IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 20, 2011 Session

BELLSOUTH ADVERTISING & PUBLISHING CORP. 

v. SENTAYEHU ABEBE, ET AL.

Appeal from the Circuit Court for Davidson County

No. 09C948 Joseph P. Binkley, Jr., Judge

No. M2010-01020-COA-R3-CV - Filed April 28, 2011

This appeal arises out of a suit to recover the balance on a past due account for an

advertisement in a telephone directory. Defendant disputed the authenticity and admissibility

of the documents submitted by plaintiff to establish an enforceable and valid contract. The

trial court permitted the documents to be admitted and entered judgment for plaintiff.

Defendant appeals, contending that the trial court erred in admitting the documents and in

finding an enforceable contract. Finding no error, we affirm.

Tenn. Rule App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS,J., delivered the opinion of the court, in which PATRICIA J. COTTRELL,

P. J., M. S., and ANDY D. BENNETT, J., joined.

Gary Dean Copas, Nashville, Tennessee, for the appellant, Sentayehue Abebe.

Phillip Douglas Patterson, Nashville, Tennessee, for the appellee, BellSouth Advertising &

Publishing Corp.

OPINION

I. BACKGROUND

On November 21, 2008, BellSouth Advertising & Publishing Corp. (“plaintiff”) filed

a complaint to recover the balance of an account allegedly owed by Sentayehu Abebe

(“defendant”) d/b/a Ultimate American Concrete for advertisement which ran in the 2007-

2008 Nashville Yellow Pages. Defendant filed a counter-claim for breach of contract and

sought recision. The case was tried in Davidson County General Sessions Court on March
9, 2009, which found for the Plaintiff and entered judgment of $5,000; defendant’s counterclaim was dismissed.

Defendant appealed the decision to Davidson County Circuit Court, and the matter

was set for trial on August 18, 2009. On August 14, defendant filed a motion seeking a

continuance of the trial, asserting that plaintiff had not produced the original “directory

advertising order (i.e., the printing proof)” upon which plaintiff’s claim was based despite

numerous discovery requests, and that defendant disputed the authenticity of the copy

provided by plaintiff. Plaintiff did not oppose the continuance and, by agreed order, the trial

was rescheduled for December 14, 2009. On November 20, defendant sought a second

continuance and an order compelling plaintiff to respond to defendant’s Tenn. R. Civ. P. 34

document request. The record does not contain an order granting the continuance or

disposing of the motion to compel; trial took place on March 22, 2010.

On March 19, 2010, defendant filed a document styled “Defendant’s Affirmative

Defenses To Plaintiff’s Pleading” asserting fraud, spoliation, illegality, and material breach

of contract as affirmative defenses. He also filed the deposition of Leo Moceri, credit

manager for the Middle and East Tennessee area of AT&T, who had been designated by

plaintiff as its representative in accordance with Tenn. R. Civ. P. 30.02(6). Attached as an

exhibit to the deposition was plaintiff’s response to defendant’s discovery requests, certified

as being served on defendant on December 2, 2009, which stated that plaintiff “is not in

possession of the original Advertising Order or other documents which form the basis of this

lawsuit.” The response included the affidavit of Mr. Moceri, sworn to on August 26, 2009,

to which certain documents were attached. Mr. Moceri attested that the originals of the

documents had either been lost or destroyed and could not be found and that the copies sent

in response to defendant’s requests for production were “true and accurate copies of the

originals to the best of my knowledge information and belief.” On March 22, 2010,

defendant filed a motion in limine seeking to have the court deny admission into evidence

a copy of a May 22, 2007 Directory Advertising Printing Order; defendant contested the

authenticity of the document. The motion in limine was denied.

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Mr. Moceri and defendant were the only witnesses at trial. Through the testimony of

Mr. Moceri, plaintiff introduced copies of a May 15, 2007 Advertising Order Signature

Sheet; a May 22, 2007 Directory Advertising Printing Order; a statement titled “General

Terms and Conditions” applicable to the account; and a May 22, 2007 Advertising Order

 The order denying the motion in limine was not filed until July 20, 2010. 

