Braut v. Tarabochia, 46019-6-I.

Decision Date12 February 2001
Docket NumberNo. 46019-6-I.,46019-6-I.
Citation17 P.3d 1248,104 Wash.App. 728
PartiesJohn C. BRAUT, as the successor in interest to Inseafuture, Inc., an administratively dissolved Washington corporation, Respondent, v. Arthur M. TARABOCHIA, Defendant, James E. Wierzbicki and Susan K. Wierzbicki, husband and wife, and the marital community composed thereof; and Washington Federal Savings and Loan Association, a federally chartered savings and loan association, Appellants.
CourtWashington Court of Appeals

Eric Peter Gillett, Jeffrey W. Daly, Seattle, for Appellants.

Arthur M. Tarabochia, Charles Nelson Berry, Seattle, for Respondent.

AGID, C.J.

The Wierzbickis contest the trial court's admission of a photocopy of a promissory note in a mortgage foreclosure action. We conclude that the trial court based its decision to admit the photocopy on tenable grounds and affirm.

FACTS

John Braut, the former president, director, and majority shareholder of Inseafuture, Inc., a Washington corporation that has since been administratively dissolved, claims that on July 28, 1979, he loaned Arthur and Marilyn Tarabochia $30,000 secured by a recorded mortgage on their Seattle home. The Tarabochias never made a payment on this alleged loan.

When the Tarabochias divorced in August 1988, Marilyn received title to their Seattle home. When she died in 1995, her estate sold the property to James and Susan Wierzbicki. Apparently, the title company insuring the sale failed to discover the Inseafuture mortgage when it issued the title insurance, and as a result, funded a quiet title action brought by Marilyn's estate to remove the mortgage. During this proceeding, Braut could not produce any written documentation of the loan, so the court entered summary judgment in the estate's favor. Braut searched his records again and, seven days later, found a photocopy of a document titled "Collateral Agreement to Mortgage," signed by Tarabochia.1 The court granted Inseafuture's motion for reconsideration, and Marilyn's estate voluntarily dismissed its claim.

In March 1997, Inseafuture instituted this action against Tarabochia, the Wierzbickis and Washington Federal Savings and Loan Association, seeking mortgage foreclosure and a deficiency judgment.2 Before trial, the Wierzbickis and Washington Federal filed a motion in limine seeking to preclude admission of the photocopy of the collateral agreement. The trial court reserved its decision on the admissibility of the photocopy and related testimony until after it heard all the evidence. At trial, Braut testified that he transferred $30,000 to Marilyn in an unnamed coffee shop, but he could not remember the form of the transaction. Tarabochia testified that he did not remember Braut ever loaning him or his wife money, that he did not sign the collateral agreement,3 and that before trial, Braut attempted to bribe him by offering him $5,000 to testify that the loan occurred.

At the close of evidence, the trial court decided to admit the photocopy of the collateral agreement:

The parties battled long and hard over whether or not Exhibit 4, the signed copy of the collateral agreement, should be admitted in evidence and collaterally what weight it should be given by the court. It is clear to the court that the preponderance of the evidence indicates that Art's signature on Exhibit 4 is not a forgery or a "cut and paste" job. Accordingly, Exhibit 4 is admitted.

Based on this conclusion, the court entered judgment against Tarabochia in the amount of $388,408.13, plus attorney fees and costs, and ordered that the mortgage be foreclosed.4 The Wierzbickis and Washington Federal appeal.

DISCUSSION

The primary issue in this appeal is whether the trial court abused its discretion in admitting the photocopy of the collateral agreement.5 The Wierzbickis argue that the Best Evidence Rule precludes its admission, that Braut failed to meet the evidentiary standard required by the Uniform Commerical Code to prove its contents, that the trial court applied the wrong burden of proof, and that if the collateral agreement had not been introduced, the trial court's ruling would not have been supported by substantial evidence.

Best Evidence Rule

The Best Evidence Rule, ER 1002, directs that the original is required to prove the content of a writing, recording, or photograph. But, under ER 1003, photocopies are admissible to the same extent as the original unless "a genuine question is raised as to the authenticity of the original" or "in the circumstances it would be unfair to admit the duplicate in lieu of the original." Tegland has suggested that it would be unfair to admit a duplicate if portions of the original were excised or altered in the duplication process, if the duplicate were illegible or inaudible, or if the original had been intentionally and fraudulently destroyed by the party offering the duplicate.6

In their challenge to admitting the note, the Wierzbickis contend that "[i]t is hard to imagine a set of circumstances under which the authenticity of a document could be more questionable than the present one." They cite Braut's inability to remember details about the transaction, his "miraculous" discovery of the copy after summary judgment had been entered against him, his alleged attempt to bribe Tarabochia into testifying that the loan occurred, and his considerable delay in attempting to collect on the alleged loan as evidence of the document's questionable reliability. They also assert that the trial court's failure to discuss the Best Evidence Rule demonstrates that it abused its discretion.

