                   IN THE COURT OF APPEALS OF TENNESSEE,
                                AT JACKSON

             _______________________________________________________
                                                                              FILED
                                    )                                  July 13, 1999
INTEGON INDEMNITY                   )     Shelby County Chancery Court
CORPORATION,                        )     No. 108770-1 R.D.         Cecil Crowson, Jr.
                                    )                             Appellate Court Clerk
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     C.A. No. 02A01-9812-CH-00382
                                    )
SANDRA FLANAGAN and                 )
SHON FLANAGAN,                      )
                                    )
   Defendants/Appellees.            )
                                    )
______________________________________________________________________________

From the Chancery Court of Shelby County at Memphis.
Honorable Walter L. Evans, Chancellor



Michael D. Herrin,
LESS, GETZ & LIPMAN, Memphis, Tennessee
Attorney for Plaintiff/Appellant.


Jeffrey Jones, Memphis, Tennessee
Attorney for Defendants/Appellees.



OPINION FILED:

VACATED AND REMANDED


                                           FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)




              Plaintiff Integon Indemnity Corporation appeals the trial court’s judgment which
dismissed Integon’s complaint for declaratory relief and which ruled that Defendants/Appellees

Sandra and Shon Flanagan were insured persons under the uninsured motorist provisions of the

automobile liability insurance policy issued by Integon to the Flanagans. We vacate the trial court’s

judgment based upon our conclusion that the court erred in failing to conduct a trial to determine the

dispositive issue in this case.



                In July 1994, Sandra and Shon Flanagan were involved in a motor vehicle accident

on Jackson Avenue in Memphis. At the time of the accident, Shon Flanagan was operating a 1978

Honda Goldwing motorcycle and Sandra Flanagan was a passenger on the vehicle. The Flanagans

subsequently filed a lawsuit against both the owner and the operator of the automobile with which

they collided. In the Flanagans’ complaint filed in that action, Sandra Flanagan sought to recover

the sum of $250,000 for her personal injuries. Shon Flanagan sought to recover the sum of $50,000

for his loss of consortium claim and for “property damage to his vehicle.” The Flanagans caused

a copy of the complaint and a summons to be served on their uninsured motorist insurance carrier,

Integon Indemnity Corporation.



                Integon then filed this complaint for declaratory relief against the Flanagans in which

it sought a declaration that the Flanagans were not entitled to uninsured motorist coverage under the

terms of Integon’s policy. In support of its complaint, Integon cited the following policy exclusion:



                A.    We do not provide Uninsured Motorists Coverage for
                property damage or bodily injury sustained by any person:

                        (1)    While occupying, or when struck by, any motor
                        vehicle owned by you or any family member which is not
                        insured for this coverage under this policy. . . .


The policy issued by Integon insured only the Flanagans’ 1976 Ford automobile. Citing the

foregoing policy exclusion, Integon contended that the Flanagans were not entitled to uninsured

motorist coverage under the terms of the policy because Shon Flanagan owned the 1978 Honda

Goldwing motorcycle involved in the subject accident and the motorcycle was not insured for

coverage under the policy.



                During opening statements at the October 1998 trial, Integon’s counsel stated his
intention to present the following evidence of Shon Flanagan’s ownership of the motorcycle.

Integon planned to introduce the videotaped deposition of Charlotte Tackash, who would testify that

she sold the motorcycle to Shon Flanagan for the sum of $500. Tackash’s husband owned the

motorcycle, but he had executed a power of attorney which authorized Tackash to sell the

motorcycle. The subject accident occurred within one or two days after the sale of the motorcycle.

Although Shon Flanagan subsequently denied ownership of the motorcycle, the motorcycle remained

in his possession at the time of trial.



                The Flanagans raised two defenses to Integon’s complaint for declaratory relief.