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Signature Sheet. Defendant testified that he did not sign the May 22 signature sheet and

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that, while he did sign a printing order on May 22, the order he signed was different than the

one entered into evidence by plaintiff. The court admitted into evidence the copies of the

signature sheet, order, and proof offered by plaintiff and entered judgment for plaintiff in the

amount of $14,501.68, representing the balance on the account, prejudgment interest, and

attorney’s fees, less $380 defendant paid as a deposit.

Defendant appeals, asserting that the trial court erred (1) in admitting into evidence

the copies of the instruments upon which the plaintiff’s claim was asserted and (2) in finding

an enforceable instrument in support of the plaintiff’s claim.

II. DISCUSSION

A. Admissibility of document copies

Defendant’s first issue relates to the court’s admission of copies of documents dated

May 15 and May 22, 2007; the original documents were not available. While Tenn. R. Evid.

1002 generally requires the original of a writing, recording, or photograph to prove its

content, Tenn. R. Evid. 1003 allows a duplicate to be admissible “to the same extent as an

original unless a genuine question is raised as to the authenticity of the original.” Defendant

contends that, because Mr. Moceri “could not attest at trial under oath that the duplicate was

a copy of the original” and because “the signature on the copy is illegible,” the documents

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were not properly authenticated. Further, he argues that the copies should not have been

admitted because there were “genuine issues of authenticity, fraud and lack of

trustworthiness” relative to the documents tendered by plaintiff.

“The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to the court to support a finding by the trier

of fact that the matter in question is what its proponent claims.” Tenn. R. Evid. 901.

Identification or authentication can occur in a number of ways, such as through a “witness

with knowledge” or evidence of a process or system. Tenn. R. Evid. 901(1), (9).

The signature sheet is a document on which the customer’s order is set out and includes that

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products and features to be incorporated into the advertisement and the monthly cost thereof; the printing

order contains the actual proof of the advertisement. 

It appears from the testimony cited in his brief that the “copy” defendant is referring to is the May

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22 signature sheet. 

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Mr. Moceri testified that, in 2007, plaintiff’s document retention system included

maintaining original account documents, including those of the sort at issue in this case, at

its Birmingham, Alabama, office and scanning the documents into its document retention

system; the originals were maintained for two to three years. If a matter went to litigation,

the documents were transmitted electronically to the home office in Atlanta, Georgia, and,

as necessary, to the office of the attorney handling the matter; the records are also available

Mr. Moceri’s office in Brentwood, Tennessee. The documents which were produced in

discovery and at trial had been archived in plaintiff’s record retention system. Mr. Moceri

also testified that the records specific to this case were made by plaintiff’s employees in the

ordinary course of business and that it was plaintiff’s regular practice to make and maintain

such records for each of their customers’ accounts.

Mr. Moceri’s testimony demonstrated that he was familiar with the record retention

system employed by plaintiff, and his testimony was sufficient for a court to conclude that

he was a “person with knowledge” of the copies. Further, his testimony as to plaintiff’s

record retention system was evidence of a process or system whereby the copies introduced

by plaintiff were maintained in a reliable manner. Such testimony was sufficient to

authenticate the copies introduced by plaintiff.

The admissibility of evidence is within the sound discretion of the trial court. Otis v.

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). Trial courts are generally

accorded a wide degree of latitude in determining whether to admit or exclude evidence, and

their decision will be overturned on appeal only where there is an abuse of discretion. Id.

There was no evidence of fraud relative to the documents at issue and the trial court was free

to resolve any concerns it had as to the trustworthiness of the documents by giving the

documents appropriate weight. Upon our review of the record, the trial court did not abuse

its discretion in admitting the documents.

B. Finding of an enforceable contract

Defendant also asserts that the trial court erred in finding an enforceable instrument

in support of plaintiff’s claim. He contends that the “order contract” of May 22, 2007 was

unenforceable because of fraud, spoliation of evidence, unlawful activity under 47 U.S.C.

§ 201(b) and material breach of contract.

