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Kelly v. Levandoski4/18/2005
han (Nathan) and Jones is a court reporter hired by Boesch for her services provided at a deposition of Nathan. Neither Jones nor Boesch presented any direct evidence as to the precise terms of the agreement. On November 8, 1996, Jones attended the deposition and recorded Nathan's testimony. Jones was aware that Boesch had arranged for her services on behalf of Nathan. After the deposition, Jones sent a bill for her services to Boesch. Boesch forwarded the bill to Nathan for payment. However, Nathan never paid Jones. After the passage of over five months and issuance by Jones of no less than three billing statements during this time period, Boesch, for the first time, forwarded a letter to Jones indicating that Nathan was responsible for the payment of all deposition charges. Meanwhile, Boesch obtained a judgment against Nathan for attorney fees, and indicated to Jones that the funds, if collected, would be used to pay the court reporting charges. However, Nathan never paid either Boesch or Jones. Therefore, Jones filed suit against Boesch to recover for her services. A bench trial was held on September 21, 1998 and the court issued its judgment on October 1, 1998 in Jones' favor. Boesch now appeals.
Id.
Boesch claimed the trial court erred when it ruled in Jones' favor because an attorney cannot be responsible for a contract made on behalf of a disclosed client. We held:
Nevertheless, it is well settled that an attorney, by virtue of the representation, becomes a powerful agent with a great deal of authority. Retention confers on an attorney the general implied authority to do on behalf of the client all acts in or out of court necessary or incidental to the prosecution or management of the suit or the accomplishment of the purpose for which the attorney was retained. Essentially, an attorney is more than a mere agent of the client, he is the sole manager of the business committed to his care.
Courts in other jurisdictions have considered the agency relationship of the attorney and client a modified one, treating the attorney as a principal because his education, experience and professionalism render him in charge of the litigation. In those jurisdictions, the attorney ordering goods or services for the client will also be personally liable for those expenses, in the absence of an express disclaimer of such responsibility. Thus, under this line of reasoning, the burden is on the attorney to expressly disclaim responsibility rather than upon the service provider to obtain the attorney's personal promise to pay.
The trial court followed the view that the attorney should be responsible to a service provider in the absence of a disclaimer, and held Boesch liable for the costs of Jones' court reporting. Further, the court found Boesch to be "more than a mere agent, rather in accordance with his professional duties he is indeed the strategist and is thus empowered to perform the minutiae details of litigation." (R.44). We agree. We think it only fair that an attorney with superior legal knowledge who actively seeks another's services in connection with litigation bear the burden of clarifying his intent regarding payment.
Id. at 1063 (internal citations omitted).
Kelly claims we should not follow Boesch because the storage of the van was not a "litigation expense." Kelly asserts Levandoski's storage of the van was "performed in connection with an automobile accident which resulted in litigation," not "in connection with litigation." (Appellant's Br. at 11.) To call storage of the van a litigation expense would, Kelly claims, be akin to calling medical services provided after a traffic accident litigation expenses. That, he asserts,
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