Nischke v. Farmers & Merchants Bank & Trust

MYSE, J.

(dissenting). I respectfully dissent from that portion of the majority opinion that concludes that the trial court erroneously exercised its discretion by admitting Nischke's testimony concerning telephone conversations with a purported bank employe. As the majority notes, the decision to admit or exclude evidence is discretionary with the trial court, and an appellate court will not reverse a discretionary decision unless it concludes that there is an erroneous exercise of discretion. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262, 265 (Ct. App. 1992). Discretionary determinations are to be reviewed deferentially. Id.

Here, the trial court correctly cited the law controlling the admission of the evidence in question. Section *122909.01, Stats., requires the establishment of authenticity of evidence before the evidence may be admitted. The authenticity requirement is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. Authentication involves a low threshold of proof merely sufficient to permit a reasonable person to conclude the matter is what the proponent claims. 2 McCormick ON EVIDENCE § 227 at 53 (John W. Strong ed. 1992). The proponent need not prove that the matter is what the proponent claims, but must only establish sufficient authentication to support admissibility so that the jury may ultimately resolve the disputed issue of fact regarding the nature of the proposed evidence. WlS. Stat. Ann. § 909.01 (West 1994) Judicial Council Committee's Note, 1974; McCormick, supra, § 194 at 53-54. Authentication may be accomplished through circumstantial evidence. Campbell v. Wilson, 18 Wis. 2d 22, 30 n.1, 117 N.W.2d 620, 625 n.1 (1962).

The trial court examined the evidence of record and concluded that it was sufficient to authenticate the telephone conversation between Nischke and the purported bank representatives. Here, Nischke testified that in spring 1984, she received a phone call from a man stating he was with the bank and that the bank wanted to remove the pump and tank from her property. Several days later, two men arrived who stated that they were from the bank. They removed the pump from Nischke's property and told her they would come back later to remove the tank. Statements in accord with the nature of the commercial transaction are sufficient to meet the authenticity requirement. Here the nature of the commercial transaction between the bank and Nischke is sufficient to authenticate both the phone conversation and the conversation surrounding *123the removal of the pump and the promised removal of the tank.

On March 9, 1984, presumably prior to the telephone call, the bank sent Carl Nischke a letter stating that it had taken possession of Rowley's assets and offering to sell the pump and tank to the Nischkes. The letter requested a response to the offer within fifteen days. Nischke did not purchase the pump and tank. The subsequent telephone call purporting to be from the bank announcing that it was going to remove its secured property from Nischke's land is a natural and anticipated extension of a series of events concerning the pump and tank, and is entirely consistent with the prior dealings between Nischke and the bank. It must be remembered that the issue we are dealing with is not whether there is proof that the call originated from agents of the bank, but simply whether there is sufficient authentication to permit the jury to resolve this disputed issue of fact.

The majority opinion disposes of the authentication issue by concluding that the knowledge of the tank's existence and the bank's action as a secured creditor were not facts uniquely within the bank's knowledge. The majority notes that the bank told Rowley about the bank's action as a secured creditor, the bank's letter to the Nischkes offering to sell the pump and tank and the Nischkes' refusal to purchase the pump and tank. However, the fact that the bank may have voluntarily shared this information does not defeat authentication because the statements are consistent with the commercial transaction between the bank and the Nischkes. Campbell, 18 Wis. 2d at 30 n.1, 117 N.W.2d at 625 n.1, and the cases cited in the footnote do not require that the caller possess unique knowledge. Rather, a telephone call may be authenti*124cated "[w]here the message itself reveals that the speaker has knowledge of facts which only the person whose name he has used would be likely to know." (Emphasis added.) Merchants' Nat'l Bank v. State Bank, 214 N.W. 750, 753 (Minn. 1927), cited in the footnote, ruled that a telephone call to the witness may be authenticated if it is "reasonably inferable" from the content of the conversation, the time of its occurrence and the prior and subsequent conduct of the parties that the caller is who he or she purports to be.

Here, a reasonable person could conclude that the bank alone had the right to remove these items from the Nischkes' land and to take them into its possession. While Rowley may have known about the bank's letter and that the Nischkes refused to purchase the tank and pump, no one suggests that these facts are common knowledge. Thus, it is "reasonably inferable," based upon these circumstances, that a person purporting to exercise the power to remove the pump and tank on the bank's behalf was acting for the bank. Whether the caller was in fact a bank agent or Rowley is a proper question for the jury to resolve.

Based upon the deferential standard of review applied to trial court discretionary determinations regarding the admissibility of evidence, the degree of authentication that exists from the circumstances surrounding the statement and the fact that the bank had a full and fair opportunity to try this disputed issue of fact before the jury, I would not reverse the judgment based upon the trial court's admission of this evidence.