Richard G. Ortega v. Cach, LLC , 2013 Tex. App. LEXIS 830 ( 2013 )

Reversed and Remanded and Majority and Dissenting Opinions filed January
29, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00768-CV
RICHARD G. ORTEGA, Appellant,
V.
CACH, LLC, Appellee.
On Appeal from the County Civil Court at Law No. 3
Harris County
Trial Court Cause No. 978366
MAJORITY OPINION
This appeal arises from a debt-collection action in which appellee CACH,
LLC, sued appellant Richard G. Ortega seeking to recover against him as the
alleged assignee of Ortega’s credit-card debt. Following a bench trial, the trial
court rendered judgment against Ortega. On appeal, he challenges the legal and
factual sufficiency of the evidence as well as certain evidentiary rulings of the trial
court. Concluding that the trial court erroneously admitted hearsay evidence and
that this error probably resulted in an improper judgment, we reverse and remand.
I
CACH sued Ortega for breach of contract based upon Ortega’s failure to
repay a debt under an agreement for consumer credit. According to the pleadings,
MBNA—which later became Bank of America—originally issued a credit card in
Ortega’s name in 1998, and Ortega used or authorized use of the card, thereby
incurring charges that he later failed and refused to pay. The credit card was
cancelled when Ortega defaulted in making payments on the account. CACH
alleges that it purchased the account with an outstanding balance of $13,741.73
and consequently brought suit as the alleged assignee of this debt.
Ortega answered the suit, asserting, among other defenses, that there had
been no valid assignment of the account to CACH. In a counterclaim, Ortega
asserted violations of the Texas Fair Debt Collection Practices Act.
During a bench trial in the court below, Ortega stated his name and
acknowledged that he lived at 6423 Monahiti Place Northeast, Albuquerque, New
Mexico 87107 (―Address‖), between 1998 and 2009. Ortega testified that he had a
couple of credit cards in 1998 but could not recall which ones they were or whether
one was from MBNA. When asked whether he received a billing statement from
MBNA at the Address, Ortega testified, ―Just like I said, I don’t remember if I had
Bank of America.‖ When asked whether he had been notified by MBNA that the
company had become Bank of America, Ortega testified that he did not remember
that either.1 Nor did Ortega recall whether he received a credit card from Bank of
America. Nevertheless, when presented with a Bank of America account statement
bearing his name and the Address, Ortega conceded that he must have had a credit
1
Ortega initially answered, ―I remember that.‖ But shortly thereafter he said, ―I don’t
remember.‖ The trial judge stated that she knew Ortega meant to say he did not remember but
that he had actually said he did remember. The trial judge admonished Ortega to speak loudly
and to be careful to say what he meant to say.
2
card from Bank of America and probably received that type of statement. Ortega
also agreed that a billing statement, dated July 2009, from Bank of America
reflected his name, correct mailing address, and a balance of $13,741.73. Ortega
could not recall using the credit card, but testified that if he had, it would have
been for family and household items and groceries. Ortega could not recall whether
he submitted any written disputes to Bank of America relating to interest rates or
fees associated with the use of the card.
CACH moved to admit into evidence a business-record affidavit signed by
Magic West of CACH as Plaintiff’s Exhibit 1. Twenty-one pages of records were
attached to the affidavit, including the following:
(1) a second affidavit signed by Magic West (―West Affidavit‖);
(2) a document entitled ―Affidavit of Claim and Certification of Debt‖
signed by Debra L. Pellicciaro of Bank of America, N.A. (―Pellicciaro
Affidavit‖);
(3) a document entitled ―Affidavit of Claim and Certification of Debt‖
signed by Elisabeth W. Plummer of Bank of America, N.A.
(―Plummer Affidavit‖);
(4) a November 2008 billing statement from Bank of America
reflecting a payment of $258 on 11/03, an unpaid balance of
$12,602.72, the Address, and an account number of
[XXXXXXXXXXXX4161];
(5) a September 2008 billing statement from Bank of America
reflecting a payment of $268 on 8/30, an unpaid balance of
$12,865.85, the Address, and an account number of
[XXXXXXXXXXXX4161];
(6) a July 2009 billing statement from Bank of America reflecting an
unpaid balance of $13,741.73, the Address, and an account number of
[XXXXXXXXXXXX4161];
(7) a general statement of the provisions of a Bank of America, N.A.
card-member agreement that is not signed by Ortega; and
(8) a general statement of the provisions of an MBNA America Bank,
3
N.A., credit-card agreement that is not signed by Ortega.