Washington courts have not addressed the circumstances in which a trial court abuses its discretion by admitting a duplicate of questionable authenticity. The Wierzbickis cite a Tenth Circuit decision, United States v. Haddock,7 for the proposition that a trial court must be wary of admitting duplicates "`where the circumstances surrounding the execution of the writing present a substantial possibility of fraud.8'" While this is undoubtedly true, the Haddock court relied on this reasoning to affirm a lower court's refusal to admit a duplicate. Here, we review the court's decision to admit the photocopy for abuse of discretion, and will overturn it only if it was based on untenable grounds or reasons. We conclude that the record establishes a tenable basis for the trial court's decision.

First, Braut's failure to remember the details surrounding this alleged loan is not surprising given that the events occurred over 20 years ago and, in the intervening years, he suffered a beating that affected his memory. He clearly testified that he and Tarabochia met to discuss the terms of the loan and that he met with Marilyn a week later to transfer the agreed-upon sum. Second, John McPhee, an ex-FBI employee with 21 years of experience in examining disputed documents, testified after examining the photocopy that there is a "strong indication" that Tarabochia signed the document and that the signature "does not indicate a cut and paste" job. He testified that this was the highest degree of certainty he could give to a photocopy. Third, the record contains the notarized mortgage bearing the Tarabochias' signatures and referring to the "terms of an agreement bearing even date." The Wierzbickis do not explain why this mortgage would exist if the loan had not occurred. In addition, a declaration by Richard Arambaru, Inseafuture's attorney in 1979, states that he prepared the mortgage on the promissory note and had it recorded on August 16, 1979. This evidence, while not overwhelming, does establish tenable grounds for the trial court's decision to admit the photocopy. The Wierzbickis' contention that Braut failed to prove the document's execution, delivery, and terms by ...

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6 cases
  • Kappelman v. Lutz
    • United States
    • Washington Court of Appeals
    • November 6, 2007
    ..."abuse of discretion" turns on whether the judge had tenable grounds or reasons to exclude the evidence. Braut v. Tarabochia, 104 Wash.App. 728, 733, 17 P.3d 1248 (2001). ¶ 7 Here, the trial judge concluded In this case, however, I can't find that the fact that Mr. Lutz was operating withou......
  • Kurtz v. State
    • United States
    • Washington Court of Appeals
    • July 6, 2021
    ...in limine regarding the admissibility of evidence, we review the decision that it ultimately makes at trial. Braut v. Tarabochia, 104 Wn. App. 728, 730-31, 733, 17 P.3d 1248 (2001). We review admission of opinion testimony for abuse of discretion. City of Seattle v. Levesque, 12 Wn. App. 2d......
  • Columbia State Bank, Banking Corp. v. Canzoni
    • United States
    • Washington Court of Appeals
    • July 1, 2014
    ...Here, Columbia presented the note's photocopy, which qualifies as a duplicate of the original note. See Braut v. Tarabochia, 104 Wn. App. 728, 732, 17 P.3d 1248 (2001). Canzoni does not dispute the original's authenticity, but argues that it was unfair to consider the note's photocopy as ad......
  • Columbia State Bank v. Canzoni
    • United States
    • Washington Court of Appeals
    • July 1, 2014
    ... ... as a duplicate of the original note. See Braut v ... Tarabochia, 104 Wn.App. 728, 732, 17 P.3d 1248 (2001) ... Canzoni does not ... ...
  • Request a trial to view additional results
14 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
    • July 31, 2015
    ...N.E.2d 587 (Ind.App. 1992), §22.428 Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), §9.510 Braut v. Tarabochia , 17 P.3d 1248, 104 Wash.App. 728 (2001), §20.200 Is It Admissible? B-526 Bray v. Bi-State Development Corp., 949 S.W.2d 93 (Mo.App. E.D. 1997), §47.401 Bre......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
    • July 31, 2014
    ...N.E.2d 587 (Ind.App. 1992), §22.428 Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), §9.510 Braut v. Tarabochia , 17 P.3d 1248, 104 Wash.App. 728 (2001), §20.200 Bray v. Bi-State Development Corp., 949 S.W.2d 93 (Mo.App. E.D. 1997), §47.401 Breitenbach v. Stroud , 959......
  • Table of Cases
    • United States
    • August 2, 2016
    ...N.E.2d 587 (Ind.App. 1992), §22.428 Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), §9.510 Braut v. Tarabochia , 17 P.3d 1248, 104 Wash.App. 728 (2001), §20.200 Bray v. Bi-State Development Corp., 949 S.W.2d 93 (Mo.App. E.D. 1997), §47.401 Breitenbach v. Stroud , 959......
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Appellate Practice Deskbook (WSBA) Table of Cases
    • Invalid date
    ...(1981): 7.3, 7.4 Brand v. Dep't of Labor & Indus., 139 Wn.2d 659, 989 P.2d 1111 (1999): 21.15(2)(d) Braut v. Tarabochia, 104 Wn. App. 728, 17 P.3d 1248 (2001): 10.4(4) Bravo v. Dolsen Cos., 125 Wn.2d 745, 888 P.2d 147 (1995): 11.7(7)(a) Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 75 P......
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