### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00080- CV

Charles Ryan Erm isch and Julie A. Erm isch, App ellants

v. HSB C Bank

USA, National Association, as Trus tee for Deutsche Alt- A Securitie s Mort gage Loan Trust, Series 2007-1, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 15- 0063 10, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this forc ible-deta iner acti o n , C h arle s and J ulie Ermisch appea l the trial court’s final judgme nt gra nting possession to HSBC Ba nk. Appellants asser

t that the trial court err ed by admitting a business-re cords aff idavit and acc ompany ing evidenc e in g ranting HSBC’s motion for
summary judgme nt beca

use the rec ords custodian, Sharon Vaug hn, qualified her aff idavit statement that the fac ts wer e true and corr ect with the phrase “to the best of my knowledg e and belief.” HSBC responds that the Ermisches waived this challenge b ec au s e t hey did not secur e a ruling from the trial court on their objection and that the bus i n es s -records aff idavit was sufficie nt under
Texas Rule of Evidence 902(10)( b). For the rea sons discussed below, we will aff irm the judgme nt of the trial c ourt.Background 1
Charles and J ulie Ermisch purcha sed the proper ty at issue on May 4, 2007, at which time they executed a promissory note and deed of trust. The deed of trust was assig ned to HSBC in 2011, and HSBC purcha sed the proper ty afte r a fore closure sale in 2012. After sending a notice to

vacate to the Ermisches, HSBC broug ht this forc ible-deta iner suit to seek possession of the proper ty

. The justice court g rante d HSBC possession, and the Ermisches appea led to the county court at law.
HSBC filed a traditional motion for summary judgme nt, which attache d a business-re cords aff idavit by rec ords custod i an S h aron Vaug hn authentica ting four documents: the deed of trust, the assig nment of the deed o f t rust to HSBC, HSBC’s substitut e trustee’ s deed, and the notice to

vacate sent to the Ermisches. Vaug hn’s aff idavit stated, in rele vant part, that she “ha[d] persona l knowledg e of the fac ts contained in this Aff i d avit, and they are true and corr ect to the best of my knowledg e and belief.” The Ermisches objected to Vaug hn’s business-re cords aff idavit, stating that the aff idavit was insufficient beca use she swore that the fac ts wer e only “true and corr ect to the best of [her] knowledg e and belief,” rathe r than stating they wer e true and corr ect. The trial court g rante d
HSBC’s motion for summary judgme nt on November 24, 2015, but it did n o t ex p l i ci t l y rule on or addr ess the Ermische s’ objection. The Ermisches f iled a mot ion for new

trial, raisingthe same objection to Vaug hn’s aff idavit. The Ermisches’ motion for a new trial was overr uled by opera tion of law, a nd this appeal followe d.

The fac ts a

re well known to the par

ties, and we there fore will not recite them in deta il in 1 this opinion. See Tex. R. App. P. 47.1 (appe llate court opinions should be as “brie f as prac ticable” ), 47.4 (memora

ndum opinions should be “no longe r than nece ssary to advise the parties of the court’s decision and the basic re asons for it”)

. 2Discussion
I n their sole issue, the Ermisches claim the trial court err ed by considering Sharon Vaug hn’s business-re cords aff idavit and the attache d business rec ords in g ranting HSBC’s motion for summary judgme nt. Specifica lly , the Ermische s challeng e the Vaug hn aff idavit on the
g rounds that i t d i d n o t u nequivoca lly state that the fac ts wer e true and corr ect, and there fore the business rec ords attache d wer e inadmissible. HSBC responds that the Ermisches waived this issue 2 by failing to obtain a ruling on the objection in the trial court and, alterna tively , that Vaug hn’s aff idavit was sufficie nt to authentica te the rec ords because it stated it was based on persona l knowledg e, set out her role as a rec ords custodian, and substantially complied with the require ments of Texas Rule of Evidenc e 902(10) (b).

