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Jerkins v. Jerkins

A proper foundation was laid for the closing attorney to read a letter to the jury as a past recollection recorded, since the attorney's testimony established that he memorialized the conversation with the decedent and two of his sons when it was fresh in his mind and he believed the letter was true and accurate.

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At issue in this appeal is whether the trial court erred in allowing the closing attorney in a real estate transaction to read to the jury a letter memorializing a conversation between the attorney and the appellant’s deceased father. The appellant contends that a proper foundation was not laid for introduction of the evidence as a past recollection recorded, and that the evidence was inadmissible because it was hearsay and a self-serving declaration. For the following reasons, we affirm. The record shows that the decedent, Lee F. Jerkins, had three sons, Gregory, Keith, and Jeffrey. Gregory, as executor of the decedent’s estate, sued his brother Keith, claiming that Keith had breached his fiduciary duties as a former executor of the estate. Gregory also asked that the trial court declare the legal relations of the parties to the estate. Keith responded that the declaration of rights should include a determination of Gregory’s indebtedness to the estate.

The relevant facts surrounding the dispute over Gregory’s indebtedness were as follows. The decedent’s wife and mother of the three sons predeceased the decedent in 1995. Each of the sons received an advance from the decedent on the amount he was to receive from his mother’s estate, including $10,000 advanced to Gregory. At that time, Gregory also was indebted to the decedent in the amount of $215,000 based on a separate loan.

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