author: Smith, Judge. Beasley, Judge,

text:
    A97A1145.
    STATE OF GEORGIA v. GOBER.
    (494 SE2d 724)
   Smith, Judge.

The State appeals the denial of its motion for summary judgment or dismissal. Marie Childers was employed by the Juvenile Court of the Blue Ridge Judicial Circuit and as a public service work coordinator in Cherokee and Forsyth counties until 1993, when she was terminated. She sought mandamus relief and damages against those counties, against Gober, the judge of the circuit’s juvenile court, and against others. Gober filed a third-party indemnification action against the State based on the theory that any actions taken by him were in the course of his employment as a state judicial officer. The State filed a motion to dismiss based on sovereign immunity, among other things. The trial court denied the State’s motion, and the State directly appealed.

The decision appealed from is not a final judgment subject to direct appeal as provided for by OCGA § 5-6-34 (a). Nor is the decision subject to the “collateral order” doctrine, which permits direct review of an order even though an action remains pending below. See Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982). The circumstances under which such an appeal may be taken are limited. Appeal is not allowed “from any decision which is tentative, informal or incomplete.” Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541, 546 (69 SC 1221, 93 LE 1528) (1949). The doctrine requires that nothing be left “open, unfinished or inconclusive.” (Citation and punctuation omitted.) Scroggins, supra at 432 (1) (c). The order appealed from must concern an issue that is “substantially separate from the basic issues presented in the complaint,” and the appellant must show that “an important right might be lost if review had to await final judgment.” Id.

The face of the trial court’s order denying summary judgment shows that it falls short of these requirements. It recites that appellant “has a high likelihood of being found to be an officer of the State of Georgia. . . . Whether or not there was any responsibility of the State of Georgia to indemnify Judge Gober is a question to be determined upon presentation of further facts and consideration of further law.” (Emphasis supplied.) The decision clearly does not purport to make any final conclusion or finding with regard to appellant’s status or the State’s obligation to indemnify him. Instead, the trial court simply delayed ruling on the issues presented to it. The order appealed from consequently left the questions at issue open, unfinished, and inconclusive. The State’s appeal is therefore dismissed.

Appeal dismissed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Ruffin and Eldridge, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

The majority concludes that the order of the trial court denying the State’s motion for summary judgment or dismissal on the issue of sovereign immunity is not directly appealable under the collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541 (69 SC 1221, 93 LE 1528) (1949), because the order does not completely and conclusively resolve the issue appealed. I respectfully dissent.

1. Under Georgia law, sovereign immunity is “an ‘immunity from suit rather than a mere defense to liability’ and is ‘effectively lost if a case is erroneously permitted to go to trial.’ ” (Emphasis omitted.) Griesel v. Hamlin, 963 F2d 338, 340 (2) (11th Cir. 1992), citing Mitchell v. Forsyth, 472 U. S. 511, 526 (105 SC 2806, 86 LE2d 411) (1985). Its exclusion from the suit is precisely what the doctrine is intended to ensure. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982); Puerto Rico Aqueduct &c. Auth. v. Metcalf & Eddy, Inc., 506 U. S. 139 (113 SC 684, 121 LE2d 605) (1993). “[T]he value to the States of their . . . immunity ... is for the most part lost as litigation proceeds past motion practice.” Puerto Rico Aqueduct, supra, 506 U. S. at 145.

The trial court’s order does conclusively resolve the question of whether the State is required to proceed to trial. The pivotal issue is whether Judge Gober is an officer of the state or of the counties. This is purely a legal question. The parties in their appellate briefs have raised absolutely no contested issues of fact necessary for a resolution of the issue.

For the foregoing reasons, the order is immediately appealable. A trial court’s denial of a motion for summary judgment on a claim of sovereign immunity is appealable under Cohen “to the extent that it turns on an issue of law.” Mitchell, supra, 472 U. S. at 530. The doctrine was adopted for civil cases in Georgia in Scroggins v. Edmondson, 250 Ga. 430 (1) (297 SE2d 469) (1982).

The State is not deprived of its right of immediate appeal merely because the trial court’s order contains the “unadorned statement” that material issues of fact remain. See Behrens v. Pelletier, 516 U. S. _(116 SC 834, 133 LE2d 773, 782) (1996). The harm created by the majority’s erroneous dismissal of the appeal is compounded by the fact that resolution of the issues presented for decision necessitates a reversal of the judgment. Not doing so at this juncture could pave the way for inevitable error when the case is returned to the trial court and proceeds there.

2. Resolution of the question of whether Judge Gober is an officer of the state or the counties .requires a review of various provisions of the Georgia Constitution and Code relating to juvenile courts and their judges and employees, as well as cases construing these provisions. If he is a state officer or employee, issues arise as to whether the State may be brought into this action as a third-party defendant under the Tort Claims Act (OCGA § 50-21-20 et seq.) and whether insurance provided pursuant to OCGA § 45-9-1 (c) may cover Judge Gober’s personal liability.

By state law, a juvenile court is created in every county in this state. OCGA § 15-11-3 (a). The Georgia Constitution of 1983 includes juvenile courts as one component of a unified state judicial system. Art. VI, Sec. I, Pars. I and II. They are hinted at in Paragraph IV with respect to cases of juvenile offenders. On the other side of the coin, the counties’ powers do not extend to “[a]ction affecting any court or the personnel thereof.” Art. IX, Sec. II, Par. I (c) (7). The judicial power of the State is vested exclusively in the classes of courts within this system, including juvenile courts. Id.

A juvenile court judge is appointed by a majority of the judges of the superior court in each circuit and serves for a term of years equal to that of the superior court judges of the circuit. OCGA § 15-11-3 (d) (1). Compensation is generally set by the same judges with the approval of the governing authorities of the counties for which the judge is appointed. OCGA § 15-11-3 (d) (1) further provides that “[t]he state, out of funds appropriated to the judicial branch of government, shall contribute toward the salary of the [juvenile] judges on a per circuit basis” in stated amounts, although “[n]o state funds shall be available for [these] contributions . . . until the General Assembly has appropriated funds for that specific purpose.” The record does not show that the General Assembly has appropriated any such funds.

The juvenile court is assigned and attached to the superior court of the county for administrative purposes. OCGA § 15-11-3 (i). The juvenile court judge is not subject to the residency requirements contained in OCGA § 45-2-1 (7) for holding civil office in a county. OCGA § 15-11-3. Nor is the judge of the juvenile court a “county officer” under Art. IX, Sec. I, Par. Ill of the Georgia Constitution of 1983.

Yet, “[a]ll expenditures of the [juvenile] court are declared to be an expense of the court and payable out of the county treasury with the approval of the governing authority or governing authorities of the county or counties for which [the judge] is appointed.” OCGA § 15-11-3 (i). The compensation of juvenile court employees shall be fixed by the judge with the approval of the governing authority of the county, and the salaries of the employees shall be paid out of county funds. OCGA § 15-11-9. These give the county the authority, as well as the responsibility (see Wilson v. Southerland, 258 Ga. 479 (371 SE2d 382) (1988)), for funding the operations of the court.

Thornton v. State, 157 Ga. App. 75, 76 (2) (276 SE2d 125) (1981), characterized a juvenile court as a “county court.” But Thornton was decided prior to the adoption of the 1983 Georgia Constitution, which encompassed juvenile courts in the state judicial system. Thornton held that a juvenile court judge had authority to issue an arrest warrant for an adult under Code Ann. § 27-102 (now OCGA § 17-4-40), which granted such authority to any judge of various courts including any “county court.” OCGA § 17-4-40 has been amended and refers to state courts but not to county courts.

Bendiburg v. Dempsey, 692 FSupp. 1354 (N.D. Ga. 1988), held that the county could not be held liable under 42 USC § 1983 for an order of the judge granting an ex parte child deprivation petition. After reviewing the above-referenced statutory and constitutional provisions, the court concluded that “the judicial acts of a [juvenile] judge sitting within a particular county are the exercise of the judicial power of the state and are taken by authority of an office created by the state,” 692 FSupp. at 1363, and a judge pro tempore of a juvenile court in Georgia is an officer of the state and not the county. As held in Bendiburg, so here: in Georgia a juvenile court judge is a state judicial officer.