At trial, Ortega objected to the admission of the portions of the West,
Pellicciaro, and Plummer Affidavits that related to the alleged sale and assignment
of his account to CACH, arguing that those portions were hearsay and were also
not the best evidence of CACH’s ownership of the account. The trial court
overruled Ortega’s objections and admitted Plaintiff’s Exhibit 1 in its entirety.
Ortega challenges these evidentiary rulings in this appeal.
In the West Affidavit, West states that she is an authorized agent for and a
custodian of records of CACH and states the following in pertinent part:
As authorized agent and custodian of the business records for
[CACH], I have personal knowledge based upon the review of
the documentation provided by the original creditor (attached
hereto) that, after all just and lawful offsets, payments, and
credits have been allowed, the total balance on the account of
$13,741.73 is just and true and is due and owing from [Ortega]
to [CACH].
Demand for payment of the just amount owing [CACH] by
[Ortega] was made upon [Ortega] more than thirty (30) days
prior to filing of [CACH’s] original petition, and payment for
the just amount owing has not been tendered.
In the Pellicciaro Affidavit, Pellicciaro states that she is employed as a bank
officer by Bank of America, NA, and states ―[t]hat as a result of the sale of said
accounts, CACH and/or its authorized agent, has complete authority to settle,
adjust, compromise and satisfy the account and that Bank of America has no
further interest in this account for any purpose.‖
In the Plummer Affidavit, Plummer states that she is employed as a bank
officer by Bank of America, NA, successor in interest to MBNA Bank, NA, and, in
relevant part, states the following:
4
That there is due and payable from RICHARD G. ORTEGA as
of 8/18/2009 the sum of $13,741.73 withstanding [sic] legally
chargeable post charge-off interest, pursuant to the terms of the
card member agreement with Bank of America.
That said agreement and account was, on 8/18/2009 sold,
transferred and set over unto CACH, LLC, with full authority to
do and perform all acts necessary for collection, settlement,
adjustment, compromise or satisfaction of the said claim.
That as a result of the sale of said account, CACH, LLC, and/or
its authorized agent, has complete authority to settle, adjust,
compromise and satisfy same that Bank of America had no
further interest in this account for any purpose.
CACH’s counsel testified regarding attorney’s fees. The trial court ruled in
favor of CACH and signed a final judgment ordering that CACH recover actual
damages of $13,741.73 from Ortega as well as attorney’s fees and court costs. This
appeal followed.
On appeal, Ortega argues: (1) the trial court erred in overruling hearsay and
best-evidence objections to the West, Pellicciaro, and Plummer Affidavits; (2) the
trial court erred in rendering judgment for CACH because the record contains
legally or factually insufficient evidence that the account was assigned to CACH;
and (3) the trial court erred in rendering judgment for CACH because there is no
evidence of how CACH calculated the finance charges and arrived at the debt
balance that it requested and received from the trial court.2 When an appellant
asserts multiple grounds for reversal of the trial court’s judgment, this court should
first address all issues that would require rendition and then, if necessary, consider
issues that would result in remand. See Tex. R. App. P. 44.3; Natural Gas
2
In Ortega’s fourth issue, he argues that the trial court erred in granting judgment for
CACH because CACH failed to prove that it owned Ortega’s account or how it calculated
damages. Because this issue is redundant of Ortega’s first three issues, we do not address it
separately.
5
Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003). Because sustaining
Ortega’s second or third issue would result in rendition of judgment in his favor,
we will consider those first.
II
In his second issue, Ortega argues that because the West Affidavit, the
Pellicciaro Affidavit, and the Plummer Affidavit are all conclusory, there is no
evidence that Bank of America sold Ortega’s account to CACH. The dissent would
resolve the case on this issue, reversing and rendering judgment for Ortega. We
respectfully disagree, and overrule Ortega’s second issue.
Ortega did not complain that the affidavits were conclusory at the trial court,
but a litigant may raise a conclusory objection for the first time on appeal. City of
San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). The dissent believes
that all three affidavits are conclusory. But the Plummer Affidavit states a fact, not
a conclusion or an opinion.
