R & D Amusement Corp. v. Christianson, 11145

Citation392 N.W.2d 385
Decision Date30 July 1986
Docket NumberNo. 11145,11145
PartiesR & D AMUSEMENT CORPORATION, Plaintiff and Appellee, v. Jim CHRISTIANSON and Loren J. Anderson, d.b.a. Gem Investment Group, Defendants and Appellants. Civ.
CourtUnited States State Supreme Court of North Dakota

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff and appellee; argued by Steven L. Latham.

Lundberg, Nodland, Lucas & Schulz, Bismarck, for defendants and appellants; argued by Ardell Tharaldson.

LEVINE, Justice.

Jim Christianson and Loren J. Anderson, d.b.a. Gem Investment Group (Gem) appeal from a judgment awarding R & D Amusement Corporation (R & D) $7,114.97 and dismissing Gem's counterclaim. We reverse in part and affirm in part.

In 1966 R & D leased a theater housed in a building owned by Rose Patterson. In 1976, R & D installed air conditioning in the theater, allegedly pursuant to a cost sharing agreement with the Rose Patterson Estate (Rose Patterson died in 1975). Soon afterwards the building housing the theater was purchased by Midstate Investment Corporation, which in 1980 sold the building to A & G Company.

In 1980 the city of Bismarck condemned the building. R & D stopped operating the theater, but with A & G's consent stored equipment there. In the fall of 1982, following A & G's sale of the building to Gem R & D removed not only the equipment it had stored in the theater, but also some heating units it had installed in 1979.

In 1983 R & D sued Gem to recover a portion of the cost of the air conditioning, alleging that its 1976 agreement with the Rose Patterson Estate was binding upon Gem. Gem denied liability and counterclaimed alleging that R & D wrongfully removed the heating units when it vacated the theater. Following a bench trial, the court held Gem to be liable to R & D for a portion of the air conditioning costs and dismissed Gem's counterclaim with prejudice. Gem appealed.

R & D's action against Gem is based upon a memorandum agreement by which the Rose Patterson Estate purportedly agreed to reimburse R & D for a proportionate share of R & D's costs in installing air conditioning in the theater. The trial court admitted the memorandum agreement into evidence. This, Gem maintains was reversible error because the document was not adequately authenticated. We agree.

Generally, before documentary evidence is admissible it must be authenticated. All that authentication requires is that the party offering the evidence show that the document is what he claims it to be; here a binding agreement between the Rose Patterson Estate and R & D. North Dakota Rule of Evidence 901(a); see generally 11 Moore's Fed.Prac. Sec. 901.02; 5 Weinstein's Evidence, p 901(a).

The purpose of authentication is to establish the document's relevancy. If a statement allegedly made by X is relevant to a case, and a letter containing that statement is offered, the letter is irrelevant unless it can be authenticated by showing X was its author. See 11 Moore's Fed.Prac. Sec. 901.02. Thus, authentication is simply a process of establishing the relevancy of a document by connecting it with a person, place or thing. Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129 (N.D.1980). In the absence of a showing of authenticity, documentary evidence is simply irrelevant and therefore inadmissible. NDREv 402.

NDREv 901(a) treats questions of authentication as matters of conditional relevance to be determined according to NDREv 104(b). Explanatory Note to NDREv 901, N.D.Court Rules 1986 Desk Copy. The relevancy of a document is conditioned upon its authenticity. Thus, when a document is offered, a judge must make a preliminary determination whether sufficient proof has been introduced to allow a reasonable fact finder to conclude the document is authentic; i.e., it is what its proponent claims it to be. If so, the judge must admit the evidence and the question of its weight and prosecutive force is one for the jury. NDREv 104(b); State v. Vetsch, 368 N.W.2d 547 (N.D.1985); see generally 11 Moore's Fed.Prac. Sec. 901.03; 5 Weinstein's Evidence p 901(a).

The question whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court. See State v. Schneider, 389 N.W.2d 604 (N.D.1986). An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Lange v. Cusey, 379 N.W.2d 775 (N.D.1985).

Consequently, to constitute reversible error, the trial court must have abused its discretion, by acting unreasonably, in concluding that the memorandum agreement was adequately authenticated.

The memorandum agreement, by which R & D alleges that the Rose Patterson Estate, and thus Gem as successor in interest, agreed to proportionately reimburse R & D for installing the air conditioning, contains but one signature:

"ESTATE OF ROSE PATTERSON

"By S/ ROBERT H. THIEREN

"Manager of Properties"

Gem argues that the memorandum agreement was not authenticated because there was not sufficient evidence that the signature on it was Thieren's. The entire testimony concerning the memorandum agreement was that of an employee of R & D who simply testified that the original agreement was in R & D's corporate records. R & D offered no additional evidence that the signature was in fact that of Thieren; e.g., Thieren's testimony that the signature was his; testimony by another who saw Thieren sign the memorandum agreement, e.g., Farmers Union Oil Co. of Dickinson v. Wood, supra; or expert or lay testimony that the signature was Thieren's, NDREv 901(b)(2) and (3). Nor did R & D attempt to otherwise authenticate the agreement, e.g., testimony that the agreement was in fact what R & D claims it to be. See Farmers Union Oil Co. of Dickinson v. Wood, supra, (NDREv 901(b) places no limitations upon the number of methods of authentication).

The only evidence to authenticate the memorandum agreement in any fashion was circumstantial. R & D installed the air conditioning at a time and cost consistent with the terms of the memorandum agreement. Based upon the evidence, the only argument we can conjure up to support the trial court's decision to admit the document rests on speculation and inferences drawn from that speculation, to-wit: R & D would not have installed the air conditioning if the memorandum agreement were not binding; the memorandum agreement was binding only if signed by Thieren; therefore, because R & D installed the air conditioning, it must be Thieren's signature on the memorandum agreement. This argument is hopelessly circular.

There must be evidence of foundation sufficient to allow a reasonable fact finder to conclude that it was Thieren's signature on the memorandum agreement. If no such foundation is established the document is inadmissible. See Osborn v. Empire Life Ins. Co. of America, 342 So.2d 763 (Ala.1977); DePearl Corp. v. Com., 65 Pa.Cmwlth. 140, 442 A.2d 1 (1982). Here R & D failed to meet the threshold. Consequently, we hold that the trial court abused its discretion by concluding that the memorandum agreement was adequately authenticated and thus admissible.

In a bench case introduction of inadmissible evidence is reversible error only when it affirmatively appears that the incompetent evidence induced the trial court to make an essential finding which would not otherwise have been made. Fuhrman v. Fuhrman, 254 N.W.2d 97 (N.D.1977). Here, it is obvious that had the memorandum agreement not been admitted into evidence, the trial court could not have found it to be binding upon Gem. Consequently, the trial court committed reversible error in admitting the memorandum agreement and we accordingly reverse that part of the judgment awarding R & D $7,114.97.

However, we do affirm the trial court's dismissal of Gem's counterclaim. Gem argues that the trial court erred in dismissing its counterclaim which sought compensation for R & D's removal of heating appliances from the theater.

In 1979 R & D installed in the theater at its own expense several ceiling-hanging space heaters, baseboard heaters, a heating coil in the existing duct work, and thermostats. When R & D vacated...

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    ...a person, place, or thing. Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129, 136 (N.D.1980). In R & D Amusement Corporation v. Christianson, 392 N.W.2d 385, 386 (N.D.1986), we "NDREv 901(a) treats questions of authentication as matters of conditional relevance to be determined acc......
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