The Ermisches’ i ssue is essentially a complaint that the trial court abused its discretion in fa iling to exclude the business rec ords attache d to V aug hn’s af fidavit as hea

rsay . To
prese rve this complaint for appellate revie w, the Ermisches wer e require d to obtain a ruling on their objection. See, e.g. , Grand Prairie Indep. Sch. Dist. v. Vaughan , 792 S.W .2d 944, 945 (Tex. 1990) (per curia m); Inve

stment Retriever

s , In c. v. Fisher , No. 03-13-00510- CV, 2015 WL 3918503,

We note that of the four documents attache d to t h e b u s i n es s -records aff idavit, three of 2 them (the deed of trust, assig nment, and substitut e trustee’ s deed) wer e self-a uthenticating under the rul es of evidenc e because they wer e notariz ed documents and official publ ic records. Tex. R. Evid. 902(4), (8); Tower v. Bank of Am., N.A

. , No. 03-14-00404- CV, 2015 WL 4508687, at *2 (Tex. App.—Austin J uly 22, 2015, no pet.) (mem. op.) (copie s of notarized mortg ag e rec ords are self-a uthenticating under Rule 902(8)) ; Murphy v. Countrywide Home Loans, Inc. , 199 S.W .3d 441, 446 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (copie s of m ortg ag e records f i le-stamped to show they we re fi led in county proper ty rec ords are self-a

uthenticating under Rule 902(4))

. Acc ording ly , the only document that actua lly neede d to be authentica ted by Vaug hn to be admissible was the notice to vaca

te. 3at *4–5 (Tex. App.—Austin J une 25, 2015, no pet.) (mem. op.); Sprayberry v. Siesta MHC Incom e

Partners, L.P. , No. 03-08-00649- CV, 2010 WL 1404598, at *2–4 (Tex. App.—Austin Apr. 8, 2010,

no pet.) (mem. op.); Stewart v. Sanmina Tex. L.P. , 156 S.W .3d 198, 207 (Tex. App.—Dallas 2005, no pet.); see also Tex. R. Civ. P. 166a(f ); Tex. R. App. P. 33.1( a)( 2). The rec ord does not contain

an y ruling by the t rial court on their obj ection, nor is there any indication that the t rial court rul ed

on the objection in the final judgme nt. Consequently , the Ermisches failed to prese rve the objection for appellate revie w. Tex. R. App. P. 33.1(a) (2)( A); see W ell Sols., Inc. v. Stafford , 32 S.W .3d 313,
317 (Tex. App.—San Antonio 2000, no pet.) (“A t rial court’s ruling on an objection to summary judgme nt evidenc e is not implicit in its ruling on the motion for summary judgme nt

. . . .”); see also Hogan v. J. Higgins Trucking, Inc. , 197 S.W .3d 879, 883 (Tex. App.—Dallas 2006, no pet.) (“[F]or there to be an impli cit ruling on an objec tion to summary -judg ment evidenc e, there m ust be som e indication that the trial court ruled on the objection in the rec ord or in the summary judgme nt itself,

o t h er than the mere g ranting of the summary judgme nt.” (citing Broadnax v. Kroger Tex., L.P. , No. 05-04-01306- CV, 2005 WL 2031783, at * 1

– 2 (Tex. App.—Dallas Aug

. 24, 2005, no pet.) (mem. op.); SSP Partners v. Gladstrong Invs. ( USA) Corp. , 169 S.W .3d 27, 34 (Tex. App.—Corpus Christi 2005), aff’d , 275 S.W .3d 444 (Tex. 2008))). 3

