to compensation, the
question remains of when the withholding of that compensation became unjust.
We note, but need not pass upon, appellant‟s argument that July 27, 2011,
the date on which appellees were awarded attorneys‟ fees, was the date his unjust
enrichment claim accrued.11
11
That issue can be folded into the larger fact-bound question of when any
enrichment of appellees became unjust, and presented to the jury. We observe that
this argument was not properly raised in opposition to appellees‟ motions to
dismiss because appellant‟s complaint did not specifically allege that either (or
both) of appellees promised him he would be paid only after they were awarded
their attorneys‟ fees. Cf. Dolan v. McQuaide, No. 1060, 2016 WL 7235627, at *3-
(continued . . .)
14
There remains the question of what was a “reasonable amount” of time by
which appellant should have regarded the fact that appellees did not pay him for
his services to be a rejection of any such claim, and the related question of whether
or when such a failure ripened into unjust enrichment claim of appellees. These
questions are complicated by appellant‟s failure to make any express demand for
payment until he sent appellees a draft copy of his complaint in April 2014. They
are fact-bound questions that the trial court upon remand must resolve in the
___________________________
(. . . continued)
4 (Md. Ct. Spec. App. Dec. 14, 2016) (rejecting plaintiff‟s argument that an unjust
enrichment claim accrued once a jointly owned business became profitable). In his
complaint, appellant does not explicitly state the time that he expected to be paid;
instead, he merely refers to a vague conversation in which Gingold told him that
the Cobell litigation team would turn to the issue of his compensation once the
named plaintiff in Cobell decided the amount to which she believed he was
entitled. Appellant‟s alleged work for appellees involved his lobbying for passage
of an appropriation bill to fund a settlement agreement entered into by appellees‟
clients; it was not alleged that at any time his efforts were focused on aiding
appellees in obtaining their attorneys‟ fees. It can be argued that any attorneys‟
fees that appellees received were a collateral benefit resulting from appellant‟s
work, not its goal. Appellant‟s central argument is that he conferred a benefit on
appellees because his lobbying helped secure passage of the CRA, which was an
objective appellees sought for their clients. That suggests that appellees were
“enriched” on the day the CRA was signed into law. These are some of the matters
to be considered by the fact-finder in connection with appellant‟s claim of unjust
enrichment.
15
manner we describe below.12 See Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 283-
85 (D.C. Cir. 2009); George Wash. Univ. v. District of Columbia, 563 A.2d 759,
761 (D.C. 1989) (where necessary to enable meaningful appellate review, court of
appeals will remand to the trial court for further proceedings when additional
findings of fact are needed to resolve a controversy).
Accordingly, we vacate the trial court‟s grant of appellees‟ motions to
dismiss appellant‟s claims for unjust enrichment and remand for further
proceedings consistent with this opinion. At an appropriate point during those
proceedings, and unless other developments arise that obviate the need to do so,
the trial court shall have the jury make findings of fact as to the time after appellant
last rendered services by which he should reasonably be deemed to have demanded
payment for his services, plus the reasonable time thereafter within which
appellees should have responded to said demand, and thus determine when
appellant‟s cause of action for unjust enrichment accrued. The trial court can then
determine whether appellant filed his complaint within the applicable limitations
period for unjust enrichment claims. See D.C. Code § 12-301 (8) (2012 Repl.);
12
On remand, the trial judge may wish to bifurcate the jury‟s consideration
of the statute of limitations question from its consideration of the merits (if the
merits are reached), and have the jury consider these issues separately.
16
Boyd v. Kilpatrick Townsend & Stockton, LLP, 79 F. Supp. 3d 153, 158 n.3
(D.D.C. 2015) (three-year statute of limitations for unjust enrichment claims in the
District of Columbia). If the underlying facts are shown in further proceedings to
have been different from those appellant alleged in his complaint, the trial court
will have to make reasonable adjustments to the foregoing way of proceeding
consistent with this opinion.
