Dalziel Dalzeal LLC, et al. v. Dickinson Wright PLLC

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10625
Non-Argument Calendar
____________________
DALZIEL DALZEAL LLC,
d.b.a Dalziel Law Firm,
CHARLES M. DALZIEL, JR.,
Plaintiffs-Appellants,
versus
JOSHUA MELLBERG et al.,
Defendants,
DICKINSON WRIGHT PLLC,
Defendant-Appellee.
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2 Opinion of the Court 22-10625
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-00377-MHC
____________________
Before WILSON, L UCK , and J ULIE 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 dis-
trict court subsequently dismissed Plaintiff’s claims against Dickin-
son 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.
1 The complaint names two plaintiffs: Dalziel, Dalzeal LLC and Charles Dal-
ziel. The two plaintiffs have identical interests relative to this appeal. Accord-
ingly, we refer to Dalziel, Dalzeal, LLC and Charles Dalziel collectively as
“Plaintiff.” Likewise, we refer to Joshua Mellberg, named as an individual, and
his corporate affiliate Joshua David Mellberg, LLC, as “Mellberg.”
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BACKGROUND
This case arises from Plaintiff’s representation of Chris Stan-
ton 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 pro-
cess 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 Rog-
ers, 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 ex-
pense 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 Plain-
tiff 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 con-
firmed that he was responsible for payment. In a separate response,
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4 Opinion of the Court 22-10625
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 hospi-
tal, Plaintiff resumed his efforts to collect on Mellberg’s outstand-
ing invoice. In response to these efforts, Bray again affirmed to
Plaintiff that Mellberg had acknowledged his responsibility for pay-
ment, 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 of-
fer or otherwise agree to pay the $25,000, and Bray relayed to Plain-
tiff that he had communicated the offer to Mellberg, who appar-
ently 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. Dick-
inson Wright advised Plaintiff that it would try to talk to Mellberg
about the outstanding fees, and it directed Plaintiff to discuss the
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22-10625 Opinion of the Court 5
issue with David Robinson, an employee of Mellberg’s. Again, no
payment was forthcoming.
Despite not being paid, Plaintiff continued his representa-
tion 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 non-
payment. 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 Dick-
inson 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 Decem-
ber 2020 forward.
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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, promis-
sory estoppel, and constructive fraud against both Mellberg and
Dickinson Wright. Defendants moved to dismiss Plaintiff’s com-
plaint under Federal Rule 12(b)(6). Dickinson Wright argued that
dismissal was warranted because Plaintiff failed to allege that Dick-
inson 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 re-
covery of fees was barred by the statute of limitations and, moreo-
ver, that any fees should be paid to Plaintiff’s former law firm ra-
ther than to Plaintiff himself.
While awaiting a ruling on the Rule 12(b)(6) motions, Plain-
tiff 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 mo-
tion 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 ac-
count stated because he did not allege a debt owed to him by Dick-
inson Wright, and the allegations and exhibits attached to the com-
plaint made it clear that the debt at issue was owed by Mellberg
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22-10625 Opinion of the Court 7
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 in-
curred 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 volun-
tarily undertakes a duty to exercise ordinary care in the undertak-
ing, 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 con-
structive 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 man-
ner 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 ac-
count 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 com-
plaint, taken as true and construed in Plaintiff’s favor, state a claim
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8 Opinion of the Court 22-10625
for promissory estoppel under Georgia law.2 For the reasons dis-
cussed 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 com-
plaint 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 deter-
mining whether those facts are sufficient to survive dismissal. See
Jacob v. Mentor Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022).
The standard governing that inquiry, which was set forth by the
Supreme Court in Bell Atlantic Corporation v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), requires that a com-
plaint “allege facts sufficient to raise a right to relief above the spec-
ulative level [and] . . . state a claim to relief that is plausible on its
face.” Id. (quotation marks and citation omitted).
When evaluating a Rule 12(b)(6) motion, the court may con-
sider exhibits attached to the complaint. See Turner v. Williams, 65
F.4th 564, 583 n.27 (11th Cir. 2023) (“[C]ourts . . . consider the four
corners of a complaint and the complaint’s attached exhibits when
analyzing a Rule 12(b)(6) motion to dismiss.”). Furthermore, and
relevant here, “when the exhibits contradict the general and con-
clusory allegations of the [complaint], the exhibits govern.” Griffin
2 The parties agree that Georgia law applies to this diversity action.
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22-10625 Opinion of the Court 9
Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). See also
Turner, 65 F.4th at 583 n.27 (“[A] litigant may be defeated by his
own evidence, the pleader by his own exhibits when he has pleaded
too much and has refuted his own allegations by setting forth the
evidence relied on to sustain them.” (quotation marks and citation
omitted)).