3. Judge Gober’s third-party complaint, brought under OCGA § 9-11-14 (a) and (c), alleges that in connection with Childers’ termination as an employee he was at all times acting in the course of his duties as a judicial officer of the state, so that if he is liable to Childers, then the State of Georgia is liable to him by virtue of his status as a state judicial officer. Although he is as a matter of law a state officer, the State’s sovereign immunity bars his third-party complaint.

The State has sovereign immunity from suit except where it provides by law otherwise. Ga. Const., Art. I, Sec. II, Par. EX. One instance of the affirmative waiver which must be shown by a plaintiff is the limited waiver in the Tort Claims Act. OCGA § 50-21-23. There the State allows a suit against itself (with certain exceptions and limitations) “for the torts of state officers and employees while acting within the scope of their official duties or employment,” but it expressly “shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.” The reason the State has waived its sovereign immunity in this way is that the General Assembly recognizes “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.” OCGA § 50-21-21 (a). Those troublesome results for which the cure was enacted in 1992 are the legal inability of people injured by torts of state officers and employees to recover from the tortfeasors’ employers.

In providing this window of opportunity to recover for injury, the State has taken onto itself the whole load, because in the Tort Claims Act, it has freed its officers and employees from liability for such torts. OCGA § 50-21-21 (b) declares as public policy that “state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.” OCGA § 50-21-25 (a) implements this policy and bestows this immunity on its officers and employees for their conduct.

It is obvious that defendant Gober could not depend on the Tort Claims Act as authority for demanding indemnity should he be held liable to former employee Childers in tort for terminating her for the reason and in the manner he did, and with the consequences he imposed and the consequences which resulted. The State would not be liable to him, for he claims no tort by a state officer or employee against himself. Besides, he could not expect the State to indemnify him when he was statutorily clothed with immunity from Childers’ suit had he pursued it. OCGA § 50-21-25 (a). Although the State might have been liable to Childers under this Act had she sued the State, she did not do so. She did file her suit just within two years of her suspension and firing, which would meet the two-year statute of limitation provided by the Tort Claims Act, OCGA § 50-21-27, but she did not sue the State because she considered Judge Gober to be a county officer, not a state officer.

The Tort Claims Act provides: “In the event that the state officer or employee is individually named for an act or omission for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” OCGA § 50-21-25 (b). No one asked for this, not Gober, who claims the State is potentially obligated to him as indem-nitor, nor the counties, who urge that Gober is a state rather than county official, nor plaintiff Childers, who sees Judge Gober only as the latter. Certainly the State, once it became aware of the suit by service of the third-party complaint upon it, would not voluntarily move to substitute itself as defendant in place of Judge Gober. Why would it subject itself to liability by making itself a party, particularly when Judge Gober himself could assert immunity? And the trial court had no sua sponte obligation to bring in a substitute party. OCGA § 9-11-19 governs the joinder of necessary parties and casts no initiating duty on the trial court in this regard. Neither does OCGA § 50-21-25 (b). That provision, by the way, does not address how the substitution of the State after the suit has been filed can accommodate the pre-suit notice required in OCGA § 50-21-26.

Decided December 5, 1997

Thurbert E. Baker, Attorney General, Brenda H. Cole, George P. Shingler, Deputy Attorneys General, Alan Gantzhorn, Jennifer D. Roorback, Thomas K. Bond, Assistant Attorneys General, for appellant.

Ted B. Herbert, Harry M. Moseley, for appellee.

As a basis for his claim of indemnity, Judge Gober cannot rely on OCGA § 45-9-1 (a) either. That statute permits government institutions to provide liability insurance or contracts of indemnity or self-insurance to its officers, officials, or employees as additional compensation. This protection would be “against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” This goes hand in glove with the statutory immunity found in the Tort Claims Act, for it would cover liability only for which the officer, official or employee is “not immune from liability.” OCGA § 45-9-1 (a). Gober has not alleged nor shown that the State is a self-insurer or indemnitor, even assuming he would have personal liability for the acts of which Childers complains.

There being no basis shown for the waiver of the State’s sovereign immunity from suit brought by Judge Gober against it through his third party complaint, the State was entitled to summary judgment.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A97A1236.
    HARRIS v. THE STATE.
    (494 SE2d 738)
   McMurray, Presiding Judge.

Convicted of the armed robbery of Tammy Nelson, OCGA § 16-8-41, defendant Harris appeals on the grounds that the trial court erred in refusing to have the sheriff serve his witnesses subpoenas and in admitting evidence of similar transactions. We affirm.

Factual Background

Around 10:00 in the evening on July 3, 1994, Nelson and her relatives parked at the Holiday Inn in DeKalb County where they were staying. As they walked toward their rooms, two men arrived in a dark mid-sized American vehicle with tag number CBG297 and jumped out. One of the men (identified by Nelson at trial as Harris) pointed a revolver at her and demanded money. Nelson complied, and the men escaped.

At trial, the court admitted evidence of two similar transactions. The first is that at 3:00 a.m. on June 21, 1994, Lisa Luttrell and Robin Martinez drove to the parking lot of a retailer in the general vicinity of the Holiday Inn to retrieve a car. Two men pulled up in a dark blue four-door American car with a tag having the first three letters “CBG.” One man (later identified as defendant Harris) jumped out with a revolver and demanded their purses, which were surrendered. The men escaped.

The second similar transaction occurred on July 17, 1994. Dr. Cesar Garcia and his family were standing in the same Holiday Inn parking lot when an African-American male (later identified as Demond Johnson) approached them with a revolver and demanded money. When a confrontation erupted, Johnson shot and killed Dr. Garcia and took his wallet. Defendant Harris was identified as the driver of the four-door American getaway car.

Procedural History

During the proceedings related to the Garcia incident, the trial court found Harris indigent and appointed counsel. A jury convicted Harris of murder, felony murder and armed robbery.

Harris was later indicted for the armed robbery of Nelson. He declined assistance of a court-appointed attorney and proceeded pro se. On September 12, the State gave defendant Harris notice of intent to introduce similar transactions and filed its list of witnesses. During a pretrial hearing on September 21, the court informed Harris that he would have the right to subpoena his own witnesses. Harris requested 20 subpoenas from the clerk, which he received. On December 4, Harris filed his list of twenty-eight witnesses, including twenty-two in-state witnesses, one of whom was the incarcerated Demond Johnson. He also moved the court to suppress evidence of the similar transactions.

At a motions hearing on December 11, Harris stated that as an incarcerated, indigent, pro se defendant he had no means of having his subpoenas served, and he requested the trial court to arrange for the sheriff to serve them. The trial court declined, but Harris later renewed his request for assistance in serving the subpoenas. He sought service on Wayne Gray, Patricia Gray and Barbara Nelson, relatives of Nelson who were nearby when the Nelson robbery took place and all of whom resided out of state. The trial court again denied this request, explaining to Harris that he is required to have a basis for the witnesses’ testimony before subpoenaing them. Harris responded that their testimony concerned this case and similar transaction evidence.

The trial court next considered Harris’ motion to suppress evidence of the two similar transactions and ruled that both transactions were admissible. In conjunction with a request by Harris for funds to hire a private investigator to interview witnesses, the trial court raised the issue of the subpoena service again and told Harris he had not informed the trial court of the nature of the witnesses’ testimony. Harris responded that two witnesses were local police detectives (Officers Baumgardner and Ice) who would testify about their involvement in helping witnesses identify Harris in the Garcia incident and who would possibly impeach that identification. The prosecutor then left the hearing so Harris could freely discuss the anticipated testimony from witnesses to be subpoenaed.

The trial court instructed Harris, “What you have to do is show me what it is that they are going to say specifically, not just that you want them in court. . . . What particular evidence do they have that would assist you in the trial?” Harris told the trial court he had subpoenas for Officer Fox, Officer Olere, Lisa Luttrell and Robin Martinez, all of whom were involved in the identification of Harris in the Luttrell incident. He wanted an investigator to question them about the manner in which that identification occurred, and he wanted them subpoenaed. The trial court ruled that the anticipated testimony was not material to Harris’ case, and that these people would be called by the prosecution anyway so no subpoenas were necessary. The trial court then refused Harris’ request for funds for an investigator.