In her affidavit, Plummer testified in part: ―That said agreement and account
was, on 8/18/2009 sold, transferred and set over unto CACH, LLC . . .‖ Plummer
identified herself as an officer of Bank of America and stated ―[t]hat the statements
made in this Affidavit are based on the computerized and hard copy books and
records of Bank of America.‖ According to the dissent, the affidavit is conclusory
because Plummer provides no factual basis to support this statement.
But a person may testify to a sale and assignment without providing any
documentary evidence. Prudential Ins. Co. of Am., Inc. v. Black, 572 S.W.2d 379,
380 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ) (allowing a partner in a
partnership to testify to sale and assignment of a lease without the underlying sale
and assignment documents). Plummer could testify on her personal knowledge that
the account was transferred to CACH without providing any supporting
6
documentation.3 Her statement that the account was sold to CACH is not
conclusory. We overrule Ortega’s second issue.
III
In his third issue, Ortega argues that the trial court erred in granting
judgment for CACH because CACH presented no evidence proving how the
finance charges were calculated and how CACH arrived at the debt balance
requested by CACH and awarded by the trial court. In response, CACH argues that
Ortega failed to preserve this error. We agree.
To preserve a complaint for appellate review, the appellant must present to
the trial court a timely request, objection, or motion with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds are
apparent from the context. Tex. R. App. P. 33.1(a). Although a complaint
regarding the legal or factual insufficiency of the evidence may be made for the
first time on appeal, an objection to insufficient foundation is one of form rather
than substance and must be preserved. See id. 33.1(d); Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
In Ortega’s brief, he fails to elaborate on this point beyond restating the
issue. In context, however, we understand his argument to be an objection to
insufficient foundation. Because he failed to object to CACH’s calculations of
finance charges and of the debt balance to the trial court, he has not preserved the
error. See Hou-Tex, Inc., 26 S.W.3d at 112 (holding objections that an affidavit
was speculative, without foundation, and lacked personal knowledge are all defects
3
To the extent that Ortega complains that the Plummer Affidavit lacks foundation, his
objection is waived. An objection to insufficient foundation is one of form, not substance, and
thus Ortega was required to make that objection below. He did not. See Hou-Tex, Inc. v
Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
7
of form and must be raised in the trial court). Accordingly, we overrule this issue.
IV
In his first issue, Ortega argues that the trial court erred by admitting the
West, Pellicciaro, and Plummer Affidavits in their entirety over his hearsay and
best-evidence objections. With regard to Ortega’s hearsay argument, we agree.
Evidentiary rulings are committed to the trial court’s sound discretion. Bay
Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per
curiam). A trial court abuses its discretion only when it rules without regard for
any guiding rules or principles, and we must uphold a trial court’s evidentiary
ruling if there is any legitimate basis to support it. Owens-Corning Fiberglas Corp.
v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Even if a court erroneously admitted
improper evidence, the complaining party must show that the error probably
resulted in an improper judgment, which typically requires a showing that the
judgment turned on the particular evidence in question, to warrant reversal. Tex. R.
App. P. 44.1; Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001). In making this determination, we review the entire record. Interstate
Northborough, 66 S.W.3d at 220.
Ortega does not challenge the admissibility of the billing statements or
credit-card agreements in Plaintiff’s Exhibit 1, which were properly admitted under
the business-records exception in rule 803(6). Nor does he contend that the
business-record affidavit fails to properly authenticate those records under rule
902(10). His challenge is limited to the paragraphs in the West, Pellicciaro, and
Plummer Affidavits regarding the sale and assignment of Ortega’s account from
Bank of America to CACH. In response, CACH insists that the affidavits were
admissible in their entirety under the business-records hearsay exception.
8
Hearsay is an out-of-court statement offered in evidence to prove the truth of
the matter asserted and is inadmissible unless a statute or rule of exception applies.
Tex. R. Evid. 801(d); 802. The proponent of hearsay has the burden of showing
that the testimony fits within an exception to the general rule. Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004); Skillern & Sons v. Rosen,
359 S.W.2d 298, 301 (Tex. 1962).
Under the business-records exception, evidence that is otherwise
inadmissible as hearsay may be admissible if the proponent of the evidence
demonstrates that (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 create such records; (3) the records were created at or near the time of the event
recorded; and (4) the records were created by, or from information transmitted by,
a person with knowledge who was acting in the regular course of business. Tex. R.
