Opinion
NO. 01-15-00188-CV
03-29-2016
MARK F. HANKS, Appellant v. THE HUNTINGTON NATIONAL BANK, Appellee
On Appeal from the County Civil Court at Law No. 4 Harris County, Texas
Trial Court Case No. 1056196
MEMORANDUM OPINION
Appellee, The Huntington National Bank ("the Bank"), purchased the residence of appellant, Mark F. Hanks, at a non-judicial foreclosure sale. Nearly one year later, the Bank gave Hanks notice to vacate and filed a forcible detainer suit against him. Both the justice court and the county court at law found that the Bank had the superior right of possession and awarded possession of the property to the Bank. In three issues, Hanks contends that the trial court abused its discretion in (1) excluding evidence that, under the federal Protecting Tenants at Foreclosure Act of 2009 ("PTFA"), he was entitled to ninety days' notice to vacate the property; (2) refusing to allow him to make an offer of proof that he and the Bank had entered into an implied-in-fact lease agreement, thus entitling him to ninety days' notice under the PTFA; and (3) overruling his hearsay objection to the Bank's business records affidavit.
We affirm.
Background
Hanks purchased the subject property for use as his residence in 2004. At some point after this sale, the Bank became the mortgagee and servicer of the mortgage, and Hanks remained the mortgagor. On September 3, 2013, after Hanks had defaulted on his mortgage payments, the Bank conducted a non-judicial foreclosure sale and purchased the property. Hanks continued living at the property.
On September 25, 2014, the Bank mailed Hanks a notice demanding that he vacate the property. The notice informed Hanks that if he was not a tenant of the property, he had three days to vacate the property before a forcible detainer suit would be filed against him. The notice informed Hanks that if he was a tenant of the property, he had ninety days to vacate the property.
On October 20, 2014, the Bank filed a forcible detainer suit against Hanks in the justice court. The Bank alleged that it had provided the required statutory notice to Hanks and that it had complied with all conditions precedent. The Bank requested that it be awarded possession of the property.
After a hearing on November 25, 2014, the justice court entered a judgment in favor of the Bank, awarding it possession of the property. Hanks then appealed this decision to the county court at law for a trial de novo.
The county court held a bench trial over two days. The trial court admitted a copy of the substitute trustee's deed from the non-judicial foreclosure sale, as well as a copy of the original deed of trust signed by Hanks when he purchased the property. The deed of trust contained a section relating to default by Hanks and stated:
If the Property is sold pursuant to this Section 22, Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.
The Bank also offered Exhibit 3, copies of the notices to vacate that it sent to Hanks. This exhibit was accompanied by a business records affidavit prepared by a paralegal for a firm affiliated with the Bank's counsel. The affiant averred as follows:
My name is Sharon L. Vaughan, I am over the age of eighteen (18) years, have never been convicted of a felony, have personal knowledge of the facts contained in this Affidavit, and they are true and correct.Hanks objected to this exhibit on two grounds. He first objected "to the extent [the Bank is] contending Mr. Hanks received these" notices. When the trial court overruled this objection, Hanks' counsel then stated, "We would object to the hearsay contained." The trial court overruled this objection as well, stating, "It's a business records affidavit."
I am employed by BDF Holdings, LP, an affiliated service provider for the law firm of Barrett Daffin Frappier Turner & Engel LLP, ("BDFTE"), attorneys for plaintiff, The Huntington National Bank, as a paralegal and authorized to make this Affidavit on behalf of BDFTE. I have care, custody, and control of all records concerning the forcible entry and detainer proceeding and Mark F. Hanks; Jill D. Hanks and all Occupants of [the property], ("Defendants").
I am the custodian of the records of BDFTE. Attached are seventeen (17) pages of records from the forcible entry and detainer [suit] file against Defendants. These seventeen (17) pages of records are kept in the regular course of business, and it was in the regular course of business for an employee or representative of BDFTE, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached are the originals or exact duplicates of the original.