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These grounds coincide with the statement of defendant’s affirmative defenses filed on March 19. 4

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1. Fraud

The manner in which defendant claimsthat “fraud” rendersthe contract unenforceable

is not clear from his brief on appeal; however, in his statement of affirmative defenses he

states that “[t]he copy presented is the copy of a document which has been intentionally and

fraudulently alterated [sic] from the original signed by the Defendant.” In his brief he

contends that defendant’s denial that he saw or signed the May 22, 2007 advertising order

is “sufficient evidence to support a finding of fraud in the avoidance of the contract.” This

contention is without merit.

Having raised these matters as affirmative defenses, defendant bore the burden of

proof to establish them. See Ottenheimer Publishers, Inc. v. Regal Publishers, Inc., 626

S.W.2d 276, 279 (Tenn. Ct. App. 1981). Apart from defendant’s denial of the May 22

document, he cites no evidence to support a determination that there was fraud of any sort

in relation to the document. As noted above, Mr. Moceri testified at length regarding the

document handling and retention process utilized by plaintiff and how the documents which

were introduced at trial were compiled and obtained; there was nothing in his testimony or

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in the testimony of defendant to infer fraud.

2. Spoliation of Evidence

Defendant contends that, under the authority of Cincinnati Ins. Co. v. Mid-S. Drillers

Supply, Inc., M2007-00024-COA-R3-CV, 2008 WL 220287 (Tenn. Ct. App. Jan. 25, 2008),

plaintiff’s claim should be dismissed as a sanction for plaintiff’s alleged spoliation of

evidence. He contends that he is prejudiced by the absence of the original documentation

and that “this is a case in which the destruction of the actual papers along with an illegible

signature copy would forever prevent the Defendant from asserting a defense of fraud.”

“The doctrine of spoliation of evidence permits a court to draw a negative inference

against a party that has intentionally, and for an improper purpose, destroyed, mutilated, lost,

altered, or concealed evidence.” Bronson v. Umphries, 138 S.W.3d 844, 854 (Tenn. Ct. App.

2003). “This inference is rebuttable and arises only when the spoliation occurs in

circumstances indicating fraud and a desire to suppress the truth. It does not arise when the

destruction was a matter of routine with no fraudulent intent.” McLean v. Bourget’s Bike

Works, Inc., 2005 WL 2493479, * 4 (Tenn. Ct. App. Oct. 7, 2005).

Mr. Moceri testified that the May 15 order was taken prior to a credit check which revealed that

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the defendant did not have the “credit availability” required for the order. The order was revised to meet

plaintiff’s “basic credit line,” which was capped at approximately $800.00 per month; the May 22 order nd

was the revised order. 

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Defendant contends that when plaintiff learned that the account was in dispute, “it had

a duty to use due care and preserve such Order [the Original Printing Order] and failed to

present evidence of using such care.” Assuming, arguendo, that a negative inference may

be drawn by the absence of the original records, plaintiff’s proof regarding its document

retention practices and the reason for the absence of the original documents is sufficient to

support a conclusion that the absence of the original documents was not procured by plaintiff

in an effort to suppress the truth or with fraudulent intent. Mr. Moceri’s explanation of the

discrepancy between the May 15 and May 22 orders likewise belies a finding of fraudulent

intent. In addition, there was no contrary or countervailing proof offered by defendant to

support this affirmative defense.

3. Illegality or Unlawful Activity

Defendant asserts that plaintiff is “a common carrier engaged in interstate

communication services” and subject to 47 U.S.C. § 201(b), which provides, in pertinent

part, that “[a]ll charges, practices, classifications, and regulations for and in connection with

such communication service, shall be just and reasonable, and any such charge, practice,

classification, or regulation that is unjust or unreasonable is declared to be unlawful.”

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Defendant contends that “Plaintiff’s practice of not having a policy (1) to maintain the actual

papers marked-up and post-on Printing Orders or approved Proofs in lieu thereof and (2) to

further maintain true and exact copies of signatures, competent for handwriting analysis, is

an unjust and unreasonable practice.” Defendant argues that the May 22, 2007 advertising

 47 U.S.C. 201(b) states: 6

All charges, practices, classifications, and regulations for and in connection with such

communication service, shall be just and reasonable, and any such charge, practice,

classification, or regulation that is unjust or unreasonable is declared to be unlawful:

