Attоrney L. B. Kent appeals a jury verdict against him for expert witness fees, attorney fees, and expenses of litigation. He asserted in 13 enumerations that the trial court erred in striking his counterclaim, giving certain jury charges, making certain evidentiary rulings, trying the case without proper jurisdiction, and denying a motion for directed verdict. David G. Brown, RE., Inc. (“Brown”) cross-appeals the trial court’s denial of his demand for pre-judgment interest. For the reasons that follow, we affirm in both cases.
Brown sued Kent in magistrate’s court for $5,000 in expert witness fees. Kent counterclaimed for damages in the amount of four times the fees sought, which exceeded the court’s jurisdictional limit. The case was then transferred to state court, and Brown recast his complaint to allege stubborn litigiousness and bad faith. Brown moved to dismiss Kent’s counterclaim, and the state court granted the motion, concluding the statute under which Kent proceeded did not apply. This Court denied Kent’s motion for an interlocutory aрpeal and dismissed his direct appeal of the same issue. A state court jury heard the case and awarded Brown $5,200 for his witness fees along with $15,150 for his attorney fees and $400 for expenses of litigation.
This controversy arose out of a disputed bill for expert witness fees. The evidence presented at trial established that Kent contacted Brown first and asked him to make a preliminary review of another expert’s assessment of an automobile collision that resulted in two pеrsonal injury suits. The parties agreed on a $300 fee, and Brown-conducted the preliminary review. From that point on, the parties disagree about many details of the subsequent transactions. They do agree that Brown testified at a deposition in the underlying personal injury suit, was paid for his deposition time by opposing counsel, and then testified at trial on behalf of Kent’s client.
Brown testified that, in the initial telephone call with Kent, he told the lawyer his rate was $150 an hour. He stated that Kent explained to him that another expert witness had testified at trial in a companion case that resulted in a defense verdict, and he wanted Brown to look at the other expert’s conclusions. He agreed to review Kent’s documents and to hold the cost to $300 for that initial review.
After receiving and reviewing the documents, Brown said he called Kent and told him that from this brief analysis, he thought he basically agreed with the other expert’s conclusions, but if Kent wanted him to proceed, he would have to do more work. Kent told him to “go ahead” with a detailed analysis, Brown testified, and told him opposing counsel would want to take his deposition. Brown then *608 outlined the numerous tasks involved in the detailed analysis he performed of the automobile collision in Kent’s personal injury case, including visiting the scene of the wreck to measure the roadway, making a scaled diagram of the scene, performing computer simulations to determine how the vehicles ended up in their final positions, and enlarging his diagrams for Kent to use for trial exhibits.
After Brown completed his analysis, he said he called Kent to tell him the results and then prepared for the deposition. Opposing counsel took his deposition, and Kent followed up with at least an hour of questioning. All the deposition time was billed to opposing counsel, including the time spent answering Kent’s questions, and opposing counsel paid that bill. Brown then billed Kent for the time spent analyzing the collision, along with various еxpenses, after which he and Kent exchanged calls and letters about Brown’s appearance at the upcoming trial in Columbus and further preparation for that trial.
During this time, Kent never disputed his first bill for $3,009, Brown testified. Brown prepared for trial and met with Kent in person on the morning of trial to review his exhibits and proposed testimony. He waited as the trial got underway, testified for several hours, then returned to Atlanta from Columbus. The next day he sent Kent his final bill, and a week later received a lеtter from Kent in response advising him the jury returned a defense verdict. Brown testified that he followed up with two more letters seeking payment, then talked to Kent by phone more than three months after trial. He said Kent told him he did not win any money, he was broke, and either could not or would not pay the bill. Brown sent two more letters seeking payment, then filed suit in magistrate’s court.
Kent’s version of events is that he agreed to pay Brown only $300 to review material, that he had not agreed to pay for time Brown spent preparing for a deposition called by opposing counsel, and that Brown asked him at the deposition if he could come to trial and testify against the other side’s expert witness, because he disagreed so strenuously with the expert’s conclusions. Kent subpoenaed Brown after he asked to come to trial, “because [he] didn’t want any question about charging [his] poor client any of his fees.” Brown denied he was served with the subpoena and denied volunteеring to testify as Kent described.