Evid. 803(6); see In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied). These prerequisites to admissibility may be provided in
the form of an affidavit that complies with rule 902(10). Tex. R. Evid. 803(6). The
predicate witness need not be the creator of the record nor have personal
knowledge of the content of the record but rather need only have personal
knowledge of the manner in which the records were prepared. In re E.A.K., 192
S.W.3d at 142. Further, third-party documents can become the business records of
an organization and consequently admissible under rule 803(6) if the records are
(1) incorporated and kept in the course of the testifying witness’s business, (2) the
business typically relies upon the accuracy of the contents of the documents, and
(3) the circumstances otherwise indicate the trustworthiness of the documents.
Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240–41 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (citing Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—
9
Houston [1st Dist.] 2004, pet. ref’d)); see Ainsworth v. CACH, LLC, No. 14-11-
00502-CV, 2012 WL 1205525, at *5 (Tex. App.—Houston [14th Dist.] Apr. 10,
2012, pet. denied) (mem. op.).
The theory underlying the business-records exception is that there is a
certain probability of trustworthiness of records regularly kept by an organization
while engaged in its activities and upon which it relies in the ordinary course of its
activities. Sneed v. State, 955 S.W.2d 451, 453 (Tex. App.—Houston [14th Dist.]
1997, pet. ref’d) (citing Coulter v. State, 494 S.W.2d 876, 884 (Tex. Crim. App.
1973)). Therefore, if ―the source of information or the method or circumstances of
preparation indicate lack of trustworthiness,‖ even a properly authenticated record
may be inadmissible. Tex. R. Evid. 803(6). Lack of trustworthiness is most
frequently found when the record was prepared in anticipation of litigation. United
States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993)4 (―[W]hen a document is
created for a particular use that lies outside the business’s usual operations—
especially when that use involves litigation—neither of [Federal Rule 803(6)’s]
justifications for admission holds. . . . [W]e adhere to the well-established rule that
documents made in anticipation of litigation are inadmissible under the business
records exception.‖); Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710, 714–15
(Tex. App.—Houston [1st Dist.] 2001, no pet.) (concluding that when the facts
indicate that a letter from the plaintiff’s doctor to his attorney was written in
4
Because the Texas Rules of Evidence are patterned after the Federal Rules of Evidence,
cases interpreting federal rules should be consulted for guidance as to their scope and
applicability unless the Texas rule clearly departs from its federal counterpart. Cole v. State, 839
S.W.2d 798, 801 (Tex. Crim. App. 1990). The definition of ―business‖ under the Texas rule was
taken from the old Texas statute, rather than from Federal Rule 803(6). See JEFF BROWN &
REECE RONDON, TEXAS RULES OF EVIDENCE HANDBOOK 870 n.637 (2013 ed.). The legislature
preferred the Texas definition because it has been recognized as the broadest, most
comprehensive possible description of the category of enterprises whose records are admissible
under the exception. See id. But that distinction does not affect the applicability of the federal
guidance cited here.
10
response to a request from the attorney, it was likely prepared in anticipation of
litigation and was thus not admissible as a business record).
Except in those instances specified by statute or rule, affidavits are not
evidence in contested cases. Stephens v. City of Reno, 342 S.W.3d 249, 253 (Tex.
App.—Texarkana 2011, no pet.) (―[A]bsent authority to the contrary, affidavits are
not, as a general rule, admissible in a trial as independent evidence to establish
facts material to the issues being tried.‖); Roberts v. Mullen, 446 S.W.2d 86, 90
(Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.) (―Except in instances specified by
statute or rule . . . affidavits are not evidence in contested cases.‖). Accordingly,
when an ex parte affidavit presents evidence beyond the simple authentication
requirements of rule 902, the extraneous portions of the affidavit constitute
inadmissible hearsay. United States v. Stone, 604 F.2d 922, 925 (5th Cir. 1979).
A
In this case, the business-record affidavit has 21 pages of documents
attached to it, including the West, Pellicciaro, and Plummer Affidavits. Although
the affidavits are notarized and thus self-authenticating, they still may be
inadmissible if they are hearsay. Tex. R. Evid. 902(8); McLeod v. State, 56 S.W.3d
704, 710 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
1
The West Affidavit is offered as a business record of CACH, but it is clear
from the face of the document that it was prepared for the purpose of litigation.
