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Kelly v. Levandoski4/18/2005
ection with litigation and enters into a contract for the performance of those services is personally liable for those costs unless the attorney expressly disclaims such responsibility to the provider of the services.
(Id. at 191-92.)
Kelly's objection to this instruction was that it was based on Boesch, 712 N.E.2d 1061, which Kelly believes is not relevant to Levandoski's claim against Kelly. For the reasons discussed above, we disagree. Kelly contacted Levandoski and identified himself as the Browns' attorney. Kelly asked Levandoski to keep the van and to send the bills for storage to Kelly. Kelly did not expressly disclaim his responsibility for the bills, but rather told Levandoski he would be paid when the case was over. Those facts support a possible recovery for Levandoski under the theory of Boesch, and the trial court did not err when it gave that instruction.
CONCLUSION
We cannot say as a matter of law Kelly's statements to Levandoski could not have created a contract for services. Kelly's request that Levandoski keep the van because Kelly needed it for litigation purposes was a request for services in connection with litigation. The trial court did not err when it excluded portions of the testimony of Kelly's expert witness, and the evidence supported the trial court's instructions. As Kelly has not demonstrated error, we affirm the judgment of the trial court.
Affirmed.
DARDEN, J., and SHARPNACK, J., concur.
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