Asserting that Shon Flanagan was merely test-driving the vehicle when the accident occurred, the

Flanagans first denied that Charlotte Tackash sold the motorcycle to Shon Flanagan. Alternatively,

the Flanagans challenged Charlotte Tackash’s authority to sell her husband’s motorcycle.



                Upon questioning by the trial court, Integon’s counsel stipulated that he would be

unable to produce any written documents verifying the existence of the power of attorney executed

by Tackash’s husband. He explained that Tackash’s deposition testimony would indicate that she

could not locate the written power of attorney and that she had not seen it since the Tackashes

moved. Integon’s counsel also stipulated that, at the time of the accident, title to the motorcycle

remained in the name of Tackash’s husband.



                Although Integon’s counsel stipulated to the foregoing facts during opening

statements, he objected to the trial court deciding the case based upon the stipulations alone, and he

asserted his right to present evidence:



                        MR. FRICK [INTEGON’S COUNSEL]: Is the Court telling
                me I can’t show that [a videotape of Charlotte Tackash’s deposition],
                put that into evidence? The problem that I’m concerned about is that
                I have evidence that I’m not being allowed to put in.

                       THE COURT:         Well, what evidence are you not being
                allowed to put in?

                       MR. FRICK: [Charlotte Tackash’s] videotaped deposition
                testimony.

                        THE COURT: But you’ve summarized the strong points of
                her testimony. Is there anything which you have not stated that her
               video would disclose that you wish to advise the Court?

                       MR. FRICK: If Your Honor please, it’s a 70-page deposition
               and I can’t -- with all due respect to the Court, it’s unfair to ask me to
               stipulate to all of the things that might be pertinent in that deposition.



               Despite this objection, the trial court proceeded to rule upon the merits of the case

based upon counsels’ opening statements. In dismissing Integon’s complaint, the trial court ruled

that, inasmuch as Integon could not produce any writing establishing the contents of the power of

attorney executed by Charlotte Tackash’s husband, Integon was unable to meet its burden of proving

that Charlotte Tackash had the authority to sell the motorcycle to Shon Flanagan. Accordingly, the

trial court ruled that the Flanagans were insured persons under the terms of Integon’s policy and that

they were entitled to uninsured motorist coverage.



               We conclude that the trial court erred in determining the coverage issue in this case

without conducting a trial. Our supreme court has held that “the trial judges of this State are not

authorized to order the involuntary dismissal of an action at trial upon the sole basis of the opening

statements of counsel.” Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn. 1978). The

court gave the following explanation for this holding:



               Such a practice was not recognized in this State prior to the adoption
               of the Tennessee Rules of Civil Procedure and we find nothing in
               those rules to countenance such a practice now. The applicable rule
               is Rule 41.02(2), governing involuntary dismissals at trial, which
               provides:

                       “After the plaintiff, in an action tried by the court
                       without a jury, has completed the presentation of his
                       evidence, the defendant, without waiving his right to
                       offer evidence in the event the motion is not granted,
                       may move for dismissal on the ground that upon the
                       facts and the law the plaintiff has shown no right to
                       relief. The court as trier of the facts may then
                       determine them and render judgment against the
                       plaintiff or may decline to render any judgment until
                       the close of all the evidence; in the event judgment is
                       rendered at the close of plaintiff’s evidence, the court
                       shall make findings of fact if requested in writing
                       within three days after the announcement of the
                       court’s decision.”

               Clearly, this rule contemplates that the plaintiff’s evidence shall be
               heard and evaluated by the court prior to an involuntary dismissal
               order at trial. We note also that Rule 50.01 governing the granting of
               a directed verdict in a jury trial also limits the power of the court to
               do so to that point in the trial “ . . . at the close of the evidence offered
               by an opposing party or at the close of the case.”