The affidavit has the heading of a pleading and refers to CACH and Ortega as
―Plaintiff‖ and ―Defendant,‖ respectively. Additionally, CACH filed its original
petition on November 22, 2010, and the West Affidavit, dated November 10, 2010,
states that CACH made demand for payment upon Ortega more than thirty days
11
prior to the filing of CACH’s original petition but that payment had not been
tendered. The fact that West created the affidavit only after CACH’s initial
collection efforts were unsuccessful shows that it was neither created nor relied
upon in the course of CACH’s regular debt-collection activities. Therefore, we
adhere to the well-established rule and conclude that this document, which was
made in anticipation of litigation, was not admissible under the business-records
exception. See Blackburn, 992 F.2d at 670.
2
CACH also offers the Pellicciaro Affidavit, which is dated February 2, 2009,
as a document created by a third party that has become a business record of
CACH. Initially, the fact that this affidavit is dated approximately one year and ten
months before CACH filed suit suggests that it was prepared in the regular course
of Bank of America’s business activity rather than in anticipation of litigation.
Nevertheless, it was also executed more than six months before August 18, 2009,
the date upon which, according to the Plummer Affidavit, CACH acquired
Ortega’s account from Bank of America. This could mean one of two things: either
the date in the Plummer Affidavit is wrong, or the Pellicciaro Affidavit concerns
some account other than Ortega’s. Whichever is true, the circumstances
surrounding the Pelliccario Affidavit do not indicate trustworthiness and the
document does not fall within the business-records exception.
3
Finally, the Plummer Affidavit is offered as a third-party document created
by Bank of America that has become a business record of CACH. In the business-
record affidavit, to which the Plummer Affidavit is attached, West testifies that the
documents from MBNA are ―maintained by individuals who have a business duty
to make entries in the records accurately at or near the time of the event that they
12
record.‖ But the Plummer Affidavit is dated September 9, 2010, and asserts that
Bank of America sold Ortega’s account to CACH on August 18, 2009. A record of
a sale made more than a year after a sale takes place is clearly not ―at or near the
time of the event‖ that it purports to record. Further, there is a notation at the
bottom of the Plummer Affidavit that reads ―CACH, LLC 9.8.10.‖ If those
numbers refer to a date, it would be the day before Plummer executed the affidavit,
which suggests that she did so at CACH’s request. And even assuming those
numbers are not significant, the fact that the affidavit is dated about two and a half
months before CACH filed suit and over a year after the alleged date of sale
suggests that it was created in anticipation of litigation rather than in the course of
a regular business activity, which casts doubt on its trustworthiness. See Freeman,
53 S.W.3d at 715 (citing the fact that a record was dated ―over 10 years after the
cause of action accrued and a mere 10 days before the summary[-]judgment
hearing‖ to conclude that it was prepared in anticipation of litigation and thus
inadmissible as a business record under rule 803(6)).
The rationale behind the business-records exception is twofold: First,
businesses depend on such records to conduct their own affairs, so employees who
generate them have a strong motive to be accurate and none to be deceitful;
second, routine and habitual patterns of creation lend reliability to business
records. Blackburn, 992 F.2d at 670. But the circumstances surrounding the
Plummer Affidavit do not reflect the conditions of either of those justifications.
After reviewing the entire record, we conclude that it does not fall within the
business-records exception.5
5
It appears that the point of the Plummer Affidavit is to tell the story of CACH’s
acquisition of Ortega’s account from Bank of America. Had this affidavit been attached to a
motion for summary judgment, it might have been admissible under Rule 166a. Or had the
information the affidavit conveys been offered at trial by a live witness or through a deposition,
13
4
We therefore conclude that there is no legitimate basis upon which the trial
court’s overruling of Ortega’s hearsay objection can be supported. See Owens-
Corning Fiberglas Corp., 972 S.W.2d at 43. Having made that determination, we
must decide whether the trial court’s error resulted in an improper judgment.
Without the challenged paragraphs, there would be insufficient evidence to
prove the assignment of the account to CACH, and thus insufficient evidence upon
which the trial court could have reasonably rendered a judgment in CACH’s favor.
Therefore, we conclude that the judgment turned on the improperly admitted
evidence and must be reversed.
B
Issues similar to those upon which we decide this case have arisen in two
other credit-card cases we decided earlier this year. In both of those cases, the
creditor prevailed. But both are readily distinguishable from this case.
