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Lyons v. Deutsche Bank National Trust Co.

Court of Appeals of Texas, Fifth District, Dallas

March 2, 2017

RYAN LYONS, SR., CRYSTAL LYONS, AND/OR ALL OTHER OCCUPANTS OF 735 BEE CREEK DRIVE CEDAR HILL, TEXAS 75104, Appellants
v.
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

         On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-16-01334-E.

          Before Justices Evans, Stoddart, and Boatright

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         This is 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.

         This 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.

         In 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.

         We do 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. Evid. 902(10).

         Here, 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.

         The 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 rule 803(6).

         We resolve the Lyonses' sole issue against them. We affirm the trial court's judgment.

         JUDGMENT

         In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

         It is 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 ...


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