Case No. A99A0420
1. In his first enumeration, Kent argues the trial court erred in dismissing his counterclaim for quadruple fees pursuant to OCGA § 24-10-4. This statute provides that “[a] witness who claims more than is due to him shall forfeit all his fees and shall pay to the *609 injured party, in addition thereto, four times the amount so unjustly claimed.” Kent claimed that, because he subpoenaed Brown after Brown asked to testify at trial, he did not owe Brown’s expert witness fees; thus, Brown was claiming “more than is due to him.”
In a well-reasoned оpinion, the trial court traced the statute’s history and analyzed the single appellate court decision addressing OCGA § 24-10-4. In
Nationwide Mut. Ins. Co. v. Glaccum,
In this case, however, Brown was asked to conduct a preliminary review of evidence in order to better give his opinion as an expert. Thus he was entitled to demand extra compensation for attendance in court pursuant to the subpoena, and the trial court did not err in dismissing Kent’s counterclaim.
2. Kent contends the trial court erred in seven of its charges to the jury. “[I]t is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge.” (Citations and punctuation omitted.)
Leslie v. Williams,
to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. Further, it is well established an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it.
(Citations and punctuation omitted.)
Southern Bell Tel. &c. Co. v. Don Hammond, Inc.,
(a) Kent alleges the trial court erred in charging the jury based on OCGA § 24-10-24 as follows:
[W]hen a witness resides outside the county where the testi *610 mony is to be given, service of the subpoena, to be valid, must be accompanied by tender of to [sic] fee for one day’s attendance plus mileage of 20 cents per mile for traveling expenses for going from and returning to his place of residence by the nearest practical route.
Kent claimed at trial that, because he subpoenaed Brown to appear and testify, he did not owe him expert witness fees. Brown’s attorney asked Kent at trial whether he had tendered to Brown a witness fee and mileage so the subpoena would be valid, and Kent responded he did not have to tender that money because Brown “wanted to come.” The trial court on its own motion charged the jury on the law regarding the validity of a subpoena served on a witness who lives outside the county where the trial is held.
Whether the subpoena was served properly on Brown was an issue at trial, and the trial court did not err in charging the jury on the law as written.
Southern Bell Tel. &c. Co. v. Don Hammond, Inc.,
supra,
(b) Kent enumerates as error the following charge: “If one engages another to do work and you find it has been done or performed and you find that the parties agreed to consideration or compensation for that work, then the party engaging the work is, in all [sic], liable for the agreed consideration or compensation.” He asserts the charge “was objected to as argumentative, no agreement, no consideration and not adjusted to the evidence,” and proceeds to argue evidentiary matters and inapplicable case law. The charge is a correct proposition of law.
Jenks v. Liepman Contracting Co.,
(c) Kent contends the trial court erred in charging the jury that “[d]amages are given as a pay or compensation for injury done,” arguing this measure of damages is not applicable here. The trial court charged almost the exact language of OCGA § 13-6-1, which provides that “[d]amages are given as compensation for the injury sustained as a result of the breach of a contract” (Emphasis supplied.) While the trial court left out the italicized portion of the statute indicated above, it immediately charged the jury that “damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from the breach, and such as the parties contemplated when the contract was made, as the probable result of the breach.”
“We find no error in giving instructions as to the general principles regarding the recovery of damages in a contract case where, as
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here, there is no contention that the proper measure of those damages was not also given.”
Canal Ins. Co. v. Bryant,
(d) Kent argues the -trial court erred in giving the following charge because no evidence supported it: “If an account is rendered to the debtor on a valid contract and he fails to object to it, a jury may be authorized to infer that the failure of the debtor to raise an objection was an implied agreement that the account was correct.” To the contrary, Brown presented evidence at trial that he billed Kent for $3,009 after attending a deposition and for another $2,178.40 after he testified at trial. Brown testified that Kent not only never objected to the bills, but exchanged numerous letters and phone calls with Brown regarding the upcoming trial after receiving the first bill for $3,009. We conclude the trial court did not err in giving this charge.