II. Analysis
A. Open Account and Account Stated
Under Georgia law a plaintiff can assert a claim for “open
account” or “account stated” to collect payment for goods or ser-
vices he has provided to the defendant “where the price of such
goods or services has been agreed upon and where it appears that
the plaintiff has fully performed its part of the agreement and noth-
ing remains to be done except for the [defendant] to make pay-
ment.” Altacare Corp. v. Decker, Hallman, Barber & Briggs, P.C., 316
Ga. App. 718, 719 (2012) (quotation marks omitted and alteration
adopted). The claims are slightly different. An open account is an
account that “has not been finally settled or closed, but is still run-
ning or open to future adjustment or liquidation.” Id. An open
account becomes an account stated when the parties “fix the
amount due” and the indebted party “promises payment of the bal-
ance.” Kay Solar Sys., Inc. v. Rome Printing Co., 160 Ga. App. 825,
826 (1982). But both types of claims require (1) an agreement by
the defendant to pay the plaintiff for the goods or services provided
and (2) assent by the parties to the price and other essential terms
of the agreement. See id. (defining an account stated in terms of an
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10 Opinion of the Court 22-10625
agreement for the payment of a fixed amount); Altacare, 316 Ga.
App. at 719 (noting that suit on an open account is not available
where there is a dispute as to “assent to the services” or other terms
of the contract). See also Z-Space, Inc. v. Dantanna’s CNN Center, LLC,
349 Ga. App. 248, 251 (2019) (“Agreement as to the amount and a
promise to pay are essential requisites” of a suit on account.).
Applying the above principles, the district court correctly
held that Plaintiff did not plausibly state a claim against Dickinson
Wright for either open account or account stated. Plaintiff states
in the complaint that it was Mellberg, rather than Dickinson
Wright, who agreed to pay and undertook financial responsibility
for representing Stanton in the DeKalb suit. Indeed, Plaintiff spe-
cifically alleges that “Mellberg individually through his attorneys
and agents personally requested that [he] defend Stanton at the ex-
pense of himself and Mellberg LLC.” Plaintiff acknowledges fur-
ther in the complaint that he sent his initial invoices to Mellberg,
per the agreement between the parties that Mellberg would pay
the fees.
The exhibits attached to the complaint confirm that the
agreement between the parties called for Mellberg, rather than
Dickinson Wright, to pay Plaintiff’s fees. For example: (1) in an
October 2014 email attached to the complaint as Exhibit A, Plaintiff
confirms that Wellberg was financially responsible for Stanton’s
representation, (2) a June 2015 email attached as Exhibit B likewise
reflects Plaintiff’s understanding that Mellberg was responsible for
the fees, (3) a March 2016 email attached as Exhibit I states that
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22-10625 Opinion of the Court 11
Plaintiff was “assured several times by phone and email early on
that Josh David Mellberg, LLC” would pay the fees for defending
Stanton, and (4) in a March 2019 email attached as Exhibit K, Plain-
tiff references “the fees J.D. Mellberg promised to pay [him] for
defending Chris Stanton” in the DeKalb suit. All these exhibits, as
well as Plaintiff’s own allegations, directly contravene Plaintiff’s at-
tempt to recover his legal fees directly from Dickinson Wright
based on an open account or account stated theory.
Contrary to the recitation of Georgia law set out above,
Plaintiff argues on appeal that he did not need to allege that Dick-
inson Wright agreed to pay Stanton’s legal fees to recover on an
open account or account stated theory. According to Plaintiff, he
stated a plausible claim under both theories by filing a complaint
that complied with the form set out in O.C.G.A. § 9-11-104, a Geor-
gia statute that provides a template for asserting a claim on an ac-
count.
We are not persuaded. The Georgia statute cited by Plaintiff
creates a simplified procedure to collect on an unpaid account. See
O.C.G.A. § 9-11-84 (noting the “simplicity and brevity” of a claim
on account as contemplated by O.C.G.A. § 9-11-104). But an agree-
ment to pay for the goods or services charged to the account is an
essential prerequisite to recovery under that procedure. Z-Space,
349 Ga. App. at 251. See also Scott v. Prestige Fin. Serv., Inc., 345 Ga.
App. 530, 532 (2018) (“A suit on account must be based either on
an express or an implied contract.”). Indeed, as explained above, a
plaintiff cannot recover on an open account or account stated claim
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12 Opinion of the Court 22-10625
if there are any substantive issues to be resolved about the debt at
issue. See Altacare, 316 Ga. App. at 719. Obviously, a dispute about
whether the party against whom the claim is asserted has an obli-
gation to pay the debt on the account would constitute just such a
substantive issue.