                        Of critical importance here is the nature of opening
               statements. They are intended merely to inform the trial judge and
               jury, in a general way, of the nature of the case and to outline,
               generally, the facts each party intends to prove. Such statements do
               not amount to stipulations and certainly are not a substitute for the
               pleadings or for evidence. See 75 Am. Jur. 2d Trials § 202 (1974).
               It is easy to see that an involuntary dismissal upon the basis of the
               opening statements of counsel alone may effectively deny the
               litigants the opportunity to be heard or to fully present the facts and
               evidence in the case. For this reason, we are unwilling to expand the
               provisions of Rule 41.02 to authorize trial judges to order involuntary
               dismissals upon opening statements alone.



Harris, 574 S.W.2d at 731-32; accord J.C. Bradford & Co. v. Southern Realty Partners, No.

02A01-9801-CH-00006, 1998 WL 855465, at *3 (Tenn. App. Dec. 10, 1998).



               In urging this court to affirm the trial court’s judgment, the Flanagans contend that

the trial court properly ruled on the dispositive issue in this case based upon the stipulations made

by Integon’s counsel during opening statements. This court rejected a similar argument in the recent

decision of J.C. Bradford & Co. v. Southern Realty Partners, No. 02A01-9801-CH-00006, 1998

WL 855465 (Tenn. App. Dec. 10, 1998). There, as in the present case, the appellant agreed to

certain stipulations during opening statements, but the appellant also asserted its right to present

deposition testimony and documentary evidence. J.C. Bradford, 1998 WL 855465, at *4. In

vacating the trial court’s judgment, we explained that the J.C. Bradford case illustrated



               that the Rules of Civil Procedure should be followed and cases tried
               in the usual and proper manner. As our Supreme Court said in
               Harris, the opening statements should be confined to outlining in a
               general way the nature of the case and the facts each party intends to
               prove. The case should then proceed as an evidentiary hearing in
               order for the trial court to make determinations including, of course,
               the credibility of witnesses. While oral stipulations are binding upon
               the parties and may be the basis of a ruling by the court, Department
               of Highways v. Urban Estates, Inc., 225 Tenn. 193, 465 S.W.2d 357,
               360 ([Tenn.] 1971), there must be a clear understanding of what the
               stipulations are.



J.C. Bradford, 1998 WL 855465, at *3.



               The Flanagans further insist that the trial court’s judgment should be affirmed
because, regardless of what evidence Integon might have introduced at trial, Integon’s counsel

conceded that he would be unable to produce the written power of attorney evidencing Charlotte

Tackash’s authority to sell the motorcycle. In dismissing Integon’s complaint for declaratory relief,

the trial court ruled that Integon’s failure to produce the written power of attorney was fatal to

Integon’s claim that Charlotte Tackash had the authority to sell the motorcycle to Shon Flanagan.



               The trial court apparently based its ruling upon the best evidence rule. The best

evidence rule generally requires a party to introduce an original writing or a duplicate if the party

seeks to prove the contents of the writing. See T.R.E. 1002, 1003. As set forth in the Tennessee

Rules of Evidence, however, the best evidence rule is a rule of preference rather than exclusion.

State ex rel. Glover v. Osteen, No. 01A01-9304-CV-00244, 1995 WL 546958, at *3 (Tenn. App.

Sept. 15, 1995). The rule “does not exclude evidence but rather requires the introduction of the best

available form of the evidence.” Id. The underlying theory of the rule is that “only the best or most

accurate proof of written or similar evidence should be admitted, to the exclusion of inferior sources

of the same proof, absent some extraordinary justification for the introduction of secondary

evidence.” Neil P. Cohen et al., Tennessee Law of Evidence § 1001.0, at 496 (2d ed. 1990).



