law-BRA | SUFFICIENCY OF BUSINESS RECORDS AFFIDAVIT | SUMMARY JUDGMENT EVIDENCE |
BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE
The business records exception provides that evidence meeting certain criteria should not be
excluded under the hearsay rule. See Tex. R. Evid. 803(6).
The four requirements are (1) the records were made and kept in the course of a regularly
conducted business activity, (2) it was the regular practice of the business activity to make the
records, (3) the records were made at or near the time of the event that they record, and (4) the
records were made by a person with knowledge who was acting in the regular course of business.
In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.-Houston [14th Dist.] 2006. pet. denied).
The prerequisites of rule 803(6) may be provided by the custodian of records or a "qualified
witness." Tex. R. Evid. 803(6). Rule 803(6) does not require a witness who is laying the predicate
for introduction of a business record to be the creator of the document or even an employee of the
company keeping the subject record. Houston Shell & Concrete Co. v. Kingsley Constructors, Inc.,
987 S.W.2d 184, 186 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather, an affiant may qualify
as a "qualified witness" by demonstrating personal knowledge of the facts contained within the
business record. Id. (citing Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982)).
"Determining admissibility of business records affidavits involves deciding whether `the source of
information or the method or circumstances of preparation indicate a lack of trustworthiness.'"
Simien v. Unifund CCR Partners, 321 S.W.3d 235, 246 (Tex. App.-Houston [1st Dist.] 2010, no
pet.) (citing Tex. R. Evid. 803(6)). The admission or exclusion of evidence rests within the sound
discretion of the trial court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).
In his first issue, John contends the trial court abused its discretion in excluding the business records
that accompanied the business records affidavit of Ellen Fong. According to John, during the March 14,
2008 hearing, the trial court admitted the affidavit of Ellen Fong; however, the court did not admit the
documents that were attached to the affidavit after Lauri objected that the affidavit: (1) did not state the
number of pages of records that were attached; (2) was not notarized; and (3) was not prepared by the
custodian of records. John contends that the affidavit substantially complied with the Texas Rules of
Evidence; therefore, the trial court should have admitted the documents into evidence.
We review a trial court’s admission or exclusion of evidence under an abuse of discretion standard.
Rezaie v. State, 259 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). As long as the trial
court’s evidentiary ruling is within the zone of reasonable disagreement, the ruling may not be disturbed on
appeal. Id. Only when a trial court acts without reference to any guiding rules and principles does it go
beyond the zone of reasonable disagreement. Id.
Rule 902(10)(a) of the Texas Rules of Evidence allows business records to be offered under Rule 803
(6) and admitted into evidence if the records are accompanied by an affidavit at least fourteen days prior
to trial. Tex. R. Evid. 902(10)(a). Rule 902(10)(b) sets out the form of affidavit to be used when business
records are introduced; however, Rule 902(10)(b) also states that the form provided in the rule is not
exclusive, and an affidavit that substantially complies with the sample affidavit will suffice. Tex. R. Evid. 902
(10)(b); see also Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 360-61 (Tex. App.—Dallas 2007,
pet. denied); Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex. App.—Houston [1st Dist.] 1991, no writ).
Section 312.011(1) of the Texas Government Code defines an affidavit as a “statement in writing of a
fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1) (Vernon
2005). An affidavit without a notary’s seal is not properly notarized and therefore, is defective. Venable v.
State, 113 S.W.3d 797, 800 (Tex. App.—Beaumont 2003, pet. ref’d); see also Wilie v. Signature
Geophysical Services, Inc., 65 S.W.3d 355, 361 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
In this case, the affidavit of Ellen Fong offered by John was not properly notarized. The absence of the
notarial seal itself renders the affidavit defective. See Venable, 113 S.W.3d at 800. Because the affidavit
was not notarized, we conclude that the affidavit failed to substantially comply with the form provided in
Rule 902(10)(b). See id. Accordingly, we hold the trial court did not err in excluding the business records
attached to Ellen Fong’s affidavit. John’s first issue is overruled.
JOHN A. LYONS v. LAURI D. LYONS; from Bexar County;
4th district (04-08-00259-CV, ___ SW3d ___, 01-14-09, pet. denied Sep. 2009)
(divorce appeal, business records affidavit defective, findings of fact & conclusions of law, error
preservation for appellate review) as redrafted