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Kelly v. Levandoski4/18/2005
hold on to it, send him the bill, and when this legal suit, I'm trusting with the Browns, was over that I would get paid.
Q: Was there anything else that Mr. Kelly told you in that conversation?
A: He gave me his address.
Q: On how -- where to send the bill to?
A: To where to send the bill to.
Q: And what --
A: Munster.
Q: -- did you do in response to that call from Mr. Kelly?
A: I done what Mr. Kelly wanted. I sent him --
Q: What was it?
A: -- I sent him a copy of the bill.
Q: Do you remember when it was that Mr. Kelly contacted you?
A: Middle of October '95, perhaps early part of November, I would say closer to October.
Q: Okay. During that conversation that you had with Mr. Kelly, did he specifically tell you that he would not personally be responsible for the bills for storage?
A: No, sir.
(Appellee's App. at 158-59.)
As at the summary judgment phase, Kelly argues his requests that Levandoski store the van and send the bills to Kelly could not, as a matter of law, have created an express contract between them. In addition, Kelly again argues he cannot be held personally responsible for the bill as the Browns' agent because the storage was not a "litigation expense" as defined in Boesch. As at the summary judgment phase, those arguments fail.
Levandoski's testimony created a dispute of material fact about whether Levandoski stored the van at Kelly's request with the understanding he would be paid when the Browns' case concluded. In addition, it created questions of fact about whether equity required Kelly to pay Levandoski for the service so that Kelly would not be unjustly enriched. As the record contains evidence that supports each element necessary for Levandoski to recover under a number of legal theories, we cannot hold the trial court erred when it denied Kelly's motion for judgment on the evidence.
3. Expert Witness Testimony
Admission of evidence, including the proffered testimony of experts, lies within the sound discretion of the trial court. Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1263 (Ind. Ct. App. 2002), trans. denied 783 N.E.2d 703 (Ind. 2002). The court has abused its discretion if its decision was against the logic and effect of the facts and circumstances before the court. Id. We will reverse for the improper exclusion of evidence only if the appealing party can demonstrate prejudice. Indianapolis Podiatry, P.C. v. Efroymson, 720 N.E.2d 376, 383 (Ind. Ct. App. 1999) ("Erroneously excluded evidence requires reversal only if the error relates to a material matter or substantially affects the rights of the parties."), trans. denied 735 N.E.2d 230 (Ind. 2000).
Kelly called as an expert witness an attorney, Craig Braje. Kelly attempted to have Braje testify regarding: (1) the elements of a contract; (2) case law regarding contracts, including Boesch v. Jones; (3) the legal concept of agency; (4) his opinion whether a contract existed between Kelly and Levandoski; (5) his opinion that Levandoski failed to mitigate his damages; (6) his opinion whether Levandoski sued the right party; and (7) his opinion about the contingency fee arrangement between Kelly and the Browns.
Levandoski objected to those categories of testimony and, after a hearing at which Kelly presented his offer of proof, the court sustained Levandoski's objection:
The Court on the basis of the offer to prove finds that Mr. Braje can testify as to what he does in the context of litigation, collecting facts, evidence
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