On September 25, 2014, a Notice to Vacate was forwarded by certified mail, return receipt requested, and regular mail, postage prepaid, to Mark F. Hanks; Jill D. Hanks and all Occupants of [the property] demanding that Defendants vacate the property within 3 dates or forcible detainer proceedings would be commenced against them and all other occupants. See Notices to Vacate marked as Exhibit "A" attached to this Affidavit.
Hanks testified that he continued residing at the property after the foreclosure sale in September 2013. Hanks attempted to testify that his and the Bank's post-foreclosure conduct created an implied-in-fact lease agreement that served as an affirmative defense to the Bank's right to forcibly evict Hanks without giving him the ninety days' notice to vacate the property to which a tenant is entitled under the PTFA. He further argued that, given the implied lease, the Bank's failure to give him ninety days' notice of the forcible detainer action was wrongful. His counsel had the following exchange with the trial court:
[Hanks' counsel]: The bank kept Mr. Hanks in the house expecting benefits of him being there. He continued to pay the bills. He did a substantial amount of repairs, caught leaks. It's more or less caretaker. Left him in there over a year, year and a half before—The trial court then adjourned for the day.
The Court: I can't go behind the foreclosure. So, please—
[Hanks' counsel]: I need—our argument—
The Court: No. You keep saying that. No.
[Hanks' counsel]: It's a—he wasn't given the 30 days to move out.
The Court: I can't go behind the sale. Do you understand? Can't take it to the court.
[Hanks' counsel]: I need to submit an offer of proof.
The Court: No, that's not what it related to, Mr. Paschal.
On the second day of trial, Hanks' counsel stated:
We are contending that Mr. Hanks was not given adequate notice of the—we were contending Mr. Hanks was not given 30 days' notice under the Texas Property Act (sic). My position is I'm prepared to make an offer of proof. [The Bank] kept Mr. Hanks in the house. In keeping him in the house, he continued to pay utilities.The trial court refused to let Hanks' counsel make an offer of proof concerning an implied-in-fact lease entered into after foreclosure. The Bank's counsel stated that there were "no pleadings to support any affirmative defenses of this sort" or any argument concerning the applicability of the PTFA. Hanks' counsel requested "a trial amendment to plead the affirmative defense" under the PTFA and an implied-in-fact lease. The trial court stated, "No notice. Denied."
Hanks' counsel again requested the opportunity to make an offer of proof, and the trial court again refused, noting that "the sole issue before us today is who has superior right to possession." Hanks' counsel stated:
[Hanks' counsel]: I want to put on the record you're denying me the opportunity to make an offer of proof.
The Court: I'm denying you the opportunity to go behind the deed that is a public record that is the last deed in time of this property because that is who has superior right to possession. We're not going to go behind that deed into any other actions that took place with regards to the foreclosure on the property;
the notice, the sale, any other side agreements, no, sir. That's not within my purview today.The trial court found that the Bank had the superior right of possession to the property and awarded possession of the property to the Bank. This appeal followed.
[Hanks' counsel]: So no offer of proof, Your Honor?
The Court: Sir, I'm finding that it is not relevant to the trier of fact. I'm—sole question before it. Thank you.
Exclusion of Evidence
In his first issue, Hanks contends that the trial court erred by excluding his evidence of an implied-in-fact lease agreement between him and the Bank that would have established that he was entitled to ninety days' notice to vacate the subject property under the PTFA. In his second issue, Hanks contends that the trial court erroneously refused to allow him to make an offer of proof concerning the evidence of an implied-in-fact lease between the Bank and himself. We address these issues together.
We review a trial court's evidentiary rulings for an abuse of discretion. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). A trial court abuses its discretion when it acts without reference to guiding rules or principles. See U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). Even if the trial court errs in admitting or excluding evidence, reversal is only appropriate if the error is harmful, that is, the error probably resulted in an improper judgment. Id.; McShane, 239 S.W.3d at 234; Interstate Northborough P'ship, 66 S.W.3d at 220. Typically, a successful challenge to the trial court's evidentiary ruling requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted. Interstate Northborough P'ship, 66 S.W.3d at 220. We ordinarily will not reverse a judgment because the trial court erroneously excluded evidence when the evidence in question is cumulative or not controlling on a material issue dispositive to the case. Id. In determining whether the excluded evidence probably resulted in the rendition of an improper judgment, we review the entire record. Id.; see also McShane, 239 S.W.3d at 234 ("We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted.").