At trial, the prosecution called Lisa Luttrell and Robin Martinez, but not Officers Clere and Fox, to testify about the Luttrell robbery. The State also called Officers Raymond Ice and Aaron McCrea, but not Officer Baumgardner, to testify about the Garcia transaction. Harris repeated his objections to the similar transaction evidence. Of the twenty-eight people on Harris’ witness list, seven were called by the State. When the State rested, Harris tried to call Demond Johnson, who was present, but Johnson refused to testify on the grounds of self-incrimination. Harris then told the trial court that since the trial court had been unwilling to have subpoenas served on his other witnesses, he would present no evidence.

The jury found defendant Harris guilty óf the crime charged. This appeal followed the denial of his motion for new trial. Held:

1. Defendant contends the trial court “erred in admitting evidence of an allegedly similar transaction.”

After detailing the circumstances of the June 1, 1994 armed robbery of Lisa Luttrell and Robin Martinez at a pre-trial similar transaction hearing, the State’s attorney stated that this “incident is similar not only in location [and] very close to the Holiday Inn [where the victim in the case sub judice was assaulted and robbed], but [that] it was very close in time, that the scheme was basically the same, that the identity is the same and that [the State seeks to] introduce it to show motive, and course of conduct.” The trial court then took judicial notice of a similar transaction hearing in proceedings involving defendant’s earlier prosecution (and subsequent conviction) for the July 17, 1995 armed robbery and murder of Dr. Cesar Garcia. It is undisputed that the trial judge in the case sub judice presided in the Garcia murder case and that, at a similar transaction hearing in that case, the State’s attorney stated a proper purpose for admission at trial of the incident in the case sub judice. See Harris v. State, 268 Ga. 412 (490 SE2d 96); Johnson v. State, 266 Ga. 775, 778 (6) (470 SE2d 637). Specifically, the similar transaction hearing transcript in the Garcia murder case reveals that the State’s attorney gave a detailed account of the three criminal transactions in question (i.e., the Garcia murder, the Luttrell and Martinez armed robbery and the armed robbery in the case sub judice), pointed out the striking similarities of these offenses and then stated, “that that evidence should be presented to a jury because it would go to show the defendant’s intent, common scheme and plan and motive.” Under these circumstances, and in light of the fact that the incident in the case sub judice was properly admitted as a similar transaction in the Garcia murder trial, we find neither error nor infirmity which could possibly have deprived defendant of a fair trial. Saying otherwise not only ignores that the State’s attorney proffered a proper purpose for admission of the similar transaction evidence, but also fails to appreciate the symmetrical logic authorizing the trial court’s procedure taking judicial notice of the similar transaction proceedings in the Garcia murder proceedings — all without discounting the State’s burden under Williams v. State, 261 Ga. 640, 642 (1) (b) (409 SE2d 649). If the purpose for admitting proof of the crime in the case sub judice at the Garcia murder trial was proper, then the purpose for admitting proof of the Garcia murder in the case sub judice must also be proper.

2. Defendant Harris also contends the “trial court erred in failing to provide for service of [his] witness subpoenas.”

The victim, a 27-year-old insurance professional, testified at trial and positively identified defendant as the perpetrator of the crime charged. The victim specifically testified that she first observed defendant and an accomplice drive by in the hotel’s parking lot; that the parking lot’s lights gave her “above average” illumination of the crime scene; that she watched defendant point a revolver at her mother and that she then looked directly at defendant from a distance of “about three feet” as defendant pointed the gun at her. The victim further explained that she exchanged words with defendant during this encounter; that she had a clear view of defendant and that defendant’s face was not covered or disguised in any way during the armed robbery. We believe that this overwhelming evidence of defendant’s guilt renders harmless any possible error the trial court may have committed in failing to issue subpoenas for the police officers who collected identification evidence from the similar transaction victims. Davis v. State, 216 Ga. App. 580, 582 (3) (455 SE2d 115).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Eldridge, J., concur. Senior Appellate Judge Harold R. Banke concurs in Division 1 and dissents in part. Beasley and Ruffin, JJ, dissent.

Beasley, Judge,

dissenting.

I respectfully dissent.

1. In his first enumeration of error, Harris argues he was denied his right to compulsory process under the Georgia Constitution. Art. I, Sec. I, Par. XIV guarantees a criminal defendant the right to “compulsory process to obtain the testimony of that person’s own witnesses.” Yet the trial court below refused to have the sheriff serve Harris’ subpoenas on the grounds that Harris did not articulate to its satisfaction the materiality of the testimony anticipated from each witness. The trial court’s post-trial finding that Harris refused to identify the names and addresses of the witnesses is clearly erroneous, for prior to the pretrial hearing on this matter Harris had filed his list of witnesses with addresses, to which list he referred in the hearing. At that hearing he also told the court he had the subpoenas in hand with the witnesses’ names thereon.

The issue is whether an indigent, incarcerated, criminal defendant must demonstrate to the court’s satisfaction the materiality of the testimony of in-state witnesses whom he wishes to call before the court is obligated to have the sheriff serve the subpoenas.

The Georgia constitutional right of a criminal defendant to compulsory process means that the court must have a sheriff, free of charge, serve subpoenas of a criminal defendant so as to effectuate this right. Harpe v. State, 134 Ga. App. 493, 497-498 (3) (214 SE2d 738) (1975). See Shaw v. State, 163 Ga. App. 615, 618 (2) (294 SE2d 676) (1982) (constitution requires sheriff to exercise ordinary diligence in serving criminal defendant’s subpoenas), rev’d on other grounds, 251 Ga. 109 (303 SE2d 448) (1983). “It would never do to hold, as to a prisoner confined in jail, who might be wholly friendless, penniless, and unknown, that he should be required to serve the subpoenas upon his witnesses.” Paulk v. State, 5 Ga. App. 567, 569 (1) (63 SE 659) (1909).

In Roberts v. State, 72 Ga. 673 (1884), the trial court refused to furnish an officer to execute an order requiring an incarcerated witness to appear for the defendant at trial. The Supreme Court of Georgia reversed the conviction, explaining that the Georgia Constitution’s guarantee of compulsory process required an officer of the court to execute process without cost to defendant. Id. at 676-677. “Without the officer to execute [the process], it was ‘mere ashes on the lips’ — a mere brutum fulmen” Id. at 676. See Watts v. State, 14 Ga. App. 600 (81 SE 902) (1914) (even though represented by counsel, incarcerated defendant entitled to have sheriff serve subpoenas). See also Ga. Const, of 1983, Art. I, Sec. I, Par. XXIV (“No person shall be compelled to pay costs in any criminal case except after conviction on final trial”); OCGA § 15-16-21 (e) (“All costs arising from [sheriff’s] services rendered in felony cases shall be paid from county funds whether the defendant is convicted or acquitted”).

The trial court conditioned Harris’ right to compulsory process on his showing to the court’s satisfaction “what it is that [the witnesses] are going to say specifically” and on showing to its satisfaction the materiality of that testimony. Yet any party to a criminal or civil action may serve subpoenas without first demonstrating the content or materiality of the anticipated testimony. The question here is not under what circumstances a subpoena may be quashed, which would include an inquiry into materiality. See OCGA § 24-10-22; Morris v. State of Ga., 246 Ga. 510, 511-512 (2) (272 SE2d 254) (1980). Subpoenas are issued, signed and sealed in blank to any party merely requesting them. OCGA §§ 24-10-20; 24-10-21. The subpoenas may then be served by a sheriff, his deputy, or anyone over 18, or by registered or certified mail, again without any showing to any court. OCGA § 24-10-23.

OCGA § 17-7-191, which Harris does not challenge as unconstitutionally restrictive, provides that a criminal defendant “may, upon application to the committing judicial officer or to the clerk of the court to which he is committed or bound to appear for trial, obtain subpoenas for such witnesses as he deems material for his defense.” This statute implements the constitutional guarantee of compulsory process by allowing a defendant to obtain and serve subpoenas on those witnesses whom he, not the court or the prosecution, deems material. See Jackson v. State, 184 Ga. App. 133, 134-135 (1) (360 SE2d 907) (1987). The court, after all, has the authority to compel the attendance of witnesses, as recognized in Teat v. State, 181 Ga. App. 735, 736 (353 SE2d 535) (1987). But the statute nevertheless does contemplate that someone, namely the defendant, determines the testimony to be material. Such must be done in good faith.

