Luebbert v. Simmons - 98 S.W.3d 72 (Mo. Ct. App. 2003)

Rule:

The best evidence rule stated is this: in proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. If the original document is required under the rule, a photocopy as secondary evidence is admissible if there is a foundation showing that: (1) the original is unavailable; (2) the unavailability is not the proponent's fault; and (3) the secondary evidence is trustworthy. The best evidence rule applies only when the terms of the writing itself are in dispute, not simply because a witness with personal knowledge testifies concerning facts also contained in a writing. When complaints concerning the best evidence rule are urged, the trial court's broad discretion is subject to reversal only in cases of clear abuse.

Facts:

Appellant debtor and respondent creditor dated each other for some time, during which the debtor borrowed money from the creditor. While having drinks one evening, the debtor sloppily wrote the creditor a promissory note. Thereafter, she gave him a more legible note. After the two stopped dating, and the creditor never received payment on the note, he brought the present action. Before any evidence was presented at the trial, the debtor’s counsel filed and argued a motion in limine, seeking to preclude admission of a photocopy of the second promissory note. After hearing both parties' arguments, the trial court took the motion with the case. When creditor attempted to introduce the photocopy of the second note into evidence, debtor’s counsel again objected. The trial court explained that it was going to allow the objection to go to the weight to be given the evidence and admitted the document. Judgment was entered in favor of the creditor. The debtor appealed, challenging the trial court’s admission of the photocopy of the second promissory note. 

Issue:

Was the photocopy of the second promissory note inadmissible as evidence for being violative of the best evidence rule? 

Answer:

No.

Conclusion:

The court affirmed the trial court’s decision, holding that the best evidence rule did not apply, as the terms of the note admitted at trial were not in dispute. Even assuming the rule did apply, the creditor laid a sufficient foundation for the admission of the photocopy. He testified that the original note was lost through no serious fault of his own and the photocopy was a true and accurate photocopy of the original. Although the debtor claimed that she was joking when she filled out the first promissory note, her insistence that she was going to pay the creditor back suggested that she intended a real agreement, and the trial court's credibility call was not against the weight of the evidence.