1
CACH itself came before this court earlier this year as the appellee in a case
with a similar set of facts. See Ainsworth, 2012 WL 1205525. In Ainsworth, CACH
allegedly purchased the appellant–debtor’s account from Chase Bank. Id. at *2.
CACH introduced into evidence a business-record affidavit, which authenticated a
number of attachments, including a bill of sale showing that CACH purchased the
account from Chase, and a notarized document executed by a Chase employee
and thus subjected to cross-examination, it also likely would have been admissible. But, as we
have noted above, ―affidavits are not, as a general rule, admissible in a trial as independent
evidence to establish facts material to the issues being tried.‖ Stephens, 342 S.W.3d at 253. And,
as we have described, CACH’s attempt to avert the general rule via the business-records
exception falls short.
14
titled ―Affidavit of Sale.‖ Id. at *1–2. In this affidavit, the Chase employee stated
that the appellant’s account was sold and assigned to CACH with an account
balance of $4,567.07. Id. at *2. The appellant objected to the affidavit at trial based
on hearsay, but his objection was overruled. Id. at *4.
On appeal, this court concluded that the circumstances indicated the
trustworthiness of the document based on the fact that Chase’s failure to keep
accurate records could result in criminal or civil penalties and that the amount of
the debt in the affidavit matched the amount recorded in the bill of sale. Id. at *5.
The court thus found that the affidavit fell within the business-records exception.
Id. But the facts of the present case are clearly distinguishable. First, CACH did
not introduce a bill of sale to substantiate the affiants’ statements regarding the
sale. Second, the Ainsworth court did not indicate that the date of the contested
affidavit was relevant to its analysis. As described above, however, the dates of the
affidavits in this case are highly relevant and indicate that the affidavits are not
trustworthy. Therefore, because of these factual distinctions, our holding in this
case is not inconsistent with our holding in Ainsworth.
2
This court also considered similar issues in Kaldis v. U.S. Bank Nat’l Ass’n,
No. 14-11-00607-CV, 2012 WL 3229135 (Tex. App.—Houston [14th Dist.] Aug.
9, 2012, pet. filed) (mem. op.). In that case, we ruled in favor of the appellee–
creditor, but again, the facts are distinguishable from those in the present case. In
Kaldis, the appellant objected to portions of the business-record affidavit based on
hearsay because, he argued, the contested statements exceeded the scope of a
business-record affidavit. Id. at *3. Among the business records that the affidavit
purported to authenticate were copies of notice-to-vacate letters as well as
documents indicating that the post office returned the certified-mail letters to the
15
appellee ―unclaimed.‖ Id. at *1. In the business-record affidavit, the affiant stated
that the notice letters were sent on specific dates by certified mail, return receipt
requested, as well as by first-class mail, and that the letters sent by certified mail
were returned unclaimed while the first-class letters were not returned. Id. The
appellant contested the portions of the business-record affidavit regarding the dates
and ways in which the notice letters were mailed. Id. at *3.
Based on the fact that the affiant specified that she had personal knowledge
of the facts set out in her affidavit and that she had actual or constructive care,
custody, and control of the attached records, we concluded that the trial court did
not abuse its discretion by admitting the affidavit in its entirety. Id. But in this case,
the challenged affidavits are not business-record affidavits. They are offered as
business records themselves. And even if we analyze them as business-record
affidavits, the challenged portions clearly exceed the scope of such affidavits.
Unlike Kaldis, in which the affiant testified as to details directly related to the
business records, the challenged portions of the West, Pellicciaro, and Plummer
Affidavits refer to the sale of Ortega’s account from Bank of America to CACH, a
fact which is completely absent from the remaining unchallenged business records.
Without that nexus, the statements are inadmissible because they constitute
independent evidence being used to establish CACH’s ownership of the account,
which is a fact material to the issues being tried. See Stephens, 342 S.W.3d at 253.
Therefore, our holding in this case is not inconsistent with our holding in Kaldis.
Because the trial court erroneously admitted hearsay evidence, and because
that evidence was essential to the judgment, Ortega’s first issue is sustained.
***
Because we conclude that the trial court erred by admitting improper
evidence and that the judgment turned on the improperly admitted evidence, we
16
reverse the trial court’s judgment and remand the cause for a new trial.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Christopher. (Frost, J., Dissenting)
17