               In keeping with this theory, the Tennessee Rules of Evidence set forth four exceptions

to the best evidence rule. Rule 1004 provides that the proponent of a written document need not

introduce the original of the document in four circumstances:



                       (1)    Originals Lost or Destroyed. -- All originals are lost
               or destroyed, unless the proponent lost or destroyed them in bad faith;
               or

                      (2)    Original Not Obtainable. -- No original can be
               obtained by any available judicial process or procedure; or

                       (3)    Original in Possession of Opponent. -- At a time when
               an original was under the control of the party against whom offered,
               that party was put on notice by the pleadings or otherwise that the
               contents would be a subject of proof at the hearing but does not
               produce the original at the hearing; or

                       (4)     Collateral Matters. -- The writing . . . is not closely
               related to a controlling issue.



T.R.E. 1004. If one of these exceptions applies, then the proponent of the document may offer oral
testimony to prove the contents of the writing. See State ex rel. Glover v. Osteen, 1995 WL 546958,

at *2; see also Petty v. Estate of Nichols, 569 S.W.2d 840, 847 (Tenn. App. 1977) (indicating that

party may use oral testimony to prove contents of lost or destroyed document).



                We conclude that the trial court erred in deciding this case based upon Integon’s

failure to produce the written power of attorney. According to the opening statements of Integon’s

counsel, Charlotte Tackash’s testimony would have revealed that an exception to the best evidence

rule applied because the original power of attorney was lost. Integon’s counsel made the following

representations to the trial court:



                        I believe her [Charlotte Tackash’s] testimony is -- you might
                have a better recollection of this, but they had, I believe, moved from
                the Memphis/Millington area up to Pennsylvania. This was after this
                transfer had taken place, and I believe she indicated that she had seen
                it some time in the course of that move, but since that move had not
                seen it. I may be incorrectly phrasing her testimony.

                        ....

                        . . . I have -- the deposition’s here, but my recollection is Mrs.
                Tackash in her subpoena was asked to bring documents relative to the
                sale, and I believe her testimony is that the Power of Attorney could
                not be located.



                If introduced into evidence, the foregoing testimony would have demonstrated that

Charlotte Tackash lost the original power of attorney and that such loss did not result from any bad

faith on the part of Tackash or Integon. Accordingly, the proffered testimony would have been

competent to establish that Tackash’s husband executed a power of attorney authorizing Tackash to

sell the motorcycle. See State ex rel. Glover v. Osteen, 1995 WL 546958, at *3.



                In any event, we are not convinced that the written power of attorney was critical to

Integon’s complaint for declaratory relief because the record contains other proffered evidence which

supported Integon’s claim that Charlotte Tackash had the authority to sell the motorcycle to Shon

Flanagan. During her videotaped deposition, Tackash testified that her husband executed a general

power of attorney before traveling overseas on an assignment with the United States Navy. Tackash

also testified, however, that she and her husband had a conversation before his departure during

which her husband specifically instructed her to sell the 1978 Honda Goldwing motorcycle in his
absence if she needed the money.



               Shon Flanagan’s testimony tended to support Integon’s claim that Charlotte Tackash

had the authority to sell the motorcycle. In his deposition taken almost three years after the accident,

Shon Flanagan admitted that the motorcycle remained in his possession and that the Tackashes had

not sought its return. Flanagan further admitted filing a lawsuit against the owner and the driver of

the other automobile involved in the accident in which he sought compensation for property damage

to “his vehicle,” i.e. the motorcycle.



                In our view, the present case illustrates why trial courts generally should not decide

cases based upon the parties’ opening statements. If this case had proceeded to an evidentiary

hearing, the trial court then could have made the necessary rulings on the application of the best

evidence rule, possible exceptions to the rule, and any other evidentiary issues that might have arisen

during the trial. The trial court likewise could have determined the credibility of the central

witnesses in this case, including Charlotte Tackash and Shon Flanagan. We believe that the trial

court prematurely decided this case without allowing the parties to develop a record upon which the

court properly could have determined these issues.



                The trial court’s judgment is vacated, and this cause is remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to the Flanagans, for which

execution may issue if necessary.




                                                        ____________________________________
                                                        FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
HIGHERS, J. (Concurs)
