Dalziel Dalzeal LLC v. Mellberg

1

DALZIEL DALZEAL LLC, d.b.a Dalziel Law Firm, CHARLES M. DALZIEL, JR., Plaintiffs-Appellants, v. JOSHUA MELLBERG et al., Defendants, DICKINSON WRIGHT PLLC, Defendant-Appellee.

No. 22-10625

United States Court of Appeals, Eleventh Circuit

February 7, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:21-cv-00377-MHC

Before WILSON, LUCK, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Plaintiff filed this action to collect unpaid fees incurred for legal services he provided to Chris Stanton, an individual who was named as a co-defendant with Joshua Mellberg in a Dekalb County defamation suit in 2014.^[1] Plaintiff voluntarily dismissed Mellberg from the action pursuant to a settlement agreement and the district court subsequently dismissed Plaintiff's claims against Dickinson Wright PLLC ("Dickinson Wright"), Mellberg's attorney in the Dekalb suit under Federal Rule 12(b)(6). Plaintiff appeals the Rule 12(b)(6) dismissal. After a careful review of the record and the briefing submitted by the parties, we AFFIRM.

BACKGROUND

This case arises from Plaintiff's representation of Chris Stanton in a Dekalb County defamation suit filed against Joshua Mell-berg in 2014. The suit involved allegedly defamatory statements Mellberg made in a press release. Stanton, the Dekalb County process server who distributed the press release, was named as Mell-berg's co-defendant. Dickinson Wright, via its partner David Bray, represented Mellberg in the DeKalb suit. Plaintiff, who at the time was affiliated with the law firm Gregory, Doyle, Calhoun and Rogers, LLC, was hired to represent Stanton in the suit. Plaintiff alleges in the complaint that Mellberg "individually through his attorneys and agents personally requested that [he] defend Stanton at the expense of himself" and his corporation Mellberg LLC.

According to Plaintiff, he performed a significant amount of work in the initial stages of the DeKalb suit. Mellberg instructed Plaintiff to bill his time for this work at $355 per hour which Plaintiff did. Pursuant to their billing arrangement Plaintiff sent Mell-berg an invoice in October 2014 for $28,812.78, representing the fees incurred for services provided to Stanton through that date. Mellberg did not contest the invoice, and he told Plaintiff he would pay it. However, no payment was forthcoming.

In June 2015, Plaintiff emailed Mellberg and Dickinson Wright about the outstanding invoice. Plaintiff stated in the email that it was his understanding Mellberg was responsible for paying the invoice. In response to Plaintiff's email, Mellberg likewise confirmed that he was responsible for payment. In a separate response Dickinson Wright attorney Bray explained to Plaintiff that Mell-berg was trying to get Dickinson Wright's and Plaintiff's invoices paid by Mellberg's insurance carrier, State Farm. Bray advised that he had suggested Mellberg make an immediate, partial payment to Plaintiff while awaiting a response from State Farm. But again, no payment was forthcoming. Plaintiff alleges that the delay hurt his standing with his own law firm and contributed to a mental health crisis that led to his hospitalization for depression.

When he returned to work after his release from the hospital, Plaintiff resumed his efforts to collect on Mellberg's outstanding invoice. In response to these efforts, Bray again affirmed to Plaintiff that Mellberg had acknowledged his responsibility for payment, and he told Plaintiff he would try to secure payment via Mellberg's new corporate counsel. Thereafter, Plaintiff sent an email to Dickinson Wright in which he offered to accept $25,000 to settle the unpaid invoice. Dickinson Wright did not accept the offer or otherwise agree to pay the $25,000, and Bray relayed to Plaintiff that he had communicated the offer to Mellberg, who apparently did not accept it either.

Meanwhile the Dekalb suit, having been dormant for some time, began to ramp up again at the end of 2016. Plaintiff claims he was required to participate in costly discovery during this phase of the suit, precipitating another email to Dickinson Wright in July 2017 requesting payment of fees in the amount of $48,161.05. Dickinson Wright advised Plaintiff that it would try to talk to Mellberg about the outstanding fees, and it directed Plaintiff to discuss the issue with David Robinson, an employee of Mellberg's. Again, no payment was forthcoming.