This holding is consistent with News World Communications. In that case,
we concluded that an unjust enrichment claim accrues “when the plaintiff‟s last
service has been rendered and compensation has been wrongfully withheld.” News
World Commc’ns, 878 A.2d at 1219. The fact pattern in News World
Communications contained both a date on which the plaintiff last rendered her
services and a subsequent date on which the defendant refused to pay the plaintiff
for her work. Thus, it was appropriate to conclude that under those facts the
defendant newspaper‟s enrichment became unjust and a cause of action accrued
when it refused to pay the plaintiff. Here, in contrast, there was no demand for
payment and subsequent refusal to pay, and appellees‟ enrichment might not be
found to have become unjust on the day the CRA was signed into law, not only
because appellees may have had a reasonable time to respond before the
enrichment became unjust, but also because appellant‟s complaint alleges that he
17
still had an expectation on that date that he would be paid sometime later when the
named plaintiff in the underlying action decided the amount to compensate him.
V.
Next, we address the dismissal of appellant‟s claim for breach of an implied-
in-fact contract against Gingold. We have held that
„An implied-in-fact contract is a true contract, containing
all necessary elements of a binding agreement; it differs
from other contracts only in that it has not been
committed to writing or stated orally in express terms,
but rather is inferred from the conduct of the parties in
the milieu in which they dealt.‟
Jordan Keys & Jessamy, 870 A.2d at 62 (quoting Vereen v. Clayborne, 623 A.2d
1190, 1193 (D.C. 1993)). There is an implied-in-fact contract when: (1)
“„valuable services [were] rendered,‟” “„(2) for the person sought to be charged,‟”
“„(3) which services were accepted by the person sought to be charged, used and
enjoyed by him or her,‟” and “„(4) under such circumstances as reasonably notified
the person sought to be charged that the [person rendering the services] expected to
be paid by him or her.‟” Id. (second alteration in original) (quoting Vereen, 623
A.2d at 1193).
18
Assuming appellant had a colorable claim against Gingold for breach of an
implied-in-fact contract, it accrued on December 8, 2010, the day the CRA was
signed into law, because his work for appellees was to aid in securing the bill‟s
passage and, on that date, he could have demanded payment.13 Unlike a claim for
unjust enrichment, this claim accrued on December 8, 2010, and appellant was
entitled under the contract to be paid on that date. He does not allege that he
performed any work for appellees after that date. See Cunningham & Assocs. v.
Dugan, 909 A.2d 1001, 1002 (D.C. 1996) (“It is a long-established principle of law
that fees for services rendered, in the absence of an agreement to the contrary, are
due and payable at the time performance is completed or of breach by one of the
parties.”) (emphasis added); Sears, Roebuck & Co. v. Goudie, 290 A.2d 826, 830
(D.C.), cert. denied, 409 U.S. 1049 (1972).
Although we recognize that appellant may argue in connection with his
claim of unjust enrichment that appellees‟ enrichment did not become unjust until
the U.S. District Court awarded them attorneys‟ fees on July 27, 2011, one who
claims a simple breach of contract need not show that the enrichment is not unjust.
13
See, e.g., Pardue v. Ctr. City Consortium Schs. of Archdiocese of Wash.,
Inc., 875 A.2d 669, 679 (D.C. 2005) (payment can be demanded at the time a
contract is completed).
19
In this connection, we note that in appellant‟s complaint, he made no specific
allegation that appellees promised to pay him once they received their attorneys‟
fees, but instead alleged only that Gingold said that they would address the issue
once the named plaintiff decided the appropriate amount to pay appellant.
Appellant could have made a claim for the services he had rendered on the day the
CRA was signed into law.14 However, he did not file his complaint until May
2014, some 41 months later. Thus, we conclude that the trial court did not err in
the way that it applied the “last rendition of services” test to appellant‟s claim for
breach of an implied-in-fact contract against Gingold, and affirm the dismissal of
this claim as time-barred. See Dolan, 2016 WL 7235627, at *3-4; Rohter v.
Passarella, 617 N.E.2d 46, 52 (Ill. App. Ct. 1993) (statute of limitations began to
run as soon as plaintiff could have invoiced defendants and then sought relief in
court).
