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DEEN, Presiding Judge.
Action on fees. DeKalb State Court. Before Judge Workman.
The appellee, Alpha Systems, Inc., commenced this action against the appellant, United Controls, Inc., to recover employee recruitment fees due under an express oral contract. The appellee sought a $9,600 fee, representing 30 percent of an estimated $32,000 salary to be paid the recruited employee, but the jury awarded only $4,800. The appellant does not attack the amount of the verdict, but rather its viability, contending that the jury could have reached a verdict only by applying quantum meruit as a theory of recovery.
The appellant correctly notes that while a party may proceed in both contract and quantum meruit in a two-count petition, "[t]here can be no recovery on quantum meruit when the action is based on an express contract." Stowers v. Hall, 159 Ga. App. 501 (283 SE2d 714) (1981). That, however, is not the case here. The appellee proceeded purely on the alleged contract, and the trial court charged the jury only on contract. Contrary to the appellant's contention, the testimony of the appellee's president and sole owner generally describing the efforts he took to earn his fee, and the testimony of another witness concerning the average fees charged by employee recruiters, did not constitute evidence of a quantum meruit claim. Further, the fact that the jury awarded the appellee less than what it could have recovered under the contract provides the appellant with no basis to complain. Campbell v. Alford, 155 Ga. App. 689 (2) (272 SE2d 553) (1980).
Because it does not appear that there was any valid reason for the appellant to anticipate reversal of the trial court's judgment, we conclude that the appeal was brought only for purposes of delay. Accordingly, we grant the appellee's motion for ten percent damages for frivolous appeal, pursuant to OCGA 5-6-6. Karsman v. Portman, 173 Ga. App. 108 (325 SE2d 608) (1984).
Smith & Polstra, Charles L. Dunn, Cynthia L. Weese, for appellee.
Murray, Temple & Dinges, William D. Strickland, for appellant.
Saturday May 23 19:07 EDT

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