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Kent v. Brown5/28/1999
In the Court of Appeals of Georgia
BA-021
Attorney L. B. Kent ("Kent") appeals a jury verdict against him for expert witness fees, attorneys 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, P.E., 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 appeal 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 attorneys 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 personal 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. 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, Brown said. 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 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 expenses, after which he and Kent exchanged calls
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