14
Application of the “discovery rule,” which appellant argues for in his
brief, would not be appropriate, because nothing in appellant‟s complaint suggests
that the alleged injury here was latent or that it required due diligence on
appellant‟s part to discover it. Under the “discovery” rule, a “cause of action
accrues „when the plaintiff[s] know[] or through the exercise of due diligence
should have known of the injury.‟” Ehrenhaft v. Malcolm Price, Inc., 483 A.2d
1192, 1201 (D.C. 1984) (quoting Burns v. Bell, 409 A.2d 614, 617 (D.C. 1979)).
20
VI.
Next, we address appellant‟s argument that the trial court erred in dismissing
his claim for breach of an implied-in-fact contract against Kilpatrick Townsend on
the basis that he had failed to allege adequately that Gingold or anyone else had
acted as Kilpatrick Townsend‟s authorized agent to bind it to an agreement with
appellant. Appellant relies principally on appellees‟ alleged actions as co-counsel
in representing the Cobell plaintiffs in the underlying litigation against the
Department of the Interior, an important part of which consisted of the allegation
that Gingold had a lunch meeting with appellant in which Gingold, allegedly acting
as both Kilpatrick Townsend‟s co-counsel and agent, urged appellant to assist the
Cobell litigation team in achieving its goals. If Gingold had possessed the
authority to act as Kilpatrick Townsend‟s agent, that would arguably have made
Kilpatrick Townsend a party to the contract implied-in-fact. Appellant argues that
Gingold, as “the actual and apparent agent of Kilpatrick [Townsend],” was
authorized to act on behalf of Kilpatrick Townsend, and thus he bound both of
them to the agreement to pay appellant for his lobbying services. For several
reasons, this argument fails.
21
First, appellees did not enter into an agency relationship merely by acting as
co-counsel in Cobell. Despite the facts that appellees worked together on the case
and Kilpatrick Townsend allowed Gingold to use some of its office space during
the course of the litigation, appellees acted in the service of their clients, not of
each other. See Henderson v. Charles E. Smith Mgmt., Inc., 567 A.2d 59, 62 (D.C.
1989) (agency relationship exists where “„one person authorizes another to act on
his [or her] behalf subject to his [or her] control, and the other consents to do so.‟”)
(alterations in original) (quoting Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982)
(citing Rose v. Silver, 394 A.2d 1368, 1371 (D.C. 1978)). Appellant does not
provide any legal authority suggesting that co-counsel for a party on a case
invariably enters into an agency relationship, and his conclusory allegations offer
no plausible reason why attorneys from separate firms or practices who work
together to represent a party in a single case should be considered as agents of one
another. See Railan v. Katyal, 766 A.2d 998, 1011 (D.C. 2001) (party asserting the
existence of an agency relationship must offer evidence showing that the purported
principal exercised control over the supposed agent). As evidence that appellees
maintained an agency relationship, appellant points out that “(1) [d]efendant
Gingold worked with [d]efendant Kilpatrick [Townsend] in managing and
litigating the Cobell matter, (2) [d]efendant Kilpatrick [Townsend] provided
Defendant Gingold an office to work from, and (3) both defendants
22
„micromanaged‟ the plaintiff‟s lobbying efforts.” These facts do not establish that
appellees were in an agency relationship — rather, such facts are some of the
hallmarks of a standard relationship between counsel from different practices
working together on litigation for the same client. Appellant‟s contention that
attorneys from different practices who act as co-counsel simultaneously enter into
an agency relationship also raises obvious and troublesome policy implications.15
We also note that other jurisdictions that have decided similar questions
regarding agency law have concluded that to establish an agency-style relationship
exists it must be clear that, among other factors, “each [party is entitled] to direct
and govern the policy [and] conduct of the other member[]” and has “a right to
joint control and management of [any] property used in the enterprise.” Thompson
15
If appellant‟s argument about what constituted an agency relationship
actually represented the state of the law, it would severely misread agency law and
could have a chilling effect on the ability and willingness of co-counsel to work
together to represent a client. Every time co-counsel entered into a joint
representation, they would be concerned about exposing themselves to liability for
third-party obligations of which they had no prior knowledge. Here, there is no
evidence that appellees (1) agreed to be general partners of one another, (2) formed
any type of permanent relationship beyond acting as co-counsel in Cobell, or (3)
maintained a mutual authority to control one another‟s behavior or bind one
another to contracts. See Eastbanc, Inc. v. Georgetown Park Assocs. II, LP, 940
A.2d 996, 1004 (D.C. 2008) (to establish a joint venture, parties must express a
mutual “intent to be bound”).
