Asset Liquidation Group v. Dante Wadesworth, 01-15-00614-CV

Background

ALG sued Wadsworth in justice court to collect an assigned GE Money Bank credit-card debt; after dismissal, ALG appealed de novo to the county civil court at law.
ALG offered business records and a business-records affidavit by Stephen Faunce (ALG VP/custodian) to prove assignment and amount owed.
Faunce’s affidavit stated the records were originals/duplicates, kept in the regular course of business, made near the time of the events, and relied upon by ALG; it began with language indicating the affiant was sworn.
The jurat on the affidavit was struck through and replaced with an attached California acknowledgment signed by a notary, which stated the notary’s certification under penalty of perjury.
The trial court sustained Wadsworth’s objection under Tex. R. Evid. 902(10), finding the affidavit was not sworn, excluded the records, denied a continuance to cure, and rendered a take-nothing judgment.
On appeal, ALG argued the affidavit satisfied the statutory and evidentiary requirements and exclusion of the records prevented it from presenting its case.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Faunce’s business-records affidavit was a valid sworn affidavit under Texas law	Affidavit language ("Before me... duly sworn") plus attached notary acknowledgment established the affidavit was sworn and met Gov’t Code §312.011	The jurat was struck out and the acknowledgment did not show Faunce swore under oath, so affidavit was defective and records should be excluded	Court held the affidavit was sworn (jurat language + notarized acknowledgment authorized to administer oaths) and therefore valid
Whether excluded business records were admissible under the business-records hearsay exception (Tex. R. Evid. 803(6))	Records, authenticated by custodian affidavit, satisfied business-records exception and were trustworthy	Irregularities in swearing undermined trustworthiness and admissibility	Because affidavit was valid, records met predicate and exclusion was erroneous
Whether exclusion of evidence was harmless or reversible error	Excluding the business records prevented ALG from proving its case on the central issue (amount and assignment), so error was harmful	Exclusion harmless because plaintiff failed to make offer of proof regarding notary mechanics	Court held exclusion was harmful because records were crucial and their substance was in the appellate record
Whether appellant waived error by not making an offer of proof	Substance of excluded evidence was apparent from context and filings, so no offer of proof was required	Failure to show mechanics of notary swearing meant appellant waived complaint	Court held no waiver: the substance of excluded evidence was apparent and before the court

Key Cases Cited

In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (standard of appellate review for evidentiary rulings)
Comiskey v. FH Partners, LLC, 373 S.W.3d 620 (Tex. App.—Houston [14th Dist.] 2012) (review of evidentiary rulings and hearsay issues)
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (reversible error requires showing exclusion probably caused improper judgment)
Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314 (Tex. 2012) (jurat not required but record must show statement was sworn before authorized officer)
Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App.—Houston [1st Dist.] 2010) (when records of another entity may be admitted as affiant’s business records)
State v. Central Expressway Sign Associates, 302 S.W.3d 866 (Tex. 2009) (reviewing harmfulness of evidentiary exclusion in context of entire record)
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867 (Tex. 2008) (criterion for when excluded evidence is crucial to key issue)
Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex. 1995) (definition of affidavit under Texas law)
Norcross v. Conoco, Inc., 720 S.W.2d 627 (Tex. App.—San Antonio 1986) (affidavit sufficient where it expressly stated affiant was duly sworn)