                                                                        FILED
                                                                    Jun 18 2019, 5:41 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEES
John Johnston                                              Jeffry G. Price
Johnston & Johnston, PC                                    Peru, Indiana
Wabash, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Paul Zartman and Brenda                                    June 18, 2019
Cameron, Individually; Brenda                              Court of Appeals Case No.
Cameron as Successor Trustee of                            18A-PL-1071
the William G. Zartman, Jr.                                Appeal from the Miami Circuit
Revocable Trust; and Paul                                  Court
Zartman as Successor Co-                                   The Honorable Timothy P. Spahr,
Trustee of the Marilyn M.                                  Judge
Zartman Revocable Trust,                                   Trial Court Cause No.
Appellants-Plaintiffs,                                     52C01-1601-PL-28

        v.

William G. Zartman, III,
Individually and as Successor
Co-Trustee of the Marilyn M.
Zartman Revocable Trust; Kim
Zartman; W K Zartman Farms,
LLC; and William G. Zartman,
III and Kim R. Zartman,
Member Managers of W K
Zartman Farms, LLC,
Appellees-Defendants.



Shepard, Senior Judge.
Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019                           Page 1 of 10
[1]   The common law “best evidence rule” has been formalized through the modern

      Rules of Evidence employed by both state and federal courts. The series of

      provisions starting at Rule 1001 cover problems like the one in this case, which

      turns on the language used in a trust document not presently possessed by either

      party.


[2]   After reviewing such caselaw as exists and a number of respected treatises, we

      conclude that the trial court wrongly applied Evidence Rule 1008 in the course

      of a summary judgment proceeding. We remand with directions that the court

      reconsider that ruling.


                                Facts and Procedural History
[3]   William G. Zartman, Jr. and Marilyn M. Zartman were married and had three

      children: Brenda, Paul, and William III. William Jr. and Marilyn owned a

      farm consisting of about 303 acres straddling the Miami and Fulton County

      line. William Jr. operated the farm, and in later years William III worked the

      farm with his father.


[4]   In 1980, William Jr. and Marilyn established the William G. Zartman, Jr.

      Revocable Trust and the Marilyn M. Zartman Revocable Trust. In 1993, they

      both executed a “First Amendment” to their trusts. By 2003, each trust held

      one-quarter of the farm, and the remaining half of the farm had been transferred

      to William III. Subsequently, William Jr.’s trust also transferred its one-quarter

      interest to William III.



      Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019        Page 2 of 10
[5]   Marilyn died in August 2004, and William Jr. died in February 2010.

      Thereafter, William III, as a trustee of Marilyn’s trust, transferred to himself the

      one-quarter of the farm held by her trust.


[6]   Paul and Brenda first initiated litigation against William III in Florida after the

      death of William Jr., who was a resident of Florida when he died. The Florida

      court determined that William III had “persistent[ly] fail[ed] to administer the

      Trust effectively” and that he had committed “a serious breach of trust.”

      Appellants’ App. Vol. 4, p. 134. Due to such mismanagement of William Jr.’s

      trust, the Florida court removed William III as trustee. It also declared that it

      had no jurisdiction over Indiana real estate. For all that appears, the Florida

      litigation is ongoing.


[7]   Here in Indiana, Paul and Brenda filed suit in 2016 against William III, seeking

      among other things to set aside William III’s conveyance to himself of the one-

      quarter interest in the farm held by Marilyn’s trust and to recover lost income

      from that land. Paul and Brenda moved for summary judgment. The trial

      court denied their motion on grounds that the content of Marilyn’s trust

      documents was required to be determined by a jury. Following a trial, the jury

      returned a verdict in favor of William III.


                                                       Issue
[8]   Paul and Brenda present four issues for our review, one of which is potentially

      dispositive: whether the trial court erred in its application of Evidence Rule

      1008.

      Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019         Page 3 of 10
                                     Discussion and Decision
[9]    When reviewing a denial of summary judgment, our standard of review is

       similar to that of the trial court: whether there exists a genuine issue of material

       fact and whether the moving party is entitled to judgment as a matter of law.

       City of Indianapolis v. Cox, 20 N.E.3d 201 (Ind. Ct. App. 2014), trans. denied.

       Appellate review of a summary judgment motion is limited to those materials

       specifically designated to the trial court. Sheehan Const. Co., Inc. v. Cont’l Cas.

       Co., 938 N.E.2d 685 (Ind. 2010). All facts and reasonable inferences drawn

       from those facts are construed in favor of the non-movant. Id.