Thus, if a court has concerns that a pro se defendant is abusing his constitutional right by seeking to employ public resources to serve subpoenas on witnesses who clearly do not possess relevant information, the court may request defendant, in a hearing without the presence of the State, to indicate the materiality of the witnesses to be served. For example, Harris listed the then-Attorney General of Georgia as a witness, even though nothing indicates he would have relevant knowledge. If dissatisfied with defendant’s explanation, the court should follow the procedure approved in Myron v. State, 248 Ga. 120, 122 (9) (281 SE2d 600) (1981).

In Myron, the trial court had the pro se defendant meet with appointed counsel, whom defendant had rejected as trial counsel, for the purpose of conferring as to which witnesses would be material to his defense. Upon the statement of counsel that a witness may have relevant testimony, the court without further inquiry issued and had served a subpoena on the witness. Id. at 123.

By this procedure a court-appointed advocate, acting on defendant’s behalf with every possible inference in his favor, rather than the court, determines possible materiality as a threshold matter before the expenditure of both public monies and the time of public employees, and before the disruption of witnesses’ lives. Public resources are then not expended unnecessarily in serving subpoenas on persons who unquestionably have no testimony possibly relevant to the case, nor are the lives of such people unnecessarily disrupted. The burden on the defendant’s constitutional rights is virtually nonexistent, and the statutory requirement that the defendant first deem the testimony material is met.

Harris’ case illustrates this point. The trial court was dissatisfied with Harris’ fairly detailed explanation that he wanted certain officers subpoenaed (all of whom were on the State’s witness list) for purposes of challenging the identification procedures followed in the Luttrell and Garcia incidents. The court interrupted Harris to instruct how he should challenge those procedures without having to call the officers, even though Harris repeated that he wanted to question the officers before the jury. Clearly the court was not acting on Harris’ behalf with every inference in his favor, nor could it do so in its role as an impartial neutral. Once the court determined its dissatisfaction with Harris’ explanations, it should have appointed counsel for the sole purpose of reviewing the witnesses with Harris to make a threshold determination of materiality of their potential testimony. The court should have then had subpoenas served on all witnesses whom counsel deemed may have possibly material testimony.

The prosecution should not be a part of this process. Ivey v. State, 4 Ga. App. 828, 830 (1) (62 SE 565) (1908), held that only “the prisoner and his counsel[ ] should determine what witnesses will be needed in the defense. It would be unreasonable to hold, in the absence of clearest legislative declaration to the contrary, that the defendant, in order to enjoy his constitutional right of compulsory process for the attendance of [his in-state witnesses], should inform the State’s counsel of the names of these witnesses, and disclose to him the materiality of their testimony. . . . We seriously doubt that such a limitation upon the guaranteed compulsory process could be upheld as against proper constitutional attack.” The procedure should take place in camera without the prosecution present.

The Georgia Constitution is markedly different from the .United States Constitution, which provides that the accused shall have the right “to have compulsory process for obtaining witnesses in his favor.” U. S. Constitution, Amendment VI. The United States Supreme Court has held that the language “in his favor” means that a criminal defendant must “make some plausible showing [to the court] of how [the witness’] testimony would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (102 SC 3440, 73 LE2d 1193) (1982). See Fed. R. Crim. P. Rule 17 (b) (government need subpoena witnesses for indigent defendants only “upon a satisfactory showing [to the court] that the presence of the witness is necessary to an adequate defense”); Washington v. Texas, 388 U. S. 14, 16 (87 SC 1920, 18 LE2d 1019) (1967) (violation of Sixth Amendment where defendant deprived of “relevant and material” testimony “vital to the defense”); Wingfield v. State, 159 Ga. App. 69, 70-71 (282 SE2d 713) (1981) (materiality of unsubpoenaed testimony considered where only Sixth Amendment violation raised). The language “in his favor” does not appear in the Georgia Constitution.

OCGA § 17-8-25, which requires a defendant to show the court the content and materiality of a witness’ testimony, applies only where the witness has in fact been subpoenaed and has failed to appear at trial and defendant seeks a continuance. See, e.g., Gay v. State, 220 Ga. App. 78 (467 SE2d 383) (1996). The court did not provide Harris with the means to serve a subpoena on anyone. Even if this statute were applicable, where OCGA § 17-8-25’s required showings “are at war with the accused’s constitutional guarantee of compulsory process to obtain the testimony of witnesses,” the statute must yield to accommodate defendant’s request to compel the witnesses’ attendance. Murphy v. State, 132 Ga. App. 654, 655-656 (1) (209 SE2d 101) (1974). See McGuire v. State, 185 Ga. App. 233, 236 (1) (363 SE2d 850) (1987) (where OCGA § 17-8-25 fails to protect fully defendant’s right to compulsory process, court may look solely to state or federal constitution). But defendant must be “diligent in attempting to procure the attendance” of the witnesses. Burney v. State, 244 Ga. 33, 40 (257 SE2d 543) (1979).

OCGA § 24-10-94, which requires a defendant to prove the materiality of subpoenaing an out-of-state witness, would have applied to only five of the twenty-eight witnesses on Harris’ list, and to none of the four DeKalb County officers he orally identified as necessary to his defense. Because out-of-state witnesses are beyond the trial court’s jurisdiction and subpoena power, the state constitutional provision on compulsory process does not apply. Hughes v. State, 228 Ga. 593, 597 (3) (187 SE2d 135) (1972). Materiality is also considered where the witness to be subpoenaed is a confidential informant. See, e.g., Moore v. State, 187 Ga. App. 387, 388-389 (2) (370 SE2d 511) (1988); Bennett v. State, 153 Ga. App. 21, 27-28 (IV) (264 SE2d 516) (1980).

2. As in Moore, 187 Ga. App. at 392 (2), “[hjaving determined that error of a constitutional magnitude has occurred in this case, [it is to be tested] for prejudice. If the record reveals by evidence beyond a reasonable doubt that the error . . . did not affect the verdict then the error is harmless; otherwise, reversal is required.” (Citations omitted.) The test presumes reversal is required unless the State shows by the record that no reasonable doubt exists that the error was harmless.

Harris’ post-trial testimony that the court did not allow him to subpoena two alibi witnesses is to no avail, for these names did not appear on the witness list which was the basis for his subpoena request. Harris’ own counsel from the Garcia trial stated that Harris had not told him these individuals could serve as alibi witnesses to the Nelson robbery, even though the Nelson robbery was introduced at the Garcia trial as a similar incident. Besides, Harris’ counsel was unable to locate them at the referenced address. The failure to serve subpoenas on these two witnesses, and on the seven witnesses from his list who appeared at trial for the State, was harmless. Demond Johnson, also on the list, did appear but refused to testify on Fifth Amendment grounds. And the failure to serve subpoenas on the out-of-state witnesses was not contrary to law, for they were beyond the court’s jurisdiction.

But the failure to serve subpoenas on the 12 absent DeKalb County officers was not harmless beyond a reasonable doubt. Eleven of these officers were so important to this case that the State had listed them on its own witness list. According to the trial testimony, at least five were involved in assisting witnesses identify Harris. Wingfield held that the failure to subpoena officers who could possibly impeach a witness’s identification of the defendant required reversal. 159 Ga. App. at 72. See Cofield v. State, 247 Ga. 98, 106 (274 SE2d 530) (1981) (failure to subpoena witness who was at crime scene harmful); Teat, supra, 181 Ga. App. at 736 (harmful to fail to continue trial where alibi witness absent).

Nor can we say that the failure to serve subpoenas on the other six in-state residents was harmless beyond a reasonable doubt. Although I doubt the Attorney General had material knowledge, the State presented no evidence or argument that any of these absent witnesses, including the officers, lacked material knowledge. Nelson’s positive identification of Harris does not establish beyond reasonable doubt that the absence of these witnesses had no effect on the verdict, for identification was the primary issue at trial. Depriving Harris of the opportunity to challenge identification through others involved in the case or in the similar transactions cannot be held at this juncture to be harmless error.

Because of the error discussed in Division 3, a new trial is required. Were it not for that error, this Court should remand the case to the trial court with direction to follow the Myron procedure and provide a new trial only if it received the statement of counsel that the witnesses were material.

3. The second enumeration of error is the admission of evidence of the Garcia transaction. Harris contends the State wholly failed at the pretrial hearing or at trial to specify its purpose for this evidence.

