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Kelly v. Levandoski4/18/2005
fit was rendered to another at the express or implied request of such other party." SLR Plumbing, 757 N.E.2d at 200. The plaintiff must also demonstrate that to allow the defendant to retain the benefit without paying for it would be unjust and that the plaintiff expected payment. Bayh, 573 N.E.2d at 408. Levandoski's answers to interrogatories create genuine issues of material fact about whether Kelly asked Levandoski to keep the van, whether Levandoski stored the van longer than he would have because he believed he would be paid for the storage when the Browns' case concluded, and whether allowing Kelly to avoid payment for the storage would be unjust.
Finally, Levandoski could have recovered under a theory of unilateral contract. A unilateral contract arises without a "bargaining process or exchanges of promises by the parties." Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 719 n.11 (Ind. 1997). "Only one party makes an offer (or promise) which invites performance by another, and the performance constitutes both the acceptance of that offer and the consideration." Id. Levandoski asserted he kept the van for four years because Kelly promised him he would be paid when the Browns' lawsuit concluded. As such, genuine issues of fact exist regarding the creation of a unilateral contract.
The evidence most favorable to Levandoski would permit a jury to find in favor of Levandoski under theory of express contract, unjust enrichment, or unilateral contract. Accordingly, the trial court did not err when it declined to grant Kelly's motion for summary judgment.
2. Judgment on the Evidence
Kelly also claims the trial court erred when it did not grant his motion for judgment on the evidence. A motion for judgment on the evidence challenges the legal sufficiency of the evidence. Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind. Ct. App. 1995), trans. denied. If issues are "not supported by sufficient evidence the court shall withdraw such issues from the jury and enter judgment thereon." Id. The trial court should consider the evidence in the light most favorable to the non-moving party and determine whether substantial evidence, or a reasonable inference therefrom, supports each essential element of a claim. Id.
On appeal from the denial of a motion for judgment on the evidence, we apply the same standard as the trial court. Id. We consider the evidence most favorable to the non-moving party and determine whether the evidence supports "without conflict only one inference that is in favor of the defendant." Hurlow v. Managing Partners, Inc., 755 N.E.2d 1158, 1161 (Ind. Ct. App. 2001), trans. denied 774 N.E.2d 509 (Ind. 2002). If reasonable persons could come to different conclusions from the evidence, the trial court should not grant a motion for judgment on the evidence. Id.
At trial, Levandoski testified as follows:
A: I was contacted by Mr - - I believe I was contacted by Mr. Kelly.
Q: And Mr. Kelly contacted you how?
A: By telephone.
Q: Okay, and did he identify himself as Mr. Kelly?
A: Yes, sir.
Q: How else did he identify himself?
A: That he was an attorney and that he was working on a Brown case in which that's who owned the van. And that he knew I had the van.
Q: Okay. Did you have a conversation then with Mr. Kelly about what to do with this van?
A: Yes, sir.
Q: And what did Mr. Kelly tell you?
A: Mr. Kelly informed me that it was wrapped up in a legal suit of some nature and to hold on to the vehicle and send him the bill. And then the [gist] of it was that I was to
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