Kyani, Inc., Todd Thompson, Scott Boulch, Volker Hartzsch A/K/A Mark Davenport, Brandon Stevens, and James Bradford v. HD Walz II Enterprises, Inc. ( 2018 )

Concurring Opinion Filed July 24, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00486-CV
KYӒNI, INC., TODD THOMPSON, SCOTT BOULCH, VOLKER HARTZSCH A/K/A
MARK DAVENPORT, BRANDON STEVENS, AND JAMES BRADFORD, Appellants
V.
HD WALZ II ENTERPRISES, INC., Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-07637
CONCURRING OPINION
Before Justices Francis, Evans, and Boatright
Concurring Opinion by Justice Evans
I agree with and join in the judgment and opinion of the majority, except as to the reasoning
regarding HD Walz II Enterprises, Inc.’s objections to authenticity. As to authenticity, I concur in
the majority opinion’s result but for these reasons.
First, authenticity is a form objection that is not preserved if a ruling is not obtained. See
In re B.N.L.-B., 375 S.W.3d 557, 566 (Tex. App.—Dallas 2012, no pet.); SSP Partners v.
Gladstrong Invs. (USA) Corp., 169 S.W.3d 27, 34 (Tex. App.—Corpus Christi 2005), aff’d on
other grounds, 275 S.W.3d 444 (Tex. 2008). “Rule 33.1(a) requires a timely and ruled-upon
objection to preserve error.” Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 WL 3189568, at *3
(Tex. June 29, 2018) (per curiam) (citing TEX. R. APP. P. 33.1(a)). There is no written ruling in
this record nor anything that clearly implies a ruling by the trial court on Walz’s authenticity
objections. See Seim, 2018 WL 3189568, at *4 (citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003)). Because Walz’s authenticity objection was not preserved, there is no trial court ruling for
us to review; that is, nothing for us to decide.1
Second, if we were to decide the merits of Walz’s authenticity objection, I would decide
the records were authenticated as business records. We review a trial court’s ruling on the
admissibility of evidence for an abuse of discretion. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d
221, 235 (Tex. 2011). A trial court abuses its discretion when it rules without regard for any
guiding rules or principles. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998). Although appellants did not argue the applicability of Texas Rule of Evidence
902(10), it is appellee Walz that complains about the trial court’s failure to sustain its evidentiary
objections. So we are not limited to appellants’ arguments because we must uphold the trial court’s
evidentiary ruling if there is any legitimate basis in the record for the ruling. Id.
Business records are admissible in evidence pursuant to rule 803(6) and are self-
authenticated when accompanied by an affidavit in the form of, and served in accordance with,
rule 902(10). See TEX. R. EVID. 803(6), 902(10); Lyons v. Deutsche Bank Nat’l Tr. Co., No. 05-
16-00607-CV, 2017 WL 817143, at *1 (Tex. App.—Dallas Mar. 2, 2017, pet. denied) (mem. op.)
(“[B]usiness records accompanied by an affidavit meeting the requirements of evidence rule
902(10) are self-authenticating.”). The record reflects that appellants served Walz more than
fourteen days before the hearing on the motion to compel arbitration with their amended motion
to compel arbitration that attached Joshua K. Chandler’s affidavit, thus the service complied with
1
Our Court has decided, “A complete absence of authentication is a defect of substance that is not waived by a
party failing to object and may be urged for the first time on appeal.” Blanche v. First Nationwide Mortg. Corp., 74
S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (citing Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex. App.—Corpus
Christi 1990, no writ)). Here, Walz complains only that there are various inadequacies in the authenticity proof in
Chandler’s affidavit, not that there is a complete absence of authenticity evidence. In addition, the majority’s and my
resolution of the authenticity issue demonstrates there was evidence of authenticity in the record. So, there is not a
complete absence of authentication in the record; therefore, the defect complained of is one of form, not substance.
Accordingly, Blanche does not apply.
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rule 902(10)(A). As paragraphs three through seven of Chandler’s affidavit track the substance
and form of rule 902(10)(B)1-6, the “affidavit is sufficient” as a matter of law. TEX. R. EVID.
902(10)(B) (“An affidavit is sufficient if it includes the following language, but this form is not
exclusive.”). Therefore, after the majority’s resolution of Walz’s objections to Chandler’s personal
knowledge and the specific objection to the date of Exhibit K, I would conclude that to the extent
it impliedly ruled on the issue, the trial court did not abuse its discretion by rejecting Walz’s
authenticity objection because Chandler’s affidavit properly authenticated the documents pursuant
to rule 902(10) as business records.
For these reasons, I agree with and join in the judgment and opinion of the majority, except
as to the reasoning regarding Walz’s objections to authenticity with which I can only concur.
/David Evans/
DAVID EVANS
JUSTICE
170486CF.P05
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