To introduce evidence of similar transactions, the State “must make three affirmative showings,” the first of which is the express designation of an appropriate purpose for the evidence (such as identity, motive, guilty knowledge, intent, etc.). Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “[T]he party offering the prior act evidence must show and the court must affirmatively find . . . that the party offering the evidence has an appropriate purpose for seeking its introduction into evidence and is not seeking to try and show that, because of an unconnected act in the accused’s past, the accused should be convicted of the present charge.” Barrett v. State, 263 Ga. 533, 535 (2) (436 SE2d 480) (1993). See Williams, supra at 643; McClain v. State, 220 Ga. App. 474, 476 (5) (469 SE2d 756) (1996).

The State cannot bypass this showing. Harris v. State, 222 Ga. App. 52, 55 (2) (b) (473 SE2d 232) (1996), refers to this express showing by the State as “the. most important procedural aspect of Williams.” Stephan v. State, 205 Ga. App. 241, 243 (2) (422 SE2d 25) (1992), held that where the prosecutor did not affirmatively state on the record the purpose for the similar transaction evidence, the conviction should be reversed. Compare McTaggart v. State, 225 Ga. App. 359, 365 (2) (483 SE2d 898) (1997) (where prosecutor stated in written notice the purpose for the evidence, failure to make oral announcement harmless).

Decided December 5, 1997

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

At the pretrial hearing the State gave notice that the purpose for which it sought to introduce the Luttrell robbery was to show motive for the indictment on trial and course of conduct. As to the Garcia murder, the court ordered that a portion of the transcript from a Garcia pretrial hearing be appended to the transcript of the pretrial hearing in this case. Although in that excerpted transcript the State announced an appropriate purpose for admitting the Nelson robbery in the Garcia case, the State never announced to the court or to Harris any purpose for admitting the evidence of the Garcia transaction in this case. The purpose in this robbery case may or may not have been identical to that announced in the murder case.

Without any such announcement, the trial court could not and in fact did not rule on the legitimacy of any specific purpose for which this testimony was offered.

The court should have conducted a Williams hearing and, upon a sufficient showing by the State, made the required findings before allowing in evidence of the Garcia incident.

I am authorized to state that Judge Ruffin joins in this dissent and Senior Appellate Judge Harold R. Banke joins in Divisions 1 and 2 of this dissent.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A1386, A97A1387.
    INSURANCE COMPANY OF NORTH AMERICA v. ALLGOOD ELECTRIC COMPANY, INC.; and vice versa.
    (494 SE2d 728)
   Beasley, Judge.

These two appeals are from portions of the trial court’s judgment on a motion for j.n.o.v.

Insurance Company of North America, the prime contractor’s surety on a state-owned construction project, appeals from the denial of its j.n.o.v. motion awarding a second-tier electrical subcontractor, Allgood Electric Company, Inc., benefits under the prime contractor’s statutory payment bond. See OCGA § 13-10-1 (b) (2) (A). We affirm the judgment against the surety because there is proof authorizing the jury’s finding that Allgood is entitled to benefits under the payment bond for the unpaid balance of its lump-sum subcontract with the prime contractor’s security system contractor, Micro Management Associates, Inc.

Allgood cross-appeals from that part of the same judgment entered in favor of the surety notwithstanding a jury’s verdict awarding Allgood attorney fees and expenses of litigation under OCGA § 13-6-11.

We reverse the ruling because Allgood’s proof that the surety refused to negotiate its pre-suit claim under the payment bond authorized the jury’s finding that the surety acted in bad faith in dealing with Allgood and because competent evidence supported the amount of the award.

The State of Georgia contracted with Ray Bell Construction Company (“Ray Bell”) to build a prison in Wilcox County, Georgia, and Ray Bell contracted with Micro to install the prison’s security system. Micro then subcontracted with Allgood to wire the security system. According to this subcontract’s “FINAL PAYMENT” provision, Micro agreed to pay Allgood $350,500 when the wiring was complete, less any advances paid under the subcontract’s “PROGRESS PAYMENTS” provision giving Allgood the right to apply for monthly progress payments for “the value of the Work completed” during performance.

After receiving two progress payments from Micro for work performed in June and July 1990, Allgood received three consecutive progress payments in August, September and October 1990. Allgood received these payments via checks from Ray Bell payable to Micro and Allgood for sums exceeding the amount of work performed by Allgood. Allgood endorsed the checks, but retained only proceeds reflecting payment for work it had performed. Allgood paid the residual to Micro.

Allgood submitted a $65,926.65 progress payment request, dated November 19, 1991, certifying anticipated payment advances, plus retainer, for about 99 percent of the work under its subcontract with Micro. This request was not honored. Allgood instead accepted a joint check from Ray Bell payable to Micro and Allgood for $34,208.60. All-good endorsed this check, kept the proceeds and continued work. About a month later, Allgood executed a document entitled, “SUBCONTRACT/PURCHASE ORDER RECEIPT AFFIDAVIT AND PARTIAL LIEN WAIVER,” certifying payment advances totaling $240,448.88 (about 69 percent of the $350,500 contract price) and releasing “all claims arising out of said subcontract and the project through December 1991 . . . , including but [not] limited to claims representing mechanics liens.”

Although Allgood submitted progress payment requests for December 1990 and January, February, March and April 1991, All-good did not receive another payment until May 1991. Allgood thereafter continued work, but received only four more progress payments. Because these payments did not cover Allgood’s outstanding payment requests, Allgood notified the surety of its claim in a letter dated April 30, 1992. The surety responded in a letter dated June 4, 1992, advising Allgood that the matter was under investigation. All-good thereafter continued work and completed the job in July 1992.

Micro went out of business, and Ray Bell’s attorney posted a letter to Allgood’s president accusing Allgood of shoddy work. This attorney informed Allgood that “[i]t is Ray Bell’s position that All-good has been paid all monies which are due to it at this time.” When the surety failed to respond to Allgood’s claim for almost a year, All-good filed an action against Micro, Ray Bell and the surety in Fulton County Superior Court on April 20, 1994, seeking recovery for the remaining $87,543.80 balance under its contract with Micro. Allgood also sought over $100,000 worth of extra work it allegedly performed for Ray Bell and requested attorney fees and expenses of litigation pursuant to OCGA § 13-6-11.

Allgood later abandoned its action against Micro and Ray Bell and proceeded solely against the surety. Ray Bell remained in the suit and pressed a counterclaim against Allgood for allegedly performing substandard work. After a trial, a jury awarded Allgood the entire unpaid balance of its contract with Micro, $87,543.80, and granted Allgood $48,276.21 in attorney fees and expenses of litigation under OCGA § 13-6-11. The jury did not accept Allgood’s claim for extra work and rejected Ray Bell’s claim against Allgood for substandard performance.

Case No. A97A1386

1. The surety contends the trial court erred in denying its motion for j.n.o.v., arguing that Allgood’s November 19, 1991 progress payment request certifying completion of about ninety-nine percent of the job, along with Allgood’s execution of the partial lien waiver a month later, demands a judgment for Allgood for no more than the subcontract’s ten percent retainer plus one percent of the work which Allgood did not certify as complete in its November 1991 progress payment request, i.e., $37,013.50. The surety also contends the jury should have given it credit for the total balance of the three joint progress payment checks Ray Bell tendered to Micro and Allgood for work which Allgood and Micro completed in August, September and October 1990. These assertions are without merit.

Nothing in Allgood’s November 1991 payment certification or the December 1991 partial lien waiver diminished Micro’s promise to pay Allgood $350,500 when the wiring job was complete. Further, we find no authority authorizing a subcontractor to unilaterally retain proceeds of a joint check for work which the subcontractor has not performed. Saying so would sanction theft, which we refuse to do. Accordingly, since it is undisputed that Allgood kept only money from the joint checks that it had earned and then gave the rest to Micro, and since there is proof that Allgood competently completed its work in July 1992, the jury’s verdict awarding Allgood the unpaid balance of its lump-sum contract with Micro was authorized. The trial court did not err in denying the surety’s motion for j.n.o.v. with regard to Allgood’s claim for payment under Ray Bell’s payment bond. See Beasley v. Paul, 223 Ga. App. 706 (1) (478 SE2d 899) (1996).

2. The surety’s second enumeration of error challenging the admission of testimony regarding Allgood’s reason for executing the partial lien waiver in December 1991 provides no basis for reversal. Any such testimony admitted is harmless since the partial lien waiver does not evidence an agreement relinquishing Allgood’s right to recover the full benefit of its lump-sum performance contract with Micro.

