Court of Appeals of Texas, Fifth District, Dallas
RYAN LYONS, SR., CRYSTAL LYONS, AND/OR ALL OTHER OCCUPANTS OF 735 BEE CREEK DRIVE CEDAR HILL, TEXAS 75104, Appellants
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE LOAN TRUST 2006-WL1, ASSET-BACKED CERTIFICATES, SERIES 2006-WL1, ITS SUCCESSORS AND/OR ASSIGNS, Appellee
Appeal from the County Court at Law No. 5 Dallas County,
Texas Trial Court Cause No. CC-16-01334-E.
Justices Evans, Stoddart, and Boatright
an appeal from an action for forcible detainer in which
appellee Deutsche Bank was awarded possession of the property
at 735 Bee Creek Drive, Cedar Hill, Texas. In a single issue,
appellants Ryan and Crystal Lyons contend the trial court
erred in overruling their hearsay and authentication
objections to Deutsche Bank's business records affidavit
and attached records. For the reasons set forth below, we
affirm the trial court's judgment.
case originated in justice court when Deutsche Bank filed its
original petition for forcible detainer alleging it acquired
the property through a foreclosure sale and the Lyonses were
occupying the property as tenants at sufferance. The justice
court rendered a judgment of possession in favor of Deutsche
Bank. The Lyonses appealed to the county court where the
matter proceeded to a bench trial. At trial, Deutsche Bank
offered into evidence various exhibits including
"Plaintiff's Exhibit 3, " which contained a
business record affidavit from Andrea D. Whitney, an employee
and one of the custodians of records at the law firm of
Aldridge Pite, LLP, along with eleven pages of records
purportedly kept by the firm in the regular course of
business. Exhibit 3 included a "Notice to Vacate and
Demand for Possession" on Aldridge Pite letterhead dated
December 10, 2015 and addressed to the Lyonses, along with
affidavits of mailing by certified and regular mail, and
copies of the addressed envelopes showing the certified mail
article numbers and prepaid postage. The Lyonses objected to
Exhibit 3 "on the basis that it's hearsay and that
it doesn't meet the exception to the hearsay rule and
that there should be a representative from the law firm or
whoever served this here testifying as to the authenticity of
it and the fact that it was actually done." The trial
court overruled the objection and admitted Exhibit 3 into
evidence. At the conclusion of the trial, the trial court
awarded possession of the property to Deutsche Bank and
ordered a supersedeas bond pending appeal in the amount of
$1, 750, renewable monthly. The Lyonses filed this appeal.
their only issue, the Lyonses assert the trial court erred in
admitting Exhibit 3 into evidence because it was inadmissible
hearsay with no exception and contained improperly
authenticated business records. They argue Whitney cannot
properly lay a foundation for the business records exception
needed to authenticate that the December 10 notice to vacate
was actually sent to the Lyonses.
not disturb a trial court's evidentiary rulings absent an
abuse of discretion. See Bay Area Healthcare Grp. Ltd. v.
McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). A
trial court abuses its discretion when it acts without
reference to guiding rules or principles. See U-Haul
Int'l Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.
2012). Hearsay is a statement other than one made by the
declarant while testifying at the hearing or trial that a
party offers in evidence to prove the truth of the matter
asserted in the statement. See Tex. R. Evid. 801(d).
Hearsay is not admissible in evidence unless a statute,
evidence rule, or other rule prescribed under a statute
provides otherwise. Tex. R. Evid. 802. Pursuant to
evidentiary rule 803(6), however, records of a regularly
conducted activity (business records) are one exception to
the hearsay rule, provided the requirements of the rule are
met. See Tex. R. Evid. 803(6). Moreover, business
records accompanied by an affidavit meeting the requirements
of evidence rule 902(10) are self-authenticating. Tex. R.
the business records affidavit signed by Whitney complied
with the requirements of rules 803(6) and 902(10)(B).
Specifically, Whitney testified that she was employed by and
was a custodian of records for Aldridge Pite, eviction
counsel in this case. See Tex. R. Evid. 803(6)(D);
902(10)(B). She further averred that the eleven pages of
attached records were kept in the regular course of business,
and it was in the regular course of business for an employee
or representative of the law firm with knowledge of the act
or event recorded to make the record or to transmit
information thereof to be included in the record.
See Tex. R. Evid. 803(6)(B), (C); 902(10)(B). She
further stated the record was made at or near the time of the
act or event or reasonably soon thereafter. See Tex.
R. Evid. 803(6)(A); 902(10)(B). Exhibit 3 also contains a
certificate of service indicating that the business records
affidavit was mailed to the Lyonses' counsel on March 22,
2016, almost one month before trial. See Tex. R.
Evid. 902(10)(A). At trial, the Lyonses did not argue or
demonstrate that the source of information or the method or
circumstances of preparation indicated a lack of
trustworthiness. See Tex. R. Evid.
803(6)(E). Indeed, in their brief the Lyonses conceded that
there is "no reason to doubt" that the notice to
vacate, affidavits of mailing, and copies of envelopes are
kept by the law firm in its ordinary course of business.
Because Whitney's business records affidavit met the
requirements of both rules 803(6) and 902(10), the trial
court properly overruled the Lyonses' hearsay and
authentication objections to Exhibit 3.
Lyonses argue that even if properly authenticated, "the
purported source of the information supporting that the
December 10, 2015 notice was actually sent to Appellant
[affidavits of mailing and copies of envelopes] indicates a
lack of trustworthiness." They argue there is no
indication if or how the individual who signed the affidavits
obtained the notice to vacate. The party opposing admission
of a record under rule 803(6) has the burden to show the
record's untrustworthiness. See Tex. R. Evid.
803(6)(E). At trial, the Lyonses objected to Exhibit 3 only
on the basis of hearsay and on the basis that "there
should be a representative from the law firm or whoever
served this here testifying as to the authenticity of it and
the fact that it was actually done." Because the Lyonses
failed to demonstrate to the trial court a lack of
trustworthiness of the records in question, the trial court
did not abuse its discretion in admitting Exhibit 3 under
resolve the Lyonses' sole issue against them. We affirm
the trial court's judgment.
accordance with this Court's opinion of this date, the
judgment of the trial court is AFFIRMED.
ORDERED that appellee Deutsche Bank National Trust Company,
as trustee, in trust for registered holders of Long Beach
Mortgage Loan Trust 2006-WL1, asset-backed certificates,
Series 2006-WL1, its successors and/or assigns recover its
costs of this appeal and the accrued rent from appellants
Ryan Lyons, Sr. and Crystal Lyons and/or all other occupants
of 735 Bee Creek Drive Cedar Hill, Texas 75104 and the cash
deposit in lieu of supersedeas bond. After all costs and rent
have been paid, we order the clerk to release the ...