(e) Kent further asserts that the trial court erred in a charge based on OCGA § 9-2-7 as follows: “Ordinarily, when one renders service or transfers рroperty which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” Kent objected to the charge on the grounds that no evidence showed “that any service that was rendered to another was valuable to another and there has certainly been no evidence that those disputed services were accepted.”
Contrary to Kent’s argument that no evidence supports the chаrge, Brown testified that he analyzed the collision in depth after his preliminary analysis, both to be prepared to give a deposition and to assist Kent in cross-examining the other side’s expert witness. Kent, as well as opposing counsel, questioned him at the deposition. Brown further testified that Kent never commented on his post-deposition bill, but instead conferred with him at length regarding his upcoming trial testimony.
This Court has held that OCGA § 9-2-7 embodies “a fundamental principle in determining liability under an implied contract.”
Delta Corp. v. Knight,
(f) Kent argues that the trial court erred in charging the jury on estoppel as follows:
An estoppel arises where a party has so acted that he has by his conduct either gained some advantage for himself or *612 caused some disadvantage to accrue to another, by reason of which it would be contrary to equity and good conscience to permit him thereafter to deny an obligation based upon such conduct. If a party to a valid contract seeks to avoid it on any grounds, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he cannot avoid or rescind such contract.
Kent argues “there is no evidence of a contract and no evidence of anybody trying to avoid a contract,” and further argues that the case presented no issue of estoppel. To the contrary, Brown presented substantial evidence of a contract for expert witness analysis at $150 an hour, as outlined earlier, and presented evidence that Kent tried to avoid the contract for services by claiming that he did not owe Brown for his time because Brown volunteered to testify at trial.
“[P]romissory estoppel claims are extremely fact-specific and are nоt susceptible to the application of generalized rules.”
Doll v. Grand Union Co.,
925 F2d 1363 (11th Cir. 1991). In
Kamat v. Allatoona Fed. Sav. Bank,
[t]o prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise. [Cits.]
Id. at 263 (3).
Brown testified that Kent promised to pay him; Kent should have expected Brown to rely on that promise to pay; and Brown testified for Kent’s client at deposition and at trial based on that promise to pay. Compare
Gainesville Glass Co. v. Don Hammond, Inc.,
(g) Kent objects to the trial court’s charge on litigation expenses, bad faith, stubborn litigiousness, trouble and expense, and attorney fees, asserting that Brown laid no foundation for the charge. He further asserts the charge was argumentative and did not define the terms contained within it. The charge as given, which paraphrases OCGA § 13-6-11, reads:
*613 The expenses of litigation are not generally allowed as a part of the damages. But, if the Defendant has acted in bad faith or has been stubbornly litigious, or has caused the Plaintiff unnecessary trouble and expense, you may allow them. You should determine from the evidence the attorney’s fees or other expense, if any, as will be allowed.
While it is true, as Kent argues, that the evidence must show “more than a mere breach of contract” to warrant attorney fees,
Pulte Home Corp. v. Woodland Nursery
&c.,
Here, Brown laid a foundation for the charge, introducing evidence that showed more than mere breach. He outlined his attempts to collect his fee and placed into evidence numerous letters and invoices he sent to Kent. Brown testified that, when he called Kent to inquire about payment several months after submitting his bills, Kent said “I didn’t win any money. It was a defense verdict and he said I’m broke . . . and then he said I can’t or I wоn’t pay your bill. It was either can’t or won’t.” After further attempts to collect, Brown said he finally sued Kent in magistrate’s court for $5,000, being willing to forgive $180 out of his total bill so he would not exceed the court’s jurisdiction. Shortly thereafter, Kent counterclaimed for four times the amount of the fees, and the case was transferred from magistrate’s court to state court. Brown testified that, at that point, he hired a lawyer to represent him.
After Brown laid a proper foundation, the trial court admitted thе invoices of Brown’s lawyer into evidence. Those invoices covered, among other things, the transfer of the case from magistrate to state court, the amendment to the complaint seeking attorney fees, the motion to dismiss Kent’s counterclaim, the interim appeals to this Court, and the trial.
We find the charge was warranted by the evidence.
Scriver v. Lister,
3. Kеnt contends the trial court did not have jurisdiction to try the case, arguing that this Court’s remittitur had not been filed in the trial court when the trial began. We find no error.
