Equitable Life Assur. Soc. of U.S. v. Starr

• Citation: 241 Neb. 609,489 N.W.2d 857
• Decision Date: 02 October 1992
• Docket Number: No. S-89-1249,S-89-1249
• Court: Supreme Court of Nebraska
• Parties: EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Frances D. STARR, formerly known as Frances D. Ehlers, Appellee.

Page 857

489 N.W.2d 857

241 Neb. 609

EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Frances D. STARR, formerly known as Frances D. Ehlers, Appellee.

No. S-89-1249.

Supreme Court of Nebraska.

Oct. 2, 1992.

Syllabus by the Court

1. Rules of Evidence: Negotiable Instruments. A bank photocopy of a processed check qualifies as a "duplicate" under Neb.Evid.R. 1001(4), Neb.Rev.Stat. § 27-1001(4) (Reissue 1989).

2. Rules of Evidence. A duplicate writing, defined in Neb.Evid.R. 1001(4), Neb.Rev.Stat. § 27-1001(4) (Reissue 1989), is admissible under Neb.Evid.R. 1003, Neb.Rev.Stat. § 27-1003 (Reissue 1989), to the same extent as an original writing without a showing that the original is lost or destroyed or is otherwise unavailable under the circumstances expressed in Neb.Evid.R. 1004, Neb.Rev.Stat. § 27-1004 (Reissue 1989), regarding a lost or destroyed original writing.

3. Rules of Evidence: Proof. When a duplicate writing or document is offered as evidence, the burden of raising an issue concerning the authenticity of the original writing or document, or showing circumstances of unfairness to prevent admissibility of a duplicate, is on the party opposing the duplicate's admission into evidence.

4. Rules of Evidence: Proof. A litigant must make more than a mere allegation regarding a lack of authenticity for an original writing or document; instead, the party opposing admission must show specific facts or circumstances that raise a reasonable question regarding authenticity of the original.

5. Rules of Evidence. Under Neb.Evid.R. 1003(2), Neb.Rev.Stat. § 27-1003(2) (Reissue 1989), unfairness must involve some infirmity with the duplicate itself; for example, an incomplete copy that fails to reproduce some vital part of the original document.

6. Rules of Evidence: Trial: Appeal and Error. As a result of Neb.Evid.R. 103(1), Neb.Rev.Stat. § 27-103(1) (Reissue 1989), reversible error may be predicated on an erroneous exclusion of evidence that affects a party's substantial right.

7. Rules of Evidence: Trial: Appeal and Error. In a civil case, to constitute reversible error contemplated in Neb.Evid.R. 103(1), Neb.Rev.Stat. § 27-103(1) (Reissue 1989), admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded.

Daniel E. Klaus, of Rembolt Ludtke Parker & Berger, Lincoln, for appellant.

James D. Smith, of Brock, Seiler & Smith, Hastings, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In a contract action brought by Equitable Life Assurance Society of the United States (Equitable) against Frances D. Starr, formerly known as Frances D. Ehlers, as comaker of a promissory note, Starr denied signing the note, and a jury found in her favor. In its appeal, Equitable contends that the trial court misapplied the "best evidence" rule.

FACTUAL BACKGROUND

On May 5, 1980, newlyweds Pamella and James Ehlers obtained a $147,000 loan from Equitable to consolidate some farm debt and finance construction of a home. As a condition for this loan, Equitable required that James' parents, Alvin and Frances Ehlers, as comakers, also sign the promissory note with Pamella and James. Part of the loan proceeds distributed to Pamella and James was represented by Equitable's check for $112,440. Five payees were designated on the check: "James A. Ehlers, Pamella J. Ehlers, Alvin R. Ehlers, Frances D. Ehlers," and also "Donald L. Robson Insurance and Realty Inc. York, Ne." Robson was Equitable's closing agent for the loan.

In 1988, Alvin Ehlers died. Frances, his widow, remarried and has taken the name "Starr." Pamella and James were unable to repay their loan from Equitable and obtained debtor protection under chapter 12 of the U.S. Bankruptcy Code. As a consequence of Pamella and James' bankruptcy and default on the promissory note, Equitable sought payment from Starr, who refused to pay the debt, even though the note ostensibly bore her signature. Equitable responded by suing Starr on the note.