[10]   Much of the difficulty in this case has arisen because none of the parties has a

       complete copy of either Marilyn’s original trust document or the amendment to

       her trust. In seeking to set aside William III’s conveyance of that trust’s one-

       quarter interest to himself, Paul and Brenda have argued the conveyance was

       invalid because the deed conveying the property should have been executed by

       both co-trustees (William III and Brenda) but instead was executed solely by

       William III. To sustain this argument, Paul and Brenda need to establish the

       terms of Marilyn’s trust and amendment. Because the parties have only the first

       and last pages of Marilyn’s original trust document, they turned to the series of

       rules about “best evidence” to prove the content of the trust and the

       amendment.


[11]   Indiana Evidence Rule 1002 provides that an original writing is required in

       order to prove its content unless the rules of evidence or a statute provide


       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019            Page 4 of 10
       otherwise. In the absence of an original, Rule 1004 states that other evidence of

       the content of a writing is admissible if all originals are lost or destroyed, and

       the loss or destruction was not caused by the proponent acting in bad faith.

       Evidence Rule 1007 allows proof of the content of a writing by the testimony,

       deposition, or written statement of the party against whom the evidence is

       offered. Finally, Rule 1008 provides:


                  Ordinarily, the court determines whether the proponent has
                  fulfilled the factual conditions for admitting other evidence of the
                  content of a writing, recording, or photograph under Rule 1004
                  or 1005. But in a jury trial, the jury determines in accordance
                  with Rule 104(b) any issue about whether:


                           (a) an asserted writing, recording, or photograph ever
                           existed;


                           (b) another one produced at the trial or hearing is the
                           original; or


                           (c) other evidence of content accurately reflects the
                                    1
                           content.


[12]   In the present case, the parties do not contest that the prerequisites of Rule 1004

       have been met for the use of secondary evidence. So, turning to the application

       of Rule 1007 to this case, we observe that the designated evidence includes:




       1
           Indiana Rule 1008 is identical to Federal Rule 1008.


       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019             Page 5 of 10
         1) A copy of William Jr.’s First Amendment to his trust;


         2) Uncontroverted deposition testimony of William III that he saw
         the First Amendments to the trusts of both his parents and that
         the only difference was the substitution of names (Appellants’
         App. Vol. 3, p. 189);


         3) The uncontroverted affidavit of Paul stating that he saw the
         First Amendment to Marilyn’s trust shortly after it was signed in
         December 1993. At that time, his parents showed him their
         respective First Amendments and explained to him “how they
         had set up their estates and how their wills and trusts were
         supposed to work.” He read the First Amendments of the trusts
         of both his parents, and, with the exception of the substitution of
         names, gender pronouns, and the like where appropriate,
         Marilyn’s First Amendment was the same as William Jr.’s First
         Amendment (Appellants’ App. Vol. 2, pp. 143-44);


         4) The uncontroverted affidavit of Paul stating that the last time
         he saw the original of Marilyn’s First Amendment was in early
         2009 when William Jr. showed it to him. At that time, Paul read
         the document, and noted that it was the same document he had
         read in 1993 (Id. at 144-45).


This undisputed evidence offered by Paul and Brenda establishes the content of
                                                          2
Marilyn’s First Amendment to her trust.




2
  In its order denying Paul and Brenda’s motion for summary judgment, the trial court stated that “it appears
that there may be some discrepancies between the contents of the Affidavit of Paul Zartman and his
deposition testimony.” However, Paul’s deposition, though filed with the court during the proceedings, was
not designated by either party. The posture of this case is a summary judgment; accordingly, the trial court,
and this Court on appeal, may consider only the evidence specifically designated to the trial court by the parties.
See Ind. Trial Rule 56(C); Sheehan Const. Co., Inc., 938 N.E.2d 685 (appellate review of summary judgment is
limited to materials designated to trial court). Furthermore, designating evidentiary materials in their entirety

Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019                                     Page 6 of 10
[13]   However, in denying Paul and Brenda’s motion, the court interpreted Rule

       1008 as demanding that disputes about the content of a lost writing be decided

       by a jury. In its order, the court stated:


                24. Based upon what the parties have reported to the Court, it
                appears that the requirements of IRE 1004(a) and (b) are satisfied
                with respect to the documents associated with the establishment
                and/or operation of the Marilyn M. Zartman Revocable Trust.
                The Plaintiffs may seek to prove the content of such writings
                through the application of IRE 1007. However, IRE 1008(c)
                provides that the jury is to determine in accordance with IRE 104(b) any
                issue about whether evidence of the content of such writings accurately
                reflects the content.


       Appellants’ App. Vol. 6, p. 52 (emphasis added).


[14]   In a summary judgment context, it would be illogical to read Rule 1008 as

       requiring a trial judge to disregard completely the undisputed designated

       evidence as to the content of a lost writing. Rather, the more pragmatic reading

       of the rule is that it requires evidentiary disputes about the content of a lost

       writing be determined by a jury only during a jury trial. See 31 CHARLES ALAN

       WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE §

       8064 (2000) (“Where the judge is the trier of fact, the distinctions made by Rule

       1008 have little practical import.”); 6 JACK B. WEINSTEIN & MARGARET A.

       BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 1004.10 [2] (Mark S. Brodin




       fails to meet the specificity required by Trial Rule 56(C). State ex rel. Berkshire v. City of Logansport, 928 N.E.2d
       587 (Ind. Ct. App. 2010), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019                                       Page 7 of 10
       ed., 2d ed. 1997) (“In a nonjury case, the preliminary and final questions often

       merge.”). See also Fox v. Peck Iron & Metal Co., 25 B.R. 674, 680 (Bankr. S.D.

       Cal. 1982) (stating that when case is tried before court, sitting without a jury,

       court must make both preliminary and final factual determinations). Indeed,

       the rule explicitly states that the court determines whether the prerequisites of

       Rule 1004 have been met for the use of secondary evidence, “[b]ut in a jury

       trial,” the jury determines any issue about the content of the document. Evid.

       R. 1008.


[15]   A leading evidence treatise stresses that the question of whether a party has

       offered sufficient evidence to prove the contents of a lost writing is a matter for

       the trier of fact to decide. See WEINSTEIN’S FEDERAL EVIDENCE, §

       1004.02[1]. Application of the Rule turns on who is the trier of fact in the

       particular context in which the issue arises—when the issue arises in a jury trial,

       it is decided by the jury, but when the issue arises in a context other than a jury

       trial, the court decides the issue. Thus, where, as here, the content of a

       document is at issue not in the midst of a jury trial but in the context of a

       motion for summary judgment, it is for the court to decide based on the parties’

       designated evidence. The trial judge “finds” which facts are not in genuine

       dispute and which facts are, then uses the undisputed facts to rule on the

       motion for summary judgment. We note that this reading of Rule 1008 also

       comports with the dictates of Trial Rule 56.


[16]   Although few courts have written on this subject, especially in the context of a

       summary judgment proceeding, a federal court addressed this very issue in

       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019            Page 8 of 10
       Coltec Industries Inc. v. Zurich Insurance Company, No. 99 C 1087, 2002 WL

       31185789 (N.D. Ill. Sept. 30, 2002). There, Coltec moved for summary

       judgment as to the existence and material terms of lost insurance policies issued

       by Zurich. The court grappled with the question of whether the best evidence

       rule entitled Zurich to a jury trial on Coltec’s ability to prove the contents of the

       policies.


[17]   Zurich Insurance argued to the court that Federal Rule of Evidence 1008
                                                                                 3
       requires that a jury, not the court, weigh the evidence. The court discussed

       Township of Haddon v. Royal Insurance Company of America, 929 F. Supp. 774

       (D.N.J. 1996), where it was determined that because, at common law, most

       suits to enforce lost instruments were tried in courts of equity, whether a party

       had established the existence and terms of a lost insurance policy was an

       equitable issue for which there was no right to a jury trial under the Seventh

       Amendment. The court stated it was following Township of Haddon and

       concluded that neither party was entitled to a jury trial in the summary

       judgment phase. Coltec, 2002 WL 31185789, at *3. Further, noting that the

       Rule requires the trier of fact to evaluate the evidence of the contents of a




       3
         The current version of Federal Rule of Evidence 1008 (which is, as we previously remarked, identical to
       Indiana’s Rule 1008) went into effect in 2011. Coltec was decided in 2002 under a different version of the
       rule; nonetheless, the meaning and application of the rule did not change with the language. See Fed. R.
       Evid. 1008 advisory committee’s note (2011) (“The language of Rule 1008 has been amended as part of the
       restyling of the Evidence Rules to make them more easily understood and to make style and terminology
       consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change
       any result in any ruling on evidence admissibility.”)

       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019                                 Page 9 of 10
       missing document, the court confirmed that, for purposes of summary

       judgment, it was the trier of fact and would decide those issues.


[18]   Included in Coltec’s evidence offered to prove the contents of the insurance

       policies were certificates of insurance. In granting summary judgment for

       Coltec, the court determined that the certificates confirmed the terms of the

       missing policies and that Zurich offered no evidence to undermine the probative

       value of the certificates. Similarly here, Paul and Brenda presented evidence in

       the form of sworn statements of both Paul and William III that the First

       Amendment to Marilyn’s trust was identical to that of William Jr., and William

       III offers no evidence to dispute this.


                                                  Conclusion
[19]   Here, the trial court misconstrued its role in determining the contents of

       Marilyn’s trust for purposes of deciding summary judgment, and it erred by

       taking into account evidence that had not been designated (i.e., a deposition

       taken of Paul that was in the court’s file). We remand so that the trial court can

       reconsider its ruling on summary judgment in accordance with these directions

       and sustain the present judgment, or not, accordingly.


[20]   Reversed and remanded for reconsideration.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PL-1071 | June 18, 2019       Page 10 of 10