23
v. Hiter, 826 N.E.2d 503, 510 (Ill. App. Ct. 2005) (citations omitted); see Blondell
v. Littlepage, 991 A.2d 80, 91 (Md. 2010) (“„The mere sharing of profits [as co-
counsel] is not in itself sufficient to create a partnership.‟”) (quoting M. Lit, Inc. v.
Berger, 170 A.2d 303, 306 (Md. 1961)). We perceive no error in the trial court‟s
conclusion that the complaint did not adequately allege that appellees here were in
an agency relationship. While appellees collaborated on case strategy and agreed
to a profit-sharing plan, appellant‟s argument that they essentially formed a joint
venture based on these acts fails because appellant‟s complaint did not allege that
appellees: (1) retained the ability to control each other‟s conduct; (2) maintained
ownership of one another‟s business property; (3) indicated in any manner that
they intended their professional cooperation to extend beyond litigating Cobell; or
(4) owed any special duties or obligations to one another that suggested the
existence of a joint venture. See Wash. Inv. Partners of Del., LLC v. Sec. House.,
K.S.C.C., 28 A.2d 566, 578 (D.C. 2011) (“„[M]embers [of a joint venture] must
have the intent to form [such a] relationship.‟”); Eastbanc, 940 A.3d at 1004.
On these bases, we conclude that the trial court did not err in determining
that the complaint did not adequately allege that appellees maintained an agency
relationship with one another. Accordingly, because Gingold did not possess the
authority to bind Kilpatrick Townsend to a contractual obligation, and because
24
appellant fails to allege any other basis upon which Kilpatrick Townsend breached
an implied-in-fact contract with appellant, the trial court did not err in determining
that appellant failed to state a claim for breach of an implied-in-fact contract
against Kilpatrick Townsend.
Accordingly, we (1) affirm the trial court‟s dismissal of appellant‟s claim for
breach of an implied-in-fact contract against Gingold as time-barred; (2) affirm the
trial court‟s determination that appellant failed to state a claim for breach of an
implied-in-fact contract against Kilpatrick Townsend; (3) vacate the trial court‟s
dismissal of appellant‟s claims for unjust enrichment against both appellees as
time-barred; and (5) remand for further proceedings consistent with this opinion.
So ordered.
MCLEESE, Associate Judge, concurring in the judgment in part and
dissenting in part: Although I agree with the court‟s decision to vacate the
dismissal of Mr. Boyd‟s claim of unjust enrichment, I would also vacate the
dismissal of Mr. Boyd‟s other claims. I therefore respectfully dissent in part.
25
As the court notes, a motion to dismiss must be denied as long as the
complaint “state[s] a claim to relief that is plausible on its face.” Poola v. Howard
Univ., 147 A.3d 267, 276 (D.C. 2016) (internal quotation marks omitted). “If a
complaint‟s factual allegations are sufficient, the case must not be dismissed even
if the court doubts that the plaintiff will ultimately prevail.” Id. (internal quotation
marks omitted). The trial court dismissed Mr. Boyd‟s claim of breach of implied-
in-fact contract against Kilpatrick Townsend on the ground that Kilpatrick
Townsend “was not advised about [Mr. Boyd‟s] expectation to be paid for his
lobbying services.” The court affirms that ruling on the somewhat different ground
that the complaint did not adequately allege that Kilpatrick Townsend‟s co-
counsel, Mr. Gingold, was acting as an agent for Kilpatrick Townsend. Ante at 23.