The rec ord does not show that the Ermisches complained to the trial court about the lack 3 of ruling on their objection to the Vaug hn aff idavit. The Ermisches fi l ed a motion for new trial reur g ing their objection to the aff idavit, but they did not object to the court’s failure to rule. Simpl y restating the orig inal objection i s not sufficient to pre serve this iss ue on appe al. See Tex. R. App. P. 33.1(a) (2)( B) (complaining party must object to ref usal to rule); Alejandro v. Bell , 84 S.W .3d 383, 388 (Tex. App.—Corpus Christi 2002, no pet.). 4Howeve r, to the extent the Ermisches’ complaint g oe s to th e c o mp e te nce of Vaug hn’s

testimony and could be raised for the first time on appea l, we conclude that it is without merit. We 4
revie w a trial court’s ruling conce rning the admi ssion of summary -judg ment evidenc e under

an abuse of discretion standard. See Fairfield Fin. Grp., Inc. v. Synnott , 300 S.W .3d 316, 319 (Tex. App.—Austin 2009, no pet.); see also In re J.P.B. , 180 S.W .3d 570, 575 (Tex. 2005). An abuse of discretion o cc urs when the court’s decision is made without ref ere nce to any g uiding rules and principles or is arbitra ry or unrea sonable. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985)

. We must uphold the trial court’s evidentiar y ruling if there is any leg itimate basis for it. See Owens–Corning Fiberglass Corp. v. Malone , 972 S.W .2d 35, 43 (Te x . 1 998); Rodriguez v. Citi mortgage, Inc. , No. 03-10-00093- CV, 2011 WL 182122, at *4 (Tex. App.—Austin J an. 6, 2011, no pet.) (mem. op.).

The Ermisches asser

t that Vaug hn’s testimony reg arding HSBC’s law firm’s rec ordkeeping p r o c e d

u r e s w a s in c o mp e te n

t s u mm a r y - ju d g me nt evidenc e beca

use it failed to formally rec ite that the fac ts wer e “true and corr ect.” I n order t o b e competent summary -judg ment evidenc e, an af fi d avit “shall be made on persona l knowledg e, shall set forth such fac ts as would be admiss i b l e in evidenc e, and shall show aff irmatively that the aff

iant is competent to testify to the matters stated there in.” Tex. R. Civ. P. 166(f) ; see Rodriguez v. Citi bank, N.A. , No. 04-12-00777- CV, 2013 WL 4682194, at *2 (Tex. A

pp.—San Antonio A ug . 30, 2013, no pet.) (mem. op.) (“[T]he r equire ment of persona l knowledg e is satisfied when an aff iant identifies the position he holds and descr ibes his

See Sprayberry v. Si est a MHC Incom e Partners, L.P. , No. 03-08-00649- CV, 2010 WL 4 1404598, at *2–4 (Te x . App.—Austin Apr. 8, 2010, no pet.) (mem. op.). 5job re sponsibili ties so that one can rea sonably assume he would be particula rly situated to have
persona l knowledg e of the fac ts within his aff idavit.”); Rock

wall Commons Assocs., L t d

. v. MRC Mortg. Grantor Trust I

, 331 S.W .3d 500, 510–11 (Tex. App.—El Paso 2010, no pet.). The rules of evidenc e do not require that the witness who lay s the predic ate for the admission of business rec ords be their cre ator or have personal knowledg e of the contents of t he records; the witness is require d only to have pe rsonal knowledg e of how the records are kept. See Tex. R. Evid. 803(6), 902(10);
In re E.A.K. , 192 S.W .3d 133, 142 (Tex. App.—Houston [14th Dis t.] 2006, pet. denied); see also Rodriguez , 2011 WL 182122, at *4–5 (citing E.A.K. , 192 S.W .3d at 142); Kyle v. Countrywide Home
Lo a n s , I n c
. , 2 3 2 S. W.3d 355, 359 (Tex. App.—Dallas 2007, pet. denied) (holding aff iant’s testimony that she was fore closure specia list and custodian of rec ords for mortg ag ee with respe ct to mortg ag or’s loan w as suffic ient to satisfy persona l knowledg e re quirement of Rule 166a (f) ). Vaug hn’s af

fidavit expli citly

states t hat s he has “per sonal knowledg e of the fac ts,” and she further demonstrates her persona l knowledg e of those fac ts in her testimony