Kent had filed an application for discretionary appeal in this
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Court, seeking review of the trial court’s dismissal of his counterclaim. That application was denied on December 3, 1997, and the remittitur was filed in the Muscogee County clerk’s office on December 5, 1997. He also filed a direct appeal, which this Court dismissed on January 7, 1998. Thаt remittitur was filed in the Muscogee County clerk’s office on February 19, 1998. Since the denial of the interlocutory appeal was filed well before trial began on February 18, 1998, Kent’s argument that the trial court lacked jurisdiction must be based on his direct appeal. However, the dismissal of a counterclaim is not directly appealable, and this Court never obtained jurisdiction over the case as a result of Kent’s direct appeal.
Kilgore v. Kennesaw Finance,
4. Kent enumerates as error the trial court’s denial of his motion for directed verdict on Brown’s claim of express contract. He argues that he never testified that he had an express contract or agreement, and that Brown merely claimed he said he would have to do more work at $150 an hour.
We affirm a trial court’s denial of a directed verdict motion if any evidence exists to support the non-moving party’s claim.
Candler v. Davis & Upchurch,
5. Kent’s next enumeration is that the trial court erred in admitting similar transaction evidence. We disagree.
Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed tо exist, with a view to establish the intent of the defendant in respect to matters charged against him in the petition. . . . Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course оf conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. . . .
*615
(Citations and punctuation omitted.)
Candler v. Davis & Upchurch,
supra,
The trial court in this case allowed testimony that Kent had hired another engineer for another case involving the same accident that Brown reconstructed and then also refused to pay him. “In light of the similarity of the transactions involved and the issue of bad faith, we cannot say that the trial court abused its discretion in finding that the evidence of similar transactions was relevant and should bе heard by the jury.”
Candler v. Davis & Upchurch,
supra,
6. Kent asserts the trial court erred in reading case law to the jury and in denying his motion for mistrial. The alleged error arose just before a break in the trial. Kent told the court he “needed to put something on the record in front of the jury,” and moved to strike the other engineer’s testimony, arguing among other things it was irrelevant. In denying the motion, the trial court suggested he read a particular case. Kent continued with his motion, asserting the testimony should be struck because it impermissibly put his charаcter into issue. At that point, the trial court read an excerpt from an appellate court opinion.
Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain, on appeal or error, that proceedings had in conformity thereto were erroneous.
(Citation and punctuation omitted.)
Le Twigge, Ltd. v. Wammock & Co.,
7. Finally, Kent contends the trial court erred in denying his motion for mistrial after an attorney testified that the number of hours and the rate charged by Brown’s lawyer were reasonable. More particularly, he objects to the witness’s response to a question regarding his review of the reasonableness of the itemized charges and file summary. The witness testified that, in order to determinе the reasonableness of the fee, he had to analyze the background of the case, and concluded
[t]he time spent had to be spent and it shouldn’t have had to be spent. It’s ridiculous. It started out as a simple lawsuit to collect a bill and it’s turned out to be a Federal case, even though we’re not in Federal Court. . . . [Brown] has to go *616 get a lawyer and then it just gets worser and worser. They then just jerk one another around in the Magistrate Court and then finally they get an appeal to the Georgia Court of Appeals on two different routes. . . . The time thát had to be spent shouldn’t have had to be spent is what I’m saying.
After the witness concluded, Kent objected to the response on the grounds that it was “totally irrelevant” and “extremely prejudicial to the jury,” and moved for a mistrial. The trial court overruled his objection and denied his motion.
“It is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.”
Southern Cellular Telecom v. Banks,
Case No. A99A0421
Brown cross-appeals the trial court’s denial of his demand for interest on $5,200 awarded on his contract claim. The trial court found that the amount due to Brown under the contract was disputed and, therefore, the damages were not liquidated.
OCGA § 7-4-15 provides: “All liquidated demands . . .bear interest from the time the party shall become liable and bound to pay them.” “The word ‘liquidated’ as used in the statute means ‘settled, acknowledged, or agreed.’ ” (Citations and punctuation omitted.)
Jennings Enterprises v. Carte,
Judgments affirmed.