I would vacate the dismissal. The complaint alleges that (1) an employee of
Kilpatrick Townsend asked Mr. Boyd to help get congressional funding for a
settlement that would benefit Kilpatrick Townsend‟s clients in the Cobell
litigation; (2) at various points, Mr. Boyd was given direction by Kilpatrick
Townsend, Mr. Gingold, and an accountant also working on the Cobell litigation;
(3) Mr. Boyd repeatedly included Kilpatrick Townsend in emails reporting on his
efforts; (4) Mr. Boyd told Mr. Gingold and the accountant that he expected to paid
for his efforts, and he was assured that he would eventually receive such payment;
and (5) Kilpatrick Townsend provided an office to Mr. Gingold during the course
26
of the Cobell litigation. In my view, these allegations make it at least plausible
either that Kilpatrick Townsend was informed of Mr. Boyd‟s expectation of
payment or that Mr. Gingold was authorized by Kilpatrick Townsend to deal with
Mr. Boyd. I would therefore vacate the trial court‟s ruling that Mr. Boyd failed to
state a plausible claim of breach of implied-in-fact contract against Kilpatrick
Townsend sufficient to permit the claim to proceed to discovery.
The trial court also dismissed all of Mr. Boyd‟s claims as barred by the
statute of limitations. This court affirms that ruling with respect to Mr. Boyd‟s
claims of quantum meruit and implied-in-fact contract. Ante at 2 n.1, 17-19. I
would vacate as to those counts. The contention that a claim is barred by the
statute of limitations is a defense, and Mr. Boyd‟s complaint therefore was not
required to contain any factual allegations on the topic. See, e.g., Daniels v. Pepco,
100 A.3d 139, 143 (D.C. 2014). Moreover, the trial court should not dismiss a
claim on statute-of-limitations grounds unless the claim is time-barred on the face
of the complaint. Logan v. LaSalle Bank Nat’l Ass’n., 80 A.3d 1014, 1020 (D.C.
2013) (citing cases). The court appears to conclude that Mr. Boyd‟s claims of
quantum meruit and implied-in-fact contract are barred on the face of the
complaint because, as a matter of law, those claims accrued in December 2010,
27
when Mr. Boyd completed his work and therefore could have demanded payment.
Ante at 17-19. I do not agree.
At the outset, I note that although the court treats Mr. Boyd‟s quantum-
meruit claim as equivalent to a claim of breach of implied-in-fact contract, ante at
2 n.1, it is not clear to me that those two claims are equivalent, either in the
complaint or in general. Compare, e.g., New Econ. Capital v. New Markets
Capital Gp., 881 A.2d 1087, 1095 (D.C. 2005) (breach of implied-in-fact contract
is one type of quantum-meruit claim but requires that true contract, with all
necessary elements, can be inferred) Vereen v. Clayborne, 623 A.2d 1190, 1193
(D.C. 1993) (reiterating above, but listing elements of breach of implied-in-fact
contract that (a) do not seem to require that true contract can be inferred and (b)
seem very similar to elements of unjust enrichment; also, treating unjust
enrichment as type of quantum-meruit claim (quasi-contract or contract implied in
law)). The precise relationship among Mr. Boyd‟s claims may merit further
consideration on remand. In any event, I will separately discuss quantum meruit
and breach of implied-in-fact contract.
28
It is not clear to me as a matter of law that Mr. Boyd‟s quantum-meruit
claim accrued at the time Mr. Boyd stopped rendering services in December 2010.
Mr. Boyd contends that it was understood that he would not be compensated until
some point after his services were rendered. Although the court appears to fault
Mr. Boyd for failing to include that contention in his complaint, ante at 13-14 n.11,
Mr. Boyd was not required to address statute-of-limitation issues in his complaint.
