Southern Co. v. Hamburg , 233 Ga. App. 135 ( 1998 )

McMurray, Presiding Judge.

This case first appeared in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467), cert. denied at 220 Ga. App. 914, after a jury awarded Jeffrey R. Hamburg damages for breach of contract and defamation. The jury also found that The Southern Company (“Southern”), Southern Electric International (“SEI”) and Paul DeNicola are responsible for Hamburg’s attorney fees and expenses of litigation. After a hearing on these damages, the trial court awarded Hamburg $2,009,681 based on Hamburg’s proffer of billing sheets, expense reports and summaries recording time and expenses allegedly provided by Hamburg’s lead attorney and many others. Because most of these billings were purportedly recorded by persons (primarily attorneys) who were not proffered to authenticate their work, this Court held in Hamburg that the billing summaries “ ‘constitute nothing more than “hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32 [(447 SE2d 83)].’ Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1), 738 (458 SE2d 711).” Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. This Court, therefore, remanded the case for an evidentiary hearing to establish the amount of attorney fees attributable to probative evidence offered at the hearing. Id. at 842 (5), supra. The trial court, however, reentered its prior $2,009,681 attorney fees and expenses of litigation award based on the proffer this Court rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. Southern, SEI and DeNicola challenge this judgment in Case No. A98A0322. Hamburg cross-appeals in Case No. A98A0323, contending the trial court erred in failing to allow the introduction of additional evidence supporting his claim for attorney fees and expenses of litigation. We now consider both appeals. Held:

The trial court reasoned that the billing sheet proffers rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, were admissible as business records under Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776 (485 SE2d 34). While Santora held that legal billing sheets are admissible under Georgia’s statutory business records exception to the hearsay rule, Santora injects this conclusion without overruling Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, or speaking to or applying precepts of necessity, trustworthiness and reliability — the fundamental requisites for application of this venerable exception to the rule against the admission of hearsay. See Fielder v. Collier, 13 Ga. 496, 499. Such analysis is not only essential for aligning judicial authority, but is required under OCGA § 24-3-1 (b)’s requirement that “[hjearsay evidence is admitted only in specified cases from necessity.” Nonetheless, while recognizing the trial court’s understandable confusion over what to do in light of the panel decision in Santora, these cases do not control the cases sub judice. Our holding in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, became the law of the case after the Supreme Court of Georgia denied Hamburg’s certiorari application at 220 Ga. App. 914. See Grindle v. Chastain, 229 Ga. App. 386, 389 (2) (493 SE2d 714). It thus follows that the trial court erred in entering a $2,009,681 judgment for Hamburg based on the evidentiary proffer this Court rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. The only remaining issue, then, is Hamburg’s contention that the trial court erred in failing to allow him to proffer additional evidence supporting his claim for attorney fees and expenses of litigation. To this extent, we find it sufficient to restate our prior citation to Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606), and direct the trial court to conduct an evidentiary hearing to establish the amount of attorney fees and expenses of litigation attributable to probative evidence offered at the hearing. But the trial court’s concern over the basis of this Court’s holding in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, appears to require more than our prior citation to Southern Cellular Telecom v. Banks, 209 Ga. App. 401, supra.

In Banks, this Court rejected that trial court’s award of attorney fees based on a proffer of billing sheets, pointing out that such unimpeachable submissions are insufficient without opportunities at cross-examining the out-of-court declarants (attorneys) who submitted the billings. This Court then remanded Banks with direction for the trial court to conduct an evidentiary hearing to establish the amount of attorney fees. Id. at 402, supra. Since the cases sub judice and Banks pour from the same procedural and evidentiary cup, it was and still is consistent to remand the cases sub judice, as in Banks, with directions for the trial court to conduct an evidentiary hearing and a de novo investigation into probative evidence offered at that hearing to establish the amount of attorney fees. This posture, as well as this Court’s holding in Banks, is consistent with the general rule that the effect of a reversal on appeal is to nullify the trial court’s judgment and return the parties to the same positions they occupied before judgment. Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3, 4 (6) (a) (375 SE2d 848). It follows that the trial court erred in refusing Hamburg’s proffer supporting his claim for attorney fees and expenses of litigation.

Any further confusion attributable to conflicting appellate court opinions on the subject at issue in the cases sub judice may be explained by citations and analysis found in this Court’s recent holding in Schluter v. Perrie, Buker, Stagg & Jones, P. C., 230 Ga. App. 776 (498 SE2d 543).

Judgment reversed and cases remanded.

Blackburn and Eldridge, JJ, concur and also concur specially.