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Kelly v. Levandoski4/18/2005
would make attorneys responsible for the medical bills of their clients.
Kelly's argument is a red herring. Kelly did not simply call and request a copy of the towing and storage bill to present as damages in the lawsuit. Instead, Kelly called and asked Levandoski to keep the van because Kelly needed it for the Browns' personal injury litigation. As Levandoski explains: "The better comparison would be one where Attorney Kelly had a medical exam performed for permanent partial impairment on his client, as with Stan's services, Attorney Kelly would and should be responsible for those services he requests." (Appellee's Br. at 13-14.)
Kelly's request that Levandoski keep the van because Kelly needed it for the Browns' lawsuit was a request for a service in connection with litigation and can reasonably be construed as a "litigation expense." Thus, Kelly could be held personally liable under Boesch, unless Kelly specifically disclaimed personal liability to Levandoski. Kelly acknowledges he made no such disclaimer to Levandoski. Kelly was not entitled to summary judgment on the ground he was an agent of the Browns.
Kelly also claims there was no consideration for a contract between himself and Levandoski. Consideration is a "bargained for exchange" whereby the promisor accrues a benefit or the promisee accepts a detriment. DiMizio v. Romo, 756 N.E.2d 1018, 1022-23 (Ind. Ct. App. 2001), trans. denied 774 N.E.2d 509 (Ind. 2002). "A benefit is a legal right given to the promisor to which the promisor would not otherwise be entitled." Id. at 1023. "A detriment, on the other hand, is a legal right the promisee has forborne." Id.
Specifically, Kelly asserts that because the police, and not he, asked Levandoski to tow and store the van, Levandoski was not providing a benefit to Kelly that was not "already being provided for the Browns." (Appellant's Reply Br. at 6.) Kelly fails to acknowledge the facts most favorable to Levandoski. Levandoski initially towed and stored the van for the Browns at the request of the police; however, Kelly then asked Levandoski to keep the van because Kelly needed it for the lawsuit. Levandoski kept the van for four years, and he claims he did so in reliance on Kelly's request and promise that he would be paid when the case was over. Levandoski's statements, which the trial court was obliged to take as true at the summary judgment stage, demonstrated a genuine issue of material fact regarding consideration.
Even if there is no express contract, a plaintiff may sometimes recover under the theory of unjust enrichment, which is also called quantum meruit, contract implied-in-law, constructive contract, or quasi-contract. Bayh v. Sonnenburg, 573 N.E.2d 398, 408 (Ind. 1991), reh'g denied, cert. denied 502 U.S. 1094 (1992). These theories are "legal fictions invented by the common law courts in order to permit recovery where in fact there is no true contract, but where, to avoid unjust enrichment, the courts permit recovery of the value of the services rendered just as if there had been a true contract." Wallem, 725 N.E.2d at 890.
"Principles of equity prohibit unjust enrichment in cases where a party accepts the unrequested benefits another provides despite having the opportunity to decline those benefits." Truck City of Gary, Inc. v. Schneider Nat. Leasing , 814 N.E.2d 273, 280 (Ind. Ct. App. 2004). The purpose of these equitable theories is to force those who have been unjustly enriched at the expense of another party to make restitution to that other party. Bayh, 573 N.E.2d at 408 (quoting Restatement of Restitution ยง 1 (1937)).
"A party seeking to recover on a theory of quantum meruit must demonstrate that a bene
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