THE TRIAL

At trial, James and Pamella testified that neither Alvin nor Frances Ehlers, James' parents, was at the loan closing, despite the fact that the promissory note bore the Ehlers' In an effort to prove genuineness for the purported signature of Frances Ehlers on the promissory note, Equitable offered testimony from Harold W. Moon, an expert "questioned documents examiner," who had examined and tested thousands of documents for evidence of alteration and forgery. Under various testing procedures, Moon examined Frances Ehlers' disputed signature and compared it to known examples of her genuine signature. Based on his examination and comparison with Starr's valid signatures, Moon testified that the purported signature had definitely not been forged by any tracing techniques and that there was a "high degree of probability" that the questioned signature on the promissory note was the genuine signature of Frances Ehlers. However, Moon further testified that he could not say with certainty that the signature on the promissory note was that of Starr, because the signature on the note indicated some dissimilarities when compared with Starr's handwriting. Moon testified that the only way that the signature on the note could be a forgery was simulation by someone who had had "a great deal of practice" signing the name "Frances D. Ehlers," Starr's former name.

signatures. In contrast, Robson, Equitable's agent who closed the loan transaction, testified that James, Pamella, and Alvin were present at closing, but admitted that Frances was absent. Robson further testified that Alvin Ehlers signed the note in Robson's presence, and Alvin then took the note away to another location so that Frances could sign. Robson also testified that when Alvin returned, the note bore Frances Ehlers' signature. The original promissory note to Equitable was introduced into evidence. However, Equitable could not locate the original canceled check for distribution of the loan proceeds, but instead presented a photostatic copy showing the face of the original check without displaying the obverse side of the check and any endorsements.

During the testimony of James Ehlers, Starr introduced James' original deposit slip, dated May 5, 1980, which was the same day as the closing, showing the deposit of a $112,440 check from Equitable. This came as a surprise to Equitable, because Equitable's policy dictated that loan proceeds checks were given only to Equitable's closing agent, who, after endorsement of the check, would then typically distribute the proceeds to the borrowers. On cross-examination, James gave Equitable permission to obtain his bank's records concerning the deposit.

During a recess, Equitable's lawyer went to the bank and obtained a copy of the loan proceeds check from the bank's microfilmed records for James Ehlers. This photostatic copy showed both sides of Equitable's processed check which had been deposited in James' account. The check's reverse side disclosed the purported signatures of all five payees in the following order:

James A. Ehlers

Pamella J. Ehlers

Alvin R. Ehlers

Frances D. Ehlers

Donald S Robson

Ins & Realty, Inc

by Donald S Robson

Neither Starr nor Equitable asked the court to grant a recess to consider the impact of this recently discovered evidence.

Starr testified in her own defense, stating that she had never seen or signed the promissory note or proceeds check and that Alvin Ehlers, her late husband, had told Equitable's agents before closing that she would not sign the note. She also testified that her late husband, Alvin, had instructed her "under no circumstances, don't ever sign that note" and that she "just obeyed what he told me to do."

During cross-examination of Starr, Equitable sought to introduce the bank photocopy of the loan proceeds check. Court and counsel conferred in chambers and discussed the photocopied check's admissibility. Equitable's lawyer contended that the photocopy of the check was admissible under Neb.Evid.R. 1001(4), 1002, and 1003 (Neb.Rev.Stat. §§ 27-1001(4), 27-1002, and 27-1003 (Reissue 1989)).

The definition of "duplicate" is expressed in Rule 1001(4): "A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original."

Rule 1002 provides:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or of the Legislature of the State of Nebraska or by other rules adopted by the Supreme Court of Nebraska.

Rule 1003 states: "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

Referring to these evidence rules, Starr's lawyer claimed that the photocopy was unfairly surprising, since the copy was not exchanged in accordance with the pretrial order which directed the parties to exchange exhibits, but did not identify exhibits to be exchanged. Starr's lawyer also stated that he was "definitely going to raise a question as to the authenticity of the original," but specified no grounds for such challenge and further argued that it would be impossible to test the photocopied check's signature for indicia of forgery; therefore, reception of the photocopy as evidence would be "just totally unfair."

During this conference, the court stated that admissibility of the photocopied check required consideration of, and determination by, Neb.Evid.R. 1004, Neb.Rev.Stat. § 27-1004 (Re...