Case No. A97A1387

3. We agree with Allgood that the trial court erred in granting a judgment in favor of the surety notwithstanding the jury’s verdict awarding Allgood attorney fees and expenses of litigation under OCGA § 13-6-11.

“ ‘A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is no error to deny the motion. (Cits.)’ Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).” Ga. Ports Auth. v. Southeast Atlantic Cargo &c., 202 Ga. App. 318, 324 (3) (414 SE2d 232) (1991).

“A trial judge cannot grant motions for directed verdict or j.n.o.v. on any issue if ‘any evidence’ exists to support that issue. See Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (470 SE2d 455) (1996).” Beasley v. Paul, 223 Ga. App. at 707 (1).

(a) OCGA § 13-6-11 Liability. The trial court granted the surety’s motion for j.n.o.v. as to Allgood’s claim under OCGA § 13-6-11 because Allgood’s attorney could not testify and segregate, with any degree of certainty, time and expenses attributable to Allgood’s successful breach of contract claim from time and expenses attributable to Allgood’s unsuccessful extra-work claims. (Nor could this attorney say how much time was necessary to defend Ray Bell’s counterclaim.) Quoting Arford v. Blalock, 199 Ga. App. 434, 439 (10) (405 SE2d 698) (1991), the trial court specifically reasoned that such vague testimony defeated the jury’s attorney fees and litigation expenses award because “[n]o evidence was presented from which the jury could determine what portion of the total amount of attorney time and litigation expenses incurred in this multi-count, multi-defendant litigation was attributable to the particular claim. ...”

We find this logic misplaced because, notwithstanding the success or validity of Allgood’s unsuccessful claims or Ray Bell’s counterclaim, Allgood tendered proof that the surety engaged in “wanton and excessive indulgence in litigation” by refusing, in bad faith, to investigate, negotiate or discuss any claim, set-off or defense with Allgood between the time Allgood posted its April 30, 1992 claim letter and the time Allgood initiated suit in Fulton County on April 20, 1994. Such circumstances not only distinguish this case from the rule set out in Arford v. Blalock, 199 Ga. App. 434, 439 (10), supra, but also removes it from the rule in Lineberger v. Williams, 195 Ga. App. 186, 188 (3) (393 SE2d 23) (1990) (that recovery is not possible under OCGA § 13-6-11 for attorney fees and expenses incurred for defending a claim). Had the surety aspired to negotiate or simply communicate with Allgood before forcing litigation, alternative dispute resolution would have provided a chance for avoiding this protracted and expensive lawsuit.

Just as in Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317) (1972), and Western &c. R. Co. v. Smith, 15 Ga. App. 289 (82 SE 906) (1914), the surety’s “so sue me” gamble authorized an OCGA § 13-6-11 award for all of Allgood’s attorney fees and expenses of litigation. See Tift v. Towns, 63 Ga. 237, 242 (3) (1879); and Presiding Justice now Chief Justice Robert Benham’s special concurrence in Latham v. Faulk, 265 Ga. 107, 108-109 (454 SE2d 136) (1995). See also Crocker v. Stevens, 210 Ga. App. 231, 238 (8) (435 SE2d 690) (1993).

(b) Allgood’s Proof of Attorney Fees and Litigation Expenses. Gloria A. Alday, Allgood’s president, testified about work which was billed as performed by Allgood’s trial attorney and at least six other individuals — two named lawyers, an unnamed associate attorney, two or more unnamed paralegals and “Walker Hulbert.” Billing records were used by the witness to refresh her recollection of the invoices received and which she was responsible for reviewing and paying. Allgood’s president knew personally some of the precise bases for the fees because she was involved in the preparation for trial three times and for settlement talks, and she knew of the motions and responses required for the litigation. She considered the fees reasonable and comparable to fees the company incurred from other attorneys in the past and in accord with her investigation of fees charged by others.

Allgood’s trial attorney then testified and expressed opinion that Alday’s account of the attorneys’ billings was necessary and reasonable. The plaintiff’s attorney himself is competent to testify as to his opinion on reasonable fees, which he did. Bankers Health &c. Ins. Co. v. Plumer, 67 Ga. App. 720, 727 (2) (21 SE2d 515) (1942); First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981). He testified as to the rates of the various people who worked on the case, his background and rationale for the rates, his familiarity with the litigation history, the type of work which was done, and the reasonableness of it and of the fees charged. He was cross-examined to the extent defendant desired.

Both witnesses gave the same figure for the total amount of All-good’s attorney fees and litigation expenses, an amount which mirrors the jury’s $48,276.21 verdict.

Competent evidence supported that verdict, not only as to the substantive ground but also as to the reasonableness of the amount awarded by the jury.

Judgment affirmed in Case No. A97A1386. Judgment reversed in Case No. A97A1387.

Andrews, C. J., Birdsong, P. J., Pope, P. J, and Johnson, J., concur. Smith, J., concurs in the judgment only. McMur-ray, P. J., and Eldridge, J., concur in part and dissent in part. Blackburn and Ruffin, JJ, not participating.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully concur as to Divisions 1, 2 and 3 (a) of the majority opinion, but respectfully dissent with regard to Division 3 (b) because, in my view, the trial transcript reveals that all but Allgood’s trial attorney’s testimony regarding the work he performed constitutes 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), cert. denied at 214 Ga. App. 906. This is not to say, however, that I believe the deficiency in Allgood’s proof of damages completely defeats the jury’s verdict. As in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467); Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), supra, and Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606), I believe the unauthorized jury verdict in the case sub judice may be cured upon reversal in the cross-appeal (Case No. A97A1387) and remand of the case “ Tor [a new trial] to establish the amount of attorney fees attributable to (probative evidence offered at [trial]). See Southern Cellular Telecom v. Banks, [supra]. Mitcham v. Blalock, [supra].’ R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 585 (5), 586 (451 SE2d 812). See City of College Park v. Pichon, 217 Ga. App. 53, 55 (4) (456 SE2d 686).” Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. See Pure Oil Co. v. Dukes, 107 Ga. App. 326, 327 (3), 328 (130 SE2d 234). With this view in mind, and since it appears from the trial transcript that Gloria A. Alday testified not from her own recollection but almost exclusively from Allgood’s attorney’s billing sheets, I find it appropriate to clarify confusion arising from this Court’s holdings in Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776 (485 SE2d 34), and N.D.T., Inc. v. Connor, 196 Ga. App. 314, 315 (6), 316 (395 SE2d 901), regarding the admissibility of attorney billing sheets under Georgia’s Business Records exception to the hearsay rule, OCGA § 24-3-14. Compare Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669 (3) (476 SE2d 43).

(a) Allgood’s Proof of Attorney Fees and Litigation Expenses. Gloria A. Alday, Allgood’s president, testified (apparently from attorney billing invoices) about work which was purportedly performed by Allgood’s trial attorney and at least six other individuals — two named lawyers, an unnamed associate attorney, two or more unnamed paralegals and “Walker Hulbert.” Allgood’s trial attorney then testified, relying on Alday’s testimony and opining that her account of Allgood’s attorneys’ billings was necessary and reasonable. Both witnesses gave the same figure for the total amount of Allgood’s attorney fees and litigation expenses, an amount which mirrors the jury’s $48,276.21 verdict. I believe that the problem with this award is that all but Allgood’s attorney’s testimony regarding the work he performed himself constitutes hearsay, “and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, [supra].” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32, supra.

Hearsay evidence is defined as “that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). While this definition encompasses many classes of proof, it is fundamental that testimonial hearsay follows when a witness speaks to the truth of something outside the scope of his or her personal knowledge. Green, Ga. Law of Evidence (4th ed.), § 217; 5 Wigmore, Evidence, § 1361 (Chadbourn rev. 1974). An examination of Gloria A. Alday’s attorney fees testimony and Allgood’s trial attorney’s attorney fees testimony in the case sub judice, which I am compelled to include as appendices to this dissent, reveals that the witnesses possess no personal knowledge of the work which was reportedly performed by six or more individuals who represented Allgood but who did not appear or offer testimony at trial. And this deficiency, in my view, is not bolstered by the majority’s observation that “Allgood’s president knew personally some of the precise bases for the fees because she was involved in the preparation for trial three times and for settlement talks, and she knew of the motions and responses required for the litigation.” I simply do not think (as does the majority) that Alday’s general observations of some of Allgood’s attorneys’ activities reveal her “personal knowledge” of the specific work which was reported to her in All-good’s attorneys’ billing records.