Daniels, 100 A.3d at 143. Moreover, there is authority for the sensible principle
that the statute of limitations on a quantum-meruit claim does not begin to run until
payment would reasonably be expected. See Lamajak, Inc. v. Frazin, 230 S.W.3d
786, 796 (Tex. App. 2007) (“Frazin‟s services were not of such a nature that there
was an implied condition of payment at certain intervals after which limitations
would begin to run. Indeed, the record is replete with testimony that Frazin did not
expect to be paid until he had worked the entirety of 1998 and Lamajak‟s profits
for that year had been calculated. Frazin‟s claim is based on Lamajak‟s failure to
pay him after its profits for 1998 were determined. Thus, the earliest date his
[quantum meruit] claim could have accrued is January 1, 1999.”).
Contrary to the court‟s suggestion, ante at 18, the principle that the statute of
limitations on a quantum-meruit claim does not begin to run until payment would
reasonably be expected is supported rather than undermined by our decision in
29
Cunningham & Assocs. v. Dugan, 909 A.2d 1001 (1996). In that case we held that
a breach-of-contract claim was barred by the statute of limitations, which began to
run when all services had been rendered and the plaintiff had billed the defendant
for those services. Id. at 1002 & n.2. In reaching that conclusion, however, we
noted that if there is “an agreement to the contrary,” fees for services are not
necessarily due at the time performance is completed. Id. at 1002. Mr. Boyd‟s
argument is that there was such an agreement in this case, and I see no basis for
concluding that Mr. Boyd‟s contention is foreclosed on the face of the complaint.
The two out-of-jurisdiction cases cited by the court also do not support dismissal of
Mr. Boyd‟s quantum-meruit claim. Dolan v. McQuaide, No. 1060, 2016 WL
7235627 (Md. Ct. Spec. App. Dec. 14, 2016), is an unjust-enrichment case that
went to trial, and the court‟s definitive adoption of a “last rendition of services”
approach is inconsistent with the court‟s decision in this case to remand the unjust-
enrichment count for further inquiry into when any enrichment of Mr. Gingold and
Kilpatrick Townsend became unjust. Ante at 11-17. Rohter v. Passarella, 617
N.E.2d 46 (Ill. App. Ct. 1993), is a quantum-meruit case, but in that case the court
relied upon evidence introduced at trial that the prior history between plaintiff and
defendant established that plaintiff “was entitled to be paid annually upon
completion of his tax services for each tax year. Furthermore, nothing in the
30
record indicates that plaintiff acted in such a way after that date which would
inform defendants that the old rule had changed . . . .” Id. at 52.
Finally, it is also not clear to me as a matter of law that Mr. Boyd‟s claim for
breach of implied-in-fact contract accrued at the time Mr. Boyd stopped rendering
services in December 2010. “An action for breach of contract generally accrues at
the time of the breach.” Wright v. Howard Univ., 60 A.3d 749, 751 (D.C. 2013).
Given that Mr. Boyd apparently did not demand payment until 2014, and given
Mr. Boyd‟s contention that there was an understanding that payment would be
delayed, I do not see any basis for holding as a matter of law that Mr. Gingold and
Kilpatrick Townsend breached any implied contractual agreement in December
2010. See generally, e.g., 54 C.J.S. Limitations § 145 (2017 update) (“As a
general rule, where a definite liability arises on a day certain, a default at the time
creates a cause of action and the statute of limitations begins to run without
demand. Likewise where the right has fully accrued except for some demand
which is merely a preliminary step to pursuing the remedy, the making of such
demand is not necessary to set the statute of limitations running against the
obligation. However, where a demand is not merely a request preliminary to a
remedy or to the bringing of an action, but is necessary to create a cause of action,
the cause of action does not accrue until such a demand has been made, and the
31
statute runs only from such demand unless the demand is waived or unreasonably
delayed.”) (citing cases; footnotes omitted); Autonation, Inc. v. Susi, 199 So. 3d
456, 459 (Fla. Dist. Ct. App. 2016) (“Where an agreement does not specify the
time for payment or provides for an indeterminate or indefinite time, the law
implies that payment will be made within a reasonable time.”) (internal quotation
marks omitted).