Provided, That communications by wire or radio subject to this chapter may be classified

into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other

classes as the Commission may decide to be just and reasonable, and different charges may

be made for the different classes of communications: Provided further, That nothing in this

chapter or in any other provision of law shall be construed to prevent a common carrier

subject to this chapter from entering into or operating under any contract with any common

carrier not subject to this chapter, for the exchange of their services, if the Commission is

of the opinion that such contract is not contrary to the public interest: Provided further, That

nothing in this chapter or in any other provision of law shall prevent a common carrier

subject to this chapter from furnishing reports of positions of ships at sea to newspapers of

general circulation, either at a nominal charge or without charge, provided the name of such

common carrier is displayed along with such ship position reports. The Commission may

prescribe such rules and regulations as may be necessary in the public interest to carry out

the provisions of this chapter.

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order should not be enforced because “such enforcement would promote an unlawful

activity.”

There is no evidence in the record that plaintiff, BellSouth Advertising & Publishing

Corporation, is a “common carrier” subject to 47 U.S.C. § 201(b). 47 U.S.C.A. § 153 defines

“common carrier” or “carrier” as:

any person engaged as a common carrier for hire, in interstate or foreign

communication by wire or radio or interstate or foreign radio transmission of

energy, except where reference is made to common carriers not subject to this

chapter; but a person engaged in radio broadcasting shall not, insofar as such

person is so engaged, be deemed a common carrier.

The statute is not applicable to this case.

Moreover, the unavailability of the original document, without more, does notsupport

a finding that plaintiff was engaged in an unjust, unreasonable, or unlawful activity. Mr.

Moceri testified that plaintiff maintained a record retention system through which original

documents and hard and electronic copies were maintained in Birmingham, Alabama; that

the original documents at issue in this case were either lost or destroyed and could not be

obtained; and that the copies introduced by plaintiff represented all the records available.

The document retention system was reasonable and not tainted by fraud or improper motive

or use.

4. Material Breach of Contract

Defendant’s final assertion is that plaintiff materially breached the “telephone service

contract” because the published advertisement contained an incorrect telephone number and

that plaintiff’s breach supports rescission of the contract. Defendant contends that he

“substantially complied” with the requirement of the general terms and conditions of the

contract that he give plaintiff notice of the error and that his affirmative defense of plaintiff’s

material breach should not be foreclosed.

Paragraph fourteen of the terms and conditions states: 

Any claim arising out of an error in publication of Advertising or any claim

arising out of the publication of the directory or directories must be made in

writing to us within six (6) months of publication of the directory or

directories (print or Internet). Otherwise the claim shall be deemed waived by

you. 

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In regard to the publication of the erroneous telephone number, the court

stated:

And then it states in item 14 of the contract, the limitation period, any claim

arising out of an error in publication of advertising or any claim arising out of

the publication of the directory or directories must be made in writing to us

within six months of the publication of the directory; otherwise, the claims

will be deemed waived. Well, six months is a long time to claim an error.

There certainly was an error in the second cell phone number. There are two

errors, and two of the numbers are incorrect based upon the testimony of the

plaintiff, and that’s all the testimony I have to go by. But the plaintiff freely

admitted he did not put his claim in writing at all, much less within the sixmonth period of time of publication.

So, you know, he - - unfortunately, the defendant, based upon the terms of the

contract, waived his right to claim the error and therefore put the issue into

some kind of arbitration that might have saved him some of this advertising.

Defendant concedes on appeal, as at trial, that he did not notify plaintiff in writing of

the incorrect number. The trial court did not err in finding this to constitute a waiver of a

claim for damages or other relief arising from the publication of the erroneous phone number

pursuant to the terms of the contract. To the extent defendant’s affirmative defense was

predicated on plaintiff’s breach, the waiver operated to eliminate rescission of the contract

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as a remedy.

III. CONCLUSION

For the foregoing reasons, the judgment of the Circuit Court for Davidson County is

AFFIRMED.

___________________________________

RICHARD H. DINKINS, JUDGE

In light of our holding on this issue, it is not necessary to reach the issues of whether the erroneous

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listing would constitute a breach of contract and, ifso, whether it was a sufficiently material breach to relieve

defendant of his responsibilities or whether rescission would be the appropriate remedy. 

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