Despite not being paid, Plaintiff continued his representation of Stanton in the DeKalb suit. According to Plaintiff, he could not in good faith withdraw from representing Stanton, who was facing a claim of $14 million in damages, and he believed he could eventually sue for his fees and other damages caused by the nonpayment. Consequently, Plaintiff kept working on the DeKalb suit while simultaneously trying to collect his unpaid fees from both Mellberg and Dickinson Wright. During this time, Bray repeatedly acknowledged that Plaintiff should be paid by Mellberg, and he tried-unsuccessfully, and Plaintiff claims negligently-to arrange for such payment.

In March 2019, Plaintiff sent an email to Mellberg and Dickinson Wright stating that his fees and expenses, now totaling $150,000, were due immediately, and giving them notice of claims he planned to assert under the Georgia Fair Business Practices Act. A second email followed in August 2019, noting that no progress had been made on payment. Then, in January 2020, Plaintiff sent Mellberg and Dickinson Wright a statement of account indicating a balance owing of $197,000, with interest running at 1.5% per month and 18% per year if not paid within 30 days. In November 2020, Plaintiff sent Mellberg and Dickinson Wright a statement of account indicating a balance of $231,058.50. According to Plaintiff, interest is still running at 18% per year on the balance from December 2020 forward.

Plaintiff filed this action in January 2021, asserting a claim for fraud against Mellberg, a claim for negligence against Dickinson Wright, and claims for open account and account stated, promissory estoppel, and constructive fraud against both Mellberg and Dickinson Wright. Defendants moved to dismiss Plaintiff's complaint under Federal Rule 12(b)(6). Dickinson Wright argued that dismissal was warranted because Plaintiff failed to allege that Dickinson Wright promised or agreed to pay Stanton's legal fees and also because Plaintiff's claims were barred by the statute of frauds and the statute of limitations. Mellberg argued that Plaintiff's recovery of fees was barred by the statute of limitations and, moreover, that any fees should be paid to Plaintiff's former law firm rather than to Plaintiff himself.

While awaiting a ruling on the Rule 12(b)(6) motions, Plaintiff and Mellberg filed a separate, joint motion to dismiss the claims asserted against Mellberg with prejudice and to remove Mellberg from the case. The parties indicated in the motion that Plaintiff and Mellberg had settled their dispute. The court granted the motion and denied as moot Mellberg's pending Rule 12(b)(6) motion.

Thereafter, the district court granted Dickinson Wright's motion to dismiss Plaintiff's remaining claims pursuant to Rule 12(b)(6). First, the court held that Plaintiff had failed to assert a plausible claim against Dickinson Wright for open account or account stated because he did not allege a debt owed to him by Dickinson Wright, and the allegations and exhibits attached to the complaint made it clear that the debt at issue was owed by Mellberg rather than Dickinson Wright. Similarly, the court found that any promissory estoppel or constructive fraud claim against Dickinson Wright was precluded by the demonstrable lack of a promise or representation by Dickinson Wright to pay the fees Plaintiff incurred representing Stanton. Finally, regarding Dickinson Wright's alleged negligence, the court noted that Georgia's version of the "good Samaritan" rule, which requires a person who voluntarily undertakes a duty to exercise ordinary care in the undertaking, generally does not apply to the contractual obligation to pay a debt.

Plaintiff appeals the dismissal of his claims against Dickinson Wright. Plaintiff's appellate brief does not discuss or otherwise challenge the district court's ruling as to the negligence and constructive fraud claims asserted against Dickinson Wright in the complaint. As such, we find that Plaintiff has abandoned those claims on appeal, and we do not address them further. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) ("We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.").

As to his remaining claims, Plaintiff argues that: (1) he has sufficiently stated a claim against Dickinson Wright for open account and account stated pursuant to the requirements of O.C.G.A. §§ 9-11-84 and 9-11-104 and (2) the allegations in the complaint, taken as true and construed in Plaintiff's favor, state a claim for promissory estoppel under Georgia law.^[2] For the reasons discussed more fully below, we are unpersuaded by these arguments. Accordingly, we affirm the district court's dismissal of Plaintiff's complaint against Dickinson Wright in its entirety.

DISCUSSION

I. Standard of Review

We review the district court's dismissal of Plaintiff's complaint for failure to state a claim under Federal Rule 12(b)(6) de novo, accepting the facts asserted in the complaint as true and then determining whether those facts are sufficient to survive dismissal. See Jacob v Mentor Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022). The standard...