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Kelly v. Levandoski4/18/2005
FOR PUBLICATION
Timothy F. Kelly, d/b/a Timothy Kelly and Associates, appeals a judgment in favor of Stanley Levandoski, d/b/a Stan's Service. Kelly raises four issues, which we restate as:
1. Whether the trial court erred when it denied Kelly's motion for summary judgment;
2. Whether the trial court erred when it denied Kelly's motion for judgment on the evidence;
3. Whether the trial court abused its discretion when it limited the testimony of Kelly's expert witness; and
4. Whether the trial court erred when it instructed the jury on implied contract, quasi contract, and agency law.
We affirm.
FACTS AND PROCEDURAL HISTORY
Levandoski operates a towing service in LaPorte County. On September 30, 1995, he received a call from LaPorte County Police requesting he tow a van from an accident scene. Levandoski did not have a contract with the County, had no obligation to tow the vehicle, and would receive no reimbursement from LaPorte County in exchange for towing the van. Levandoski towed the van to his shop.
The owners of the van were Franklin and Darlene Brown. About six days after the accident, Franklin Brown came to Levandoski's lot to retrieve personal items from the van. Levandoski and Brown did not discuss what Levandoski was to do with the van or who was to pay for Levandoski's services.
The Browns hired Kelly to represent them in a personal injury action based on the accident. Kelly called Levandoski to inquire about the van. Kelly told Levandoski to "hold on to it," (Appellant's App. at 270), because Kelly needed the van for legal purposes and to send Kelly "a copy of the bill." (Id.) Kelly told Levandoski he would be paid when the case was over. Levandoski generated a bill and sent it to Kelly.
Three weeks after the accident, in late October 1995, someone from Kelly's office went to Levandoski's lot to take pictures of the van. Kelly's office called Levandoski on four or five other occasions to request updated copies of the bill for towing and storage of the van. On four occasions, Levandoski generated bills and forwarded them to Kelly.
When the Browns' personal injury lawsuit was over, Levandoski had stored the van for four years and the final bill was $18,827.00. That bill was one of the damages the Browns claimed in their lawsuit, and the jury awarded the Browns $132,000.00. Kelly did not compensate Levandoski for towing and storing the van, so Levandoski sued Kelly.
Kelly filed a motion for summary judgment, which the trial court denied. At the end of Levandoski's evidence, the trial court denied Kelly's motion for judgment on the evidence. Kelly attempted to introduce expert testimony regarding the formation of contracts in general and, specifically, between attorneys and service providers for clients, and the trial court sustained Levandoski's objection to such testimony. At the end of Kelly's evidence, he again requested judgment on the evidence, which the trial court denied. At Levandoski's request and over the objection of Kelly, the court instructed the jury on implied contracts, quasi contracts, and agency law. The jury returned a verdict for Levandoski in the amount of $18,827.00.
DISCUSSION AND DECISION
1. Summary Judgment
As an initial matter, the parties disagree about which documents Kelly should have included in his appendix. Levandoski argues Kelly waived his summary judgment argument by including in his Appellant's Appendix only the documents Kelly designated to the trial court. Kelly claims he was obliged to include only his documents because Levandoski was required
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