In Depth: ASSET LIQUIDATION GROUP V. DANTE WADSWORTH (Issued August 16, 2016)

This cases involves an appeal from a suit to recover an unpaid debt. The trial court ruled that the business records offered as evidence were inadmissible and the trial court entered judgment that appellant Asset Liquidation Group (“ALG”) take nothing on its claim. In a single issue on appeal, ALG argued that its business-records affidavit was sufficient pursuant to T.R.E. Rule 902(10) and the trial court erred by excluding the evidence. The appellate court reversed the trial court and held that the business-records affidavit satisfied the rules of evidence and the exclusion of the documentation prevented ALG from presenting its case.

ALG filed a business-records affidavit, attempting to lay a foundation to admit records to show that Wadsworth’s account had been assigned to it and the amount of money that was owed. The affidavit was signed by Faunce on behalf of ALG, but the jurat was struck through, and the words “see attached” were handwritten beneath it. The attachment was a form “California All-Purpose Certificate of Acknowledgment.” When the case was called to trial, ALG offered its business records into evidence along with Faunce’s business-records affidavit. Wadsworth objected on the basis that it failed to “meet the predicate of Rule 902(10)” of the Texas Rules of Evidence. In particular, Wadsworth’s counsel argued that the affidavit did not indicate that Faunce, as the affiant, was testifying under penalty of perjury or that he had been sworn. The trial judge stated: “All this piece of paper says is that they signed—they signed it but there’s nothing about this where they are swearing that that was true and correct. I think he is right.” Wadsworth’s attorney replied that he did not prepare the documents, he thought the affidavit looked “fine,” and “Mr. Faunce has sworn to the affidavit as true and correct on the penalty of perjury.” The trial court disagreed, and it sustained the objection that the affidavit was defective. The judge explained: “I don’t see anything in there where this has Mr. Faunce swear that what he is signing is true and correct because you have crossed that out. . . . This doesn’t say it was sworn to. I think that is a substantial defect.” Although Wadsworth’s attorney asked for a “reset” to obtain a new affidavit, the court denied the request and granted a take-nothing judgment in Wadsworth’s favor.

The statutory requirements for an affidavit are found in the Government Code, which defines an affidavit as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” TEX. GOV’T CODE § 312.011(1); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645–46 (Tex. 1995). “A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer.” Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 316 (Tex. 2012). Often an affidavit will include a jurat as proof of compliance with statutory requirements to be made under oath and before an authorized officer. Id. at 316–17. But a jurat is not a statutory requirement of an affidavit. Id. at 316. To meet the requirements of the Government Code, the record must contain some evidence that the purported affidavit was sworn to by the affiant before an authorized officer. Id. at 317. If it does not, the written statement is not an affidavit. Id. 

The business-records affidavit proffered at trial by ALG was a written statement of facts signed by Faunce. Paragraph 1 of the affidavit stated: “Before me, the undersigned authority, personally appeared Stephen Faunce, who, being by me duly sworn, deposed as follows . . . .” As in Petroleum Analyzer and Norcross, this language is evidence that Faunce was sworn. Attached as part of the business-records affidavit was a one-page form California All-Purpose Certificate of Acknowledgement. That page was signed by Dawn Dacy, as notary public. Under the California Code of Civil Procedure, a notary public is authorized by law to administer oaths. CAL. CIV. PROC. CODE § 2093. Dacy signed the acknowledgment under penalty of perjury and affixed her notarial seal to it. Thus the affidavit was sworn before an officer authorized to administer oaths, and officially certified by the officer under her seal of office. See TEX. GOV’T CODE § 312.011(1).

The Court reversed for the erroneous exclusion of evidence since the appellant showed that the error probably caused the rendition of an improper judgment. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). If erroneously excluded evidence was crucial to a key issue, the error likely was harmful. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008). The excluded business records were crucial to the central issue in this case—the alleged breach of contract and amount of money Wadsworth allegedly owed. Immediately after concluding that the affidavit was defective and refusing to allow for a new one to be obtained, the trial court announced her intention to grant a take-nothing judgment in favor of Wadsworth. Thus, ALG was prevented from introducing any other evidence.

Wadsworth further argued that ALG waived error by failing to make an offer of proof of the excluded evidence. Specifically, he contended that there was a lack of proof that the notary actually “swore the affiant in” or that “the notary even certified the affiant’s oath.” This argument misconstrues what is required to make an offer of proof. “A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” TEX. R. EVID. 103(a)(2). The proof that Wadsworth suggests was lacking related to the mechanics of preparing a self-authenicating business-records affidavit, not “the substance” of the excluded evidence. As discussed above, the complete substance of the excluded evidence at issue had been filed with the trial court before trial, and its content was readily apparent from context.

The Court of Appeals concluded that the affidavit was sworn, and in light of that holding, further held that the erroneous exclusion of the evidence in this case was harmful error and reversed the trial court.

You can read the full opinion by clicking here.

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