I do not believe that the deficiencies in Allgood’s proof of damages completely defeat the jury’s verdict. As in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra; Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), supra; and Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra, the unauthorized jury verdict in the case sub judice may be cured upon reversal in the cross-appeal (Case No. A97A1387) and remand of the case “ ‘for [a new trial] to establish the amount of attorney fees attributable to (probative evidence offered at [trial]). See Southern Cellular Telecom v. Banks, [supra].Mitcham v. Blalock, [supra].’ R. T. Patterson Funeral Home v. Head, [supra]. See City of College Park v. Pichon, [supra].Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. See Pure Oil Co. v. Dukes, 107 Ga. App. 326, 327 (3), 328, supra, holding that where the plaintiff’s proof does not support a verdict in the amount found by the jury, but authorizes a verdict for some amount in the plaintiff’s favor, the remedy is a new trial.

(b) Georgia’s Business Records Exception. Since no billing records were introduced in the case sub judice, I recognize that this Court is without judicial power to resolve questions raised by Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776, supra, and N.D.T., Inc. v. Connor, 196 Ga. App. 314, 315 (6), 316, supra, regarding the admissibility of attorney billing sheets under Georgia’s Business Records Exception to the hearsay rule, OCGA § 24-3-14. Compare Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669 (3), supra. But because Gloria A. Alday apparently testified relying on such records, I find it appropriate to clarify that Georgia’s Business Records Exception is not a rule subject to indifferent statutory application, but is a venerable exception ascending from principles of necessity and trustworthiness. Fielder, Bros. & Co. v. Collier, 13 Ga. 496, 499. See OCGA § 24-3-1’s requirement that “[h]earsay evidence is admitted only in specified cases from necessity.” OCGA § 24-3-1 (b). Also see 5 Wigmore, Evidence, §§ 1517-1561 (Chadbourn rev. 1974).

In Fielder, a case involving proof of a volume of cotton shipped from Apalachicola, Florida, to Liverpool, England, Chief Justice Joseph H. Lumpkin (writing for the court) reasoned that a large fac-torage and commission house’s shipping records, while hearsay, were nonetheless the best evidence of the transaction, when kept in the regular course of business, because it would have been impractical and unreasonable to expect “[t]he weighers, wharfingers, and numerous subordinates who handled this cotton [to recall] the multitude of transactions thus occurring every day.” Id. at 499. The court also reasoned that the fiduciary relationship between the shipping agent and the defendant rendered the shipping records trustworthy. Id. at 500. Similar logic does not apply in the case sub judice.

Allgood’s lawyers are neither disinterested recording agents, nor clerks, “weighers,” or “wharfingers.” They are but several attorneys who performed professional services for Allgood while — at the same time — expected payment for these services from the surety under Allgood’s claim for attorney fees and litigation expenses. Under such circumstances, I find no reason of necessity which relieved these lawyers of their duty to answer, before the jury, for the specific billings Gloria A. Alday proffered for recovery under OCGA § 13-6-11. Accordingly, I would adhere to the principle initially recognized in Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra, that possible deficiencies, suppressions and sources of error which may lie within attorney billing records are tested best by confrontation and cross-examination. It thus appears elemental to me that recording legal services is not merely a matter of mechanical routine which, alone, establishes the indicia of reliability required for admission of records under Georgia’s Business Records Exception. The recording of time and expenses by an opposing party’s agent or legal representative, in my view, necessarily involves an account of judgment which, when embraced in a business memorandum, is not admissible under OCGA § 24-3-14. See Wesley v. State, 225 Ga. 22, 23 (2) (165 SE2d 719); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 875 (2), 879-881 (99 SE2d 370). I therefore believe that Georgia’s Business Records Statute, as suggested in Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776, supra, and N.D.T., Inc. v. Connor, 196 Ga. App. 314, 315 (6), 316, supra, must “not go to the extent of rendering admissible self-serving memorandums of [the] kind [described by Gloria A. Alday in the case sub judice]. Young v. Landers, 31 Ga. App. 59 (119 SE 464). A contrary ruling would render admissible files of correspondence and all kinds of writings if made by one in connection with the operation of a business.” Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744, 747 (4) (159 SE2d 125).

I am authorized to state that Judge Eldridge joins in this opinion.

Appendix

ALLGOOD’S TRIAL ATTORNEY’S ATTORNEY FEES TESTIMONY

“THE COURT: Mr. Crewdson, [Allgood’s trial attorney] tell the jury how you arrived at your attorney’s fees, will you, please? MR. CREWDSON: The attorney’s fees in this case, Ms. Alday previously testified to you the number of hours that have been charged to her by the various lawyers in this case. Mr. Hughes’ rate in this particular matter was two hundred twenty-five dollars per hour. My rate was one hundred ninety-five dollars per hour. Mr. Christy’s rate was one hundred dollars per hour. There was some additional paralegal time in getting the paperwork together. I believe our time was billed for that at forty-five an hour; Mr. Christy’s paralegal at fifty an hour. I have been in the practice of construction law for eight years. I have handled payment bond claims on — as the plaintiff and as the defendant, and I have done that over the eight-year period in Atlanta for two different law firms practicing construction law. In my opinion and in my experience, the rates of two twenty-five per hour for Mr. Hughes at his experience level, one ninety-five per hour at my experience level, and one hundred dollars per hour for Mr. Christy’s experience level are comparable and competitive in the Atlanta market, and in Mr. Christy’s for Mr. Christy’s level of experience, as well, since he’s not from Atlanta. I find that those rates are reasonable. Based on my experience, I am familiar with the litigation history of the case, having reviewed the litigation file. Having participated in the litigation, and based on the activities that have been necessary to pursue this claim to trial, I believe that the fees charged in this particular matter as testified to by Ms. Alday are reasonable, in light of the litigation history of the case. Among other things, this particular matter has been prepared for trial three times, due to scheduling issues through no fault of any particular person. That’s the way the process works. But getting ready for trial three times gets to be fairly expensive. There have been eight motions to respond to filed by the opposition. You have to file written responses. That takes some time as well to do that work and research. In addition, there has obviously been the work of getting up to speed on the history of the case and what it’s about. And in any construction dispute, there is a voluminous amount of documentation involved on any type of contract on construction, particularly on a prison job, that necessarily includes quite a bit of time. And I think that the approximately — Ms. Alday testified the actual number, the approximately sixty hours, I believe it was of Mr. Hughes, the approximately ninety hours that I had, approximately a hundred and ten hours for Mr. Christy, was very reasonable actually, in light of litigation history of the case. That’s my opinion. THE COURT: He’s with you [Hughes, another attorney representing Allgood].

“MR. HUGHES: Let me ask one question, Mr. Crewdson. ... I feel like I’m back in moot court. How about the total number, forty-eight thousand two hundred and seventy-six dollars and twenty-one cents for everybody combined? Is it your opinion that’s reasonable? [CREWDSON:] Yeah. That entire amount, as testified to by Ms. Alday, in light of the litigation history, is reasonable, in my opinion. MR. HUGHES: Thank you, your Honor. THE COURT: Excuse me. Does that amount include any expenses other than lawyer time and paralegal time? THE WITNESS: That number does include approximately twenty-two hundred dollars of photocopying, subpoena fees, filing fees, various expenses involved, and couriers in getting a case to trial, and that does include about twenty-two hundred, and I find those expenses . . . certainly very reasonable, in light of the litigation history. THE COURT: Are you through, Mr. Hughes? MR. HUGHES: Yes, sir. THE COURT: You may cross-examine [Jester, trial counsel for Ray Bell and the surety].