To challenge the exclusion of evidence on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof. Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); see also TEX. R. EVID. 103(a), 61 TEX. B.J. 374, 374 (Tex. & Tex. Crim. App. 1998, amended 2015) (providing that, to preserve error in exclusion of evidence, error must affect substantial right of party, and party must inform court of substance of excluded evidence by offer of proof, unless substance was apparent from context). The trial court's refusal to permit an offer of proof is reversible error on a showing of harm. Fletcher, 57 S.W.3d at 607 (citing 4M Linen & Uniform Supply Co. v. W.P. Ballard & Co., 793 S.W.2d 320, 324 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (stating that predecessor to Rule 103 "is mandatory")); see also TEX. R. EVID. 103(b) ("The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.") (emphasis added).
Effective April 1, 2015, the Texas Supreme Court adopted amendments to the Texas Rules of Evidence. See 78 TEX. B.J. 42, 42 (Tex. 2015). The revisions to Rules 103, 801, 802, and 803(6) were stylistic and do not affect the substance of the rules. All further citations to the Rules of Evidence refer to the rules as they existed at the time of the parties' trial.
A forcible detainer action is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). "Judgment of possession in a forcible detainer action is not intended to be a final determination of whether the eviction is wrongful; rather, it is a determination of the right to immediate possession." Id. The only issue in a forcible detainer action is the right to possession of the premises. Geters v. Baytown Hous. Auth., 430 S.W.3d 578, 582 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Property Code Chapter 24 governs forcible detainer actions. Id. at 583; see TEX. PROP. CODE ANN. §§ 24.001-.011 (Vernon 2014 & Supp. 2015). Property Code section 24.002(a)(2) provides, "A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person . . . is a tenant at will or by sufferance . . . ." TEX. PROP. CODE ANN. § 24.002(a)(2) (Vernon 2014); Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013) (defining "tenant at will" as "a holdover tenant who 'holds possession with the landlord's consent but without fixed terms (as to duration or rent)'" and defining "tenant at sufferance" as "[a] tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant's interest has expired"). The landlord must make written demand for possession of the property and must comply with the statutory requirements of section 24.005 concerning the provision of notice to vacate before it may pursue a forcible detainer action. Geters, 430 S.W.3d at 584; see TEX. PROP. CODE ANN. § 24.002(b) ("The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Section 24.005.").
Property Code section 24.005 provides, among other requirements, that the landlord must give a tenant at will or tenant by sufferance at least three days' written notice to vacate before it files a forcible detainer suit. See TEX. PROP. CODE ANN. § 24.005(b) (Vernon Supp. 2015). Because forcible detainer is a statutory cause of action, a landlord must strictly comply with its requirements. Geters, 430 S.W.3d at 584. Proper notice is an element of a forcible detainer action. Id.
Here, the Bank foreclosed upon the property in September 2013, but Hanks continued living at the property for another year. The original deed of trust provided that if the property were sold at a foreclosure sale but Hanks did not surrender possession he would become a tenant at sufferance. On September 25, 2014, the Bank mailed a notice to vacate to Hanks. The Bank filed its original forcible detainer petition in the justice court on October 20, 2014. It alleged that it had made written demand on Hanks to vacate the premises and had sent a notice to vacate that complied with section 24.005. At trial, Hanks argued that, instead of the three days' notice to vacate that Property Code section 24.005(b) requires landlords to provide to tenants at will and tenants at sufferance, he was entitled to ninety days' notice to vacate pursuant to the PTFA because his and the Bank's post-foreclosure conduct established an implied-in-fact lease agreement. The Bank argued that Hanks had no written pleadings to support an affirmative defense of an implied-in-fact lease. When Hanks requested a trial amendment to plead this defense, the trial court denied the request, stating, "No notice." The trial court excluded Hanks' evidence pertaining to this implied lease agreement and refused to allow him to make an offer of proof concerning this evidence.
