Following a bench trial, Joseph Wilen appeals from the trial court’s judgment in favor of Dr. Richard G. Murray, an expert witness retained by Wilen’s attorney in a previous lawsuit. In this appeal, Wilen contends that he is not responsible for Dr. Murray’s expert witness fees because he did not enter into a direct contract with Dr. Murray. He also asserts that the trial court erred by awarding attorney fees under OCGA § 13-6-11. For the reasons set forth below, we affirm.”The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. However, if the trial court makes a finding of fact which is unsupported by the record, it cannot be upheld; and if the judgment is based upon a fact for which there is no evidence, it should be reversed.” Z & Y Corp. v. Indore C. Stores , 282 Ga. App. 163, 169 1 638 SE2d 760 2006. The record in this case shows without dispute that Wilen, Carolina Industrial Products, Inc. “Carolina Industrial”, and J. W. Equities, L. L. C. were represented by a single attorney, Edward McConwell, in a property damage lawsuit filed against Learjet, Inc., Raytheon Aircraft Services, Inc. and National Union Fire Insurance of Pittsburgh in the United States District Court for the District of Kansas. Wilen is the sole owner of his co-plaintiffs, Carolina Industrial and J. W. Equities, and was the sole operator of the aircraft at issue in the lawsuit. The claims against Learjet and Raytheon related to a brake failure on an aircraft operated by Wilen that caused it to veer off a runway. The claims against National Union related to its failure to fully pay the repair costs for the aircraft. Dr. Murray testified that McConwell contacted him and hired him to work on the case against Learjet, Raytheon, and National Union on behalf of the plaintiffs. The terms of their agreement were that Dr. Murray would submit monthly statements to McConwell and McConwell “would see that they were paid.” Dr. Murray’s first two monthly statements totaling $4,593.09 were paid timely through a Carolina Industrial check signed by Wilen. His following four invoices were dated October 1, 2001; November 1, 2001; January 2, 2002; and February 1, 2002 respectively. Those invoices totalled $17,370.53 and were never paid. On December 1, 2001, Dr. Murray wrote McConwell because his November 1, 2001 invoice remained unpaid, and he requested “efforts to expedite payment.”
On December 18, 2001, the trial court in the pending lawsuit against Learjet, Raytheon, and National Union granted partial summary judgment in favor of the defendants. The trial court’s ruling rendered Dr. Murray’s testimony against Learjet moot. Dr. Murray testified that the opinions he rendered in the case were primarily used in the portion of the case against Learjet alleging a product defect. The Second Amended Complaint includes Wilen as one of the plaintiffs asserting claims against Learjet. The trial court subsequently excluded any testimony by Dr. Murray as to the standard of care owed by an airplane maintenance company.
