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Kelly v. Levandoski4/18/2005
ance. Wallem v. CLS Industries, Inc., 725 N.E.2d 880, 883 (Ind. Ct. App. 2000). For an oral contract to exist, parties have to agree to all terms of the contract. Id. If a party cannot demonstrate agreement on one essential term of the contract, then there is no mutual assent and no contract is formed. Id. "A meeting of the minds of the contracting parties, having the same intent, is essential to the formation of a contract." Id. Whether a set of facts establishes a contract is a question of law. Id.
Kelly asserts as a matter of law no contract was formed between himself and Levandoski. We cannot agree.
In his answers to interrogatories, Levandoski stated: [Mr. Kelly] told me he represented Mr. and Mrs. Brown in a personal injury case and instructed me to hold onto, store and preserve the Brown's 1995 Dodge Van as he needed it in order for him to make claims and a possible lawsuit on behalf of the Browns. I was told to send him (Mr. Kelly) the bills for the fees incurred for towing and storage of the van. Thereafter on a number of occasions I was requested to update the storage bill so he (Mr. Kelly) could use the bill at trial. Mr. Kelly told me that the towing and storage fees would be paid when the case was settled or he (Mr. Kelly) recovered at trial on behalf of his clients, the Browns.
All I can say is that I sure as heck would not have stored this vehicle from October 6, 1995 to October 20, 1999, four (4) years, if it were not for the representations and instructions by Mr. Kelly!
(Appellee's App. at 19.) In addition, he explained:
Mr. Kelly's representations and instructions made over the telephone as stated in No. 2 [quoted directly above] were very definite and I understood them easily and did what he requested. I sent him updated bills as he requested and he never told me anything different than what he first represented to me. He (Mr. Kelly) never objected to the storage bills or that I was still storing the vehicle as he requested. He (Mr. Kelly) never told me he was not going to be responsible for the storage bill nor did he ever tell me someone else was responsible.
(Id. at 25.)
Those answers create genuine issues of material fact about whether an oral contract was created. If Kelly asked Levandoski to keep the van, to send copies of the bills to Kelly, and be paid when the personal injury case was over, an offer can reasonably be inferred. Levandoski's act of sending the bill to Kelly can reasonably indicate his acceptance of Kelly's offer. If Levandoski stored the van longer than he would have because he believed he would be paid for the storage, consideration can be found. Accordingly, it appears the trial court did not err when it declined to grant Kelly's motion for summary judgment under Kelly's theory that as a matter of law no contract was formed.
Nevertheless, Kelly argues he cannot be held personally responsible for the contract because he was acting as the Browns' agent and an agent is not responsible for a contract made on behalf of the principal. "Indiana recognizes the general rule that where an agent discloses the identity of his principal and does not exceed his authority when contracting on the principal's behalf, the agent is not personally bound by the contract unless the agent agrees to be so bound." Boesch v. Jones, 712 N.E.2d 1061 (Ind. Ct. App. 1999), trans. denied 726 N.E.2d 313 (Ind. 1999).
In Boesch, we were faced with the question whether "an attorney may be held personally liable for the costs of court reporting services he requested on behalf of his client." Id. at 1062. The facts were these:
Boesch is an attorney hired by Dr. Sylvester Nat
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