. I n the aff idavit, Vaug hn testified that in her role as a para leg al and custodian of rec ords, she had “ca re, custody , and control of all rec ords conce rning the forc ible entry and detainer proce eding ag ainst [t he Ermisches].” She further descr ibed how rec ords are made and kept on behalf of HSBC’s law firm. Vaug hn then identified the attachme nts as orig inals or exact copies of HSBC’s rec ords and proved them u p as business rec ords. 5

The Ermisches note that Vaug hn made a ty pog raphic al err or i n t h at the aff idavit stated 5 63 pag es wer e attached, b u t o n l y 6 1 pag es wer e actua lly attache d. Howeve r, this sort of ty pog raphic al err or, acknow ledg ed by HSBC in the summary -judg ment hear ing, does not aff ect the admissibili ty of the aff

idavit. See Adams v. State , 985 S.W .2d 582, 584 (Tex. App.—Eastland 1998, pet. ref ’d) (holding that trial court did not abuse its dis cr et i o n in admitting medical rec ords even 6The Ermisches rely primarily on the g ener al rule that summary -judg ment testimony

offe red s o lely on “the best of [an aff iant’s] knowledg e and belief” is not competent summary judgme nt evidenc e. Howeve r, unlike summary -judg ment aff idavits offe red to prove up elements of

a cause of action or defe nse, Vaug hn’s aff idavit is a business-re cords aff idavit. Rule 902(10)( b) sets
out a form of aff

idavit for use when business reco rd s ar e i n troduce d under Rule 803(6) and also specific ally states that the form is not exclusive. Tex. R. Evid. 902(10)( b). Vaug hn’s aff idavit complied with the require ments under Rules 90 2 (1 0)(b) and 803(6)—she was not require d to

rec ite the exact words that appea r in the rule nor was she re q u i re d t o s t ate that all fac ts in the aff idavit are “true and corr ect.” See id. ; Kyle , 232 S.W .3d at 360–6 1 (holding business-re cords af fi davit competent without statement that all fac ts wer e “true and corr ect” beca use aff idav i t substantially complied with Rule 902(10)( b)); Fede ral Fin. Co. v. Delgado , 1 S.W .3d 181, 184 (Tex. A pp.—Corpus Christi 1999, no pet.) (“[W] here the aff idavit doe s not spe cifica lly rec ite that the fac ts set forth there are true, but does set out that it is b ased on persona l knowledg e and is subscribed to and sworn befor e a notary public, it is not defe ctive if, when considere d in its entirety , its obvious eff

ect is that the aff

iant is repr esenting that the fac ts stated there in are true and corr ect.” ). Reading the aff

idavit as a whole, we conclude that the tr i al court could have

rea sonably deter

mined that Vaug hn’s af

fidavit demonstrate d she was testify ing based on persona l knowledg e and the “obvious eff ect” of her testimony reg arding her role as custodian of rec ords was

though aff

idavits misstated number of pag es contained in rec ords beca use “[w]hether the aff

idavits are inacc urate or whether there are pag es missing from the medical rec ords should aff ect the weig ht to be g iven the evidenc e not the admissibil i t y ”); see also Ramos v. Texas Dep’ t of Pub. Safety , No. 04-05-00389- CV, 2006 WL 467969, at *2 (Tex. App.—San Antonio M ar . 1 , 2006, no pet.) (mem. op.). 7that her statements wer e true and corr ect. Delgado , 1 S

. W

. 3d at 184; see Vaughan , 792 S.W .2d

at 945 (holding that it wa s “cle ar from rea ding the entire aff idavit” that aff

iant was testify

ing f rom
persona l knowledg e). As such, the trial court did not abuse its discretion in admitting the aff idavit
as compe tent summary -judg ment evidenc e.

We overrule the Ermische s’ sole issue.

Conclusion Having overr

uled the Ermisches’ sole issue, we aff irm the judgme nt of the trial court.

__________________________________________ J eff Rose, Chief J ustice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land
Affir med Filed: Nove mber 4, 2016

8