IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 26, 2012 Session

 IN RE ESTATE OF REGINALD BOYA DEMONBREUN

Appeal from the Probate Court for Davidson County

No. 09P1695 David Randall Kennedy, Judge

No. M2011-00161-COA-R3-CV - Filed February 8, 2012

Personal representative appealsfrom order granting $27,900 claim against decedent’s estate.

Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

ANDY D. BENNETT,J., delivered the opinion of the Court, in which FRANK G. CLEMENT,JR.

and RICHARD H. DINKINS, JJ., joined.

Mark Edward Chapman and Sullivan F. Marsden, Nashville, Tennessee, for the appellant,

Larry C. Demonbreun.

Gregory M. Galloway, Nashville, Tennessee, for the appellee, Claude Peters.

MEMORANDUM OPINION

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The appellant, LarryC. Demonbreun (“Mr. Demonbreun”), isthe brother and personal

representative of Reginald Boya Demonbreun (“decedent”). The decedent died unmarried

and intestate on September 26, 2009. He had neither living children nor deceased children

with living issue. Together, the decedent and the appellee, Claude Peters (“Mr. Peters”), had

purchased property at 2119 Courtney Avenue, Nashville, Tennessee, which was the

decedent’s residence at the time of death. On September 3, 2009, Mr. Peters quit claimed

his half of the property (worth $35,000) to the decedent. The note memorializing this

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or 1

modify the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. When a case is decided by memorandum opinion, it shall be designated

“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in

any unrelated case. Tenn. R. Ct. App. 10.
purchase is dated September 14, 2009, is signed by Mr. Peters (seller) and the decedent

(buyer), and states that the decedent will pay $600 each month until the balance ($27,900)

is paid in full.

Mr. Peters filed a $27,900 claim for the unpaid balance against the decedent’s estate

on November 25, 2009, but could not produce the original promissory note. Instead, he

produced a photocopy of the original promissory note. Mr. Demonbreun filed an exception

to Mr. Peters’s claim on March 24, 2010. At the October 13, 2010 hearing, Mr. Demonbreun

argued that, based on the markings that resemble the top portion of a notary seal below the

signature line, the decedent’s signature was photocopied onto the photocopy presented to the

court. The original promissory note was not notarized. Mr. Peters has no explanation as to

why there are markings below the signature line on the copy of the promissory note. In

addition to Mr. Peters, two witnesses testified that they saw Mr. Peters and the decedent

execute the promissory note in question. By order entered December 3, 2010, the probate

court granted Mr. Peters’s $27,900 claim against the decedent’s estate, finding that the

photocopy of the promissory note was admissible pursuant to Tenn. R. Evid. 1004(1).

2

On appeal, Mr. Demonbreun argues that because he raised a genuine question as to

the promissory note’s authenticity, the best evidence rule should have barred its admission.

STANDARD OF REVIEW

Our review of the trial court’s findings of fact is de novo with a presumption of

correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d).

We review questions of law de novo with no presumption of correctness. Nelson v. WalMart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

The admissibility of evidence is within the trial court’s sound discretion, and we

review the trial court’s decision to admit or exclude evidence by an abuse of discretion

standard. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004); Otis v.

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). Under the abuse of

discretion standard, a reviewing court cannot substitute its judgment for the trial court’s

judgment. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). Rather, a

reviewing court will find an abuse of discretion only if the trial court “applied incorrect legal

standards, reached an illogical conclusion, based its decision on a clearly erroneous

assessment of the evidence, or employ[ed] reasoning that causes an injustice to the

Tenn. R. Evid. 1004(1) provides in relevant part that: “The original is not required, and other evidence of a

2

writing, recording, or photograph is admissible if: (1) All originals are lost or destroyed, unless the proponent lost or

destroyed them in bad faith . . . .”

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complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d

346, 358 (Tenn. 2008); see also Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.

2010).

ANALYSIS

After a full hearing in which four witnesses including Mr. Peters testified, the probate

court found that “[Mr. Peters’] testimony is sufficient although not overwhelming that the

original instrument that he had was lost.” The probate court thus admitted the photocopy of

the promissory note in support of Mr. Peters’s claim against the decedent’s estate.

Furthermore, the court noted that there was no testimony presented that the signature on the

photocopy of the promissory note was not the decedent’s signature. We have carefully

reviewed the record, and given the probate court’s unique position to assess the evidence and

the credibility of the witnesses, we conclude that the evidence does not preponderate against

the probate court’s decision and that the court did not abuse its discretion in admitting a

photocopy of the promissory note.

Costs of appeal are assessed against Larry C. Demonbreun, the appellant.

______________________________

ANDY D. BENNETT, JUDGE

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