Plaintiff suggests in his appellate brief that his complaint
does allege an agreement by Dickinson Wright to pay his fees. In
support of this argument, Plaintiff cites a few paragraphs in the
complaint that vaguely—perhaps intentionally so—assert that “de-
fendants” engaged Plaintiff to defend Stanton and represented that
“they” would pay his fees for doing so. Leaving aside the vague-
ness of the allegation and the oddity of an arrangement in which
two entities would agree to pay substantial legal fees without any
specification of how that debt would be apportioned, we will as-
sume that Plaintiff has alleged that Mellberg and Dickinson Wright
jointly promised to pay for Stanton’s representation in the DeKalb
suit. But even assuming that the vague statements cited by Plaintiff
are sufficient to allege some sort of undefined joint payment ar-
rangement, they are superseded by the numerous exhibits to the
complaint discussed above, which clearly establish that Mellberg—
rather than and not in addition to—Dickinson Wright agreed to
pay for Stanton’s representation in the DeKalb suit and undertook
financial responsibility for Plaintiff’s fees incurred therein. See Grif-
fin, 496 F.3d at 1206.
In short, Plaintiff’s claims for open account and account
stated fail because Plaintiff does not allege, and the exhibits
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22-10625 Opinion of the Court 13
attached to the complaint conflict with any purported allegation,
that Dickinson Wright agreed to pay for the legal services Plaintiff
provided to Stanton and thereby was obligated to pay the fees in-
curred on an account, open or stated. At most, Dickinson Wright
attempted to persuade Mellberg—its client and the party that in
fact undertook responsibility for Stanton’s representation—to ful-
fill its obligation to pay Plaintiff’s fees. That attempt does not
equate to a promise by Dickinson Wright to directly pay Plaintiff,
the absence of which forecloses Plaintiff’s claims against Dickinson
Wright for open account or account stated.
B. Promissory Estoppel
Plaintiff’s promissory estoppel claim against Dickinson
Wright fails for the same reason: that is, he cannot allege a promise
by Dickinson Wright to pay the legal fees he is attempting to collect
in this action. Georgia has codified the doctrine of promissory es-
toppel. See O.C.G.A. § 13-3-44. Pursuant to the relevant statute,
the essential elements of a promissory estoppel claim include,
among other things: (1) a promise by the defendant, (2) upon
which the defendant should reasonably have expected the plaintiff
to rely, and (3) the plaintiff’s reliance on the promise to his detri-
ment. Id. See also Hendon Properties, LLC v. Cinema Dev., LLC, 275
Ga. App. 434, 438 (2005) (setting out the essential elements of a
promissory estoppel claim under O.C.G.A. § 13-3-44).
As evidenced by Plaintiff’s allegations and the exhibits to the
complaint cited above, Plaintiff cannot plausibly allege the first el-
ement as to Dickinson Wright. Plaintiff expressly acknowledges in
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14 Opinion of the Court 22-10625
several paragraphs of the complaint that it was Mellberg, and not
Dickinson Wright, who undertook financial responsibility for Stan-
ton’s legal representation and promised to pay Plaintiff’s fees in
that regard. Numerous exhibits to the complaint likewise confirm
that was the agreed-upon arrangement.
As with his open account and account stated claims, Plaintiff
argues in support of the promissory estoppel claim that his com-
plaint sufficiently alleges that Dickinson Wright engaged him and
promised it would pay his fees as part of a joint payment agree-
ment. Again, Plaintiff bases this argument on vague statements in
the complaint suggesting that the “defendants” collectively en-
gaged Plaintiff to defend Stanton and represented that Stanton’s de-
fense would be at “their” expense and acknowledged that Plaintiff
“should be paid.”
Such vague promises generally cannot sustain a promissory
estoppel claim under Georgia law. See Georgia Inv. Int’l, Inc. v.
Branch Banking & Tr. Co., 305 Ga. App. 673, 675 (2010) (“Promis-
sory estoppel does not . . . apply to vague or indefinite prom-
ises[.]”). Moreover, and as discussed above, to the extent these al-
legations assert a promise by Dickinson Wright to pay Plaintiff’s
legal fees, they are directly contravened and superseded by numer-
ous exhibits attached to the complaint conclusively showing that
all the parties, including Plaintiff, understood Mellberg was respon-
sible for paying the fees, rather than Dickinson Wright. As such,
they do not state a plausible promissory estoppel claim.
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22-10625 Opinion of the Court 15
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Plaintiff’s complaint in its entirety under Federal
Rule 12(b)(6) for failure to state a claim upon which relief may be
granted.3
3 Given our affirmance of the district court’s dismissal on the above-described
grounds, we do not address the other grounds for affirmance raised by De-
fendant.
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