“MR. JESTER: Thank you, your Honor. . . . It’s not often I get to do this. [CREWDSON:] I know. I know you’re enjoying it, too. Q. When was Alston and Bird hired to represent Allgood? A. We were retained, if I recall, in August of 1995, probably mid August, if my recollection is correct. Q. Two and a half months ago, approximately? A. Approximately. Seems like a long time. Q. If my notes are right, in that two and a half months, Mr. Hughes spent sixty-nine point one hours. You spent ninety point six hours. Your associate spent one point one hour, and your paralegal spent fourteen point eight hours. That’s over a hundred and seventy hours in two and a half months; is that correct? A. That sounds about right, including the paralegal time. Q. Is it your opinion that a hundred and seventy hours of legal work in two and a half months is reasonable? A. Well, I believe it is when you consider getting prepared for trial three times, responding to eight motions. We’ve been involved in all eight motions. Q. Did you file motions of your own? A. I believe we did file a motion, four or five-page motion to dismiss. Q. Have you made any effort to break down this total attorney’s fees, the amount attributable to the defense of Bell’s counterclaim? A. I honestly would say that’s a very, very, very minor part. I would be surprised if it was more than ten hours. Q. Can you tell the jury what exactly was spent. . . defending the counterclaim versus pursuing the claim against INA [the surety]? A. I would say in defending the Bell counterclaim by itself, it could not have been more than — I’ll be very generous — twenty hours of time. Q. I understand that’s your opinion it could not. Have you broken it down? A. I have not itemized that time because you cannot separate the two claims, and we haven’t. Q. Have you attempted to break down or itemize the time spent pursuing the claim for balance due versus extra work? A. We’ve not divided. The two are inseparable. Q. So you have not broken that time? A. We’ve not broken it out other than, obviously, the legal bills themselves. You may be able to do that. MR. JESTER: That is all I have, your Honor.”

Appendix

GLORIA A ALDAY’S ATTORNEY FEES TESTIMONY

“[ROBERT L. CREWDSON (Allgood’s trial attorney):] Are you the person that receives the legal bills at Allgood? [GLORIA A. ALDAY:] Yes, Sir. Q. Are you the person that reviews those? A. Yes, sir. Q. Are you the person that agrees to pay them? A. Yes, sir. Q. Okay. A. I sign the check. Q. In this particular case, did you review the invoices that came in on this matter? A. I sure did. Q. Okay. Do you recall specifically how many hours of attorney time have been put in this particular matter that you were billed for? A. No, sir. But I’ve got them in my notes. Q. Okay. Do you recall, sitting here without your notes, the various rates charged for those hours or the expenses? A. No, sir. Q. Okay. Would your notes refresh your recollection as to those amounts? A. Yes, sir. Q. Let me show you, once again, Exhibit P-39.1 would like to ask you in terms of Mr. Hughes’ time on this particular case, do you recall how many hours, now having been refreshed, that he has charged to Allgood? MR. JESTER [trial counsel for Ray Bell and the surety]: Your Honor, objection to the question. . . . THE COURT: All Right.

“BY MR. CREWDSON: Q. Ms. Alday, let’s go back to what we were discussing. Do you recall, having now refreshed your recollection from Exhibit P-39, the number of hours incurred by Mr. Hughes involved in this case? A. Yes, sir. Q. How many hours was that? A. Sixty-nine point one. Q. What was the rate for Mr. Hughes’ time? A. Two twenty-five an hour. Q. Okay. How many hours of my time have been charged in this litigation? A. Ninety point six. Q. What was the rate for my time? A. A hundred and ninety dollars an hour. Q. Okay. Was there also an hour or so charged for another associate at Alston and Bird? A. Yes, sir. One point one hour. Q. At what rate? A. One fifty. Q. How many hours of Mr. Christy’s time was incurred and billed to you? A. A hundred and ten point two. Q. What was the rate for Mr. Christy’s time? A. A hundred dollars an hour. Q. How many hours of paralegal time was charged on the case to you? A. Forty-two point eighty, total. Q. And how many hours for that, for the hours performed by the paralegals at Alston and Bird? What are the rate for that? A. Fourteen point eight. Q. What was the rate for the fourteen point eight? A. Forty-five dollars. Q. How about for Walker Hul-bert? A. Twenty-eight. Q. Hours? A. Twenty-eight hours. I’m sorry. Q. At what rate? A. Fifty dollars an hour. Q. And what was the total charged to you for both attorney and paralegal time in this case? A. The fees and expenses were forty-eight thousand two hundred seventy-six twenty-one. Q. And of that amount, how much were the fees and expenses that were charged to you? A. Forty-eight — the expenses? Q. Yeah? A. Two thousand two hundred sixty-four twenty-one. Q. Is forty-eight thousand two hundred seventy-six twenty-one dollars total? A. The total. Q. That you’re seeking in this case from INA[, the surety]? A. Yes, sir. Q. Can you give us some sense, in terms of the task and activities required of your attorneys in this case, some of the things they have had to do? A. Well, we’ve been up here. This is our fourth time to come up and prepare. This is the third time to prepare for trial. We came up first to, we thought, on a settlement hearing. And we didn’t get anywhere on that. And then we came another time, and Mr. Jester had something that was pending in another court, and we were sent home. Then last time we came and prepared, and then we got sent home. And today we — we’ve had to prepare for it three times. Q. And were you involved in each of those preparations? A. Yes, sir, I was. Q. Did that — each of these preparations involve a good deal of time? A. Yes, sir. Q. And in terms of other motions, and things like that, has your lawyer had to handle motions in this case? A. Yes, sir. They have had to handle different motions that they presented on summary judgment motions, and all that has been quite time-consuming. One was about the drawings that we had asked for the drawings, and all. Q. In terms of the motions and the preparing for a trial three times, and other things you’ve referenced, have you reviewed all of those activities and time indicated on the bills? A. Yes, sir. Q. Okay. Have you found any of those charges in your mind to be unreasonable? A. No, sir. Q. Have you had occasion in the past, as Allgood Electric to hire an attorney, from time to time, in middle Georgia? A. Yes, sir. Q. In those instances, have you found the fees charged by Mr. Christy’s firm in this case to be comparable to the other fees that you incurred in middle Georgia for matters? A. Yes, sir. Q. And have you, in the process of getting ready for this case, or any other case, had occasion to investigate various rates involved in the Atlanta law firms? A. Yes. I talked with — talked with my cousin, Robert Whitley, about your rates. And he said those are in line. MR. JESTER: Objection your Honor hearsay.

“THE COURT: That’s pretty much hearsay. It really is. What’s the exception to it, if you have one?

“MR. CREWDSON: Your Honor, I don’t have an exception to the statement she made. And I’m not asking you, Ms. Allgood (sic).

“THE COURT: Excuse me for a moment, please. Ms. Alday. Ladies and Gentlemen, that objection’s well taken. Withdraw it from — remove it from your minds. It’s not admissible. It’s not appropriate. Let me explain to you what hearsay really is so we don’t have a debate on it. Hearsay is the attempt to prove the truth of something by a statement by a witness from which your information comes from a third person. And that third person is not here to tell us, to be cross-examined for the truth of it. As an example, if I’m trying to prove that it’s raining outside, and I say to you, my wife called me on the telephone and told me it’s raining outside, well, here we are sitting in a room with no windows. So if you want to believe it, you have to believe what my wife said, not what I say, because I don’t know it from my own knowledge. That’s true hearsay. Now, the rule has an enormous number of exceptions to it, which I’m not going to go into, at the moment. But basically, when you hear that kind of testimony and you hear what is said, I object to it, it’s hearsay. That’s what hearsay really is. This witness has just told us that trying to prove the reasonableness of these fees by the statement of a Mr. Whitley, who is not here for cross-examination. That’s perfectly — that’s perfect hearsay. And the objection was well-taken. Thank you.

Decided December 5, 1997

Goldner, Sommers, Scrudder & Bass, Carroll G. Jester, Jr., William W. Horlock, Jr., for appellant.

Walker, Hulbert, Gray & Byrd, Charles W. Byrd, John D. Christy, Alston & Bird, William H. Hughes, Jr., Robert L. Crewdson, for appellee.

“BY MR. CREWDSON: Q. Ms. Alday, did you have occasion to find out what Mr. Whitley’s fee was? A. Yes, sir. Q. Okay. Was that fee comparable to the fees of... Alston and Bird? MR. JESTER: Objection, your Honor. There’s nothing to base that comparison on. Mr. Whitley is not here. We don’t know what kind of work he does. There’s nothing to base that on. Further, previously she testified she’s never been involved in litigation.

“THE COURT: I would hope we wouldn’t have to go through a long testimony of counsel. But, generally how this is proved is by the lawyers themselves, how many hours you spent, what your fees are, and you’re also an expert to express an opinion as to whether they are appropriate in the light of the industry you now sit in.

“MR. CREWDSON: Your Honor, I’ll be glad to do that, too.”

       Allgood originally filed suit in Wilcox County on April 1, 1993, but withdrew this action because the surety contested venue.