Texas Rule of Civil Procedure 63 provides that parties may amend their pleadings "by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party," but amended pleadings offered for filing within seven days of the date of trial shall be filed only with leave of court, "which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." TEX. R. CIV. P. 63. "The trial court has discretion to refuse [a trial] amendment if the opposing party presents evidence of surprise or prejudice, or if the amendment asserts a new cause of action or defense and the opposing party objects to the amendment." Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 574 (Tex. App.—Texarkana 1997, no writ); see also CA Partners v. Spears, 274 S.W.3d 51, 85 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (stating that trial court abuses its discretion in allowing trial amendment when opposing party presents evidence of surprise).
Hanks does not dispute that he did not raise the issue of an implied-in-fact lease agreement in any written pleading. The record reflects that Hanks did not raise this argument until trial. When Hanks attempted to present evidence of an implied-in-fact lease agreement at trial, the Bank objected to this evidence on the basis that Hanks' pleadings did not support this argument. Hanks then sought a trial amendment "to plead the affirmative defense" of an implied-in-fact lease, which the trial court denied on the basis that Hanks had provided "no notice" of this defense to the Bank. The record reflects that the Bank did not have notice of this implied-in-fact lease defense and that the Bank objected to Hanks presenting evidence of this defense. We therefore hold that the trial court did not err by refusing to allow Hanks to amend his pleadings during trial to assert the defense that he and the Bank had an implied-in-fact lease agreement. See TEX. R. CIV. P. 63; CA Partners, 274 S.W.3d at 85; Bekins Moving & Storage, 947 S.W.2d at 574.
Even assuming, without deciding, that the trial court erred in excluding Hanks' evidence of the implied-in-fact lease and refusing to allow him to make an offer of proof concerning his evidence, we conclude that the trial court's actions were not harmful. See TEX. R. APP. P. 44.1 (providing that error is harmful if it probably caused rendition of improper judgment or probably prevented appellant from properly presenting case to court of appeals); Waldrip, 380 S.W.3d at 132 (stating harm standard for reviewing trial court's evidentiary errors).
Hanks argues that his and the Bank's post-foreclosure conduct established an implied-in-fact lease agreement that transformed Hanks from a tenant at sufferance immediately post-foreclosure to a tenant at will, which entitled him to ninety days' notice to vacate the property under the PFTA. See ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 533 (Tex. App.—El Paso 1994, writ denied) (holding that although foreclosure ends existing landlord-tenant relationship between tenant and original mortgagor, it does not preclude tenant from entering into new landlord-tenant relationship with purchaser at foreclosure sale, and courts may imply such agreement based on conduct of parties); see also Coinmach, 417 S.W.3d at 916 (citing ICM Mortg. Corp. approvingly and stating, "[A]n implied agreement to create a new lease using the terms of the prior lease may arise [after foreclosure] if both parties engage in conduct that manifests such intent").
The Bank responds that the plain language of the PTFA renders it inapplicable to Hanks, and, therefore, even if the trial court had allowed him to present evidence that he had an implied-in-fact lease agreement with the Bank, the PTFA would not entitle him to ninety days' notice to vacate, and the trial court properly awarded possession to the Bank. We agree with the Bank.
The PTFA provides:
(a) In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to—
(1) the provision, by such successor in interest[,] of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure—
(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser
who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or
(B) without a lease or with a lease terminable at will under state law, subject to the receipt by the tenant of the 90 day notice under subsection (1),
Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, § 702, 123 Stat. 1632, 1660-61 (2009). The PTFA further defines "bona fide lease or tenancy," specifying that "a lease or tenancy shall be considered bona fide only if . . . the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant." Id. at 1661; Fontaine v. Deutsche Bank Nat'l Trust Co., 372 S.W.3d 257, 260 (Tex. App.—Dallas 2012, pet. dism'd w.o.j.) (noting that PTFA defines "bona fide lease or tenancy" as one where "the tenant is not the mortgagor or the mortgagor's spouse, parent, or child").except that nothing under this section shall affect the requirements for termination of any federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants.
It is undisputed that Hanks, the tenant on the property at the time the Bank mailed its notice to vacate, was also the mortgagor whose mortgage had been foreclosed upon by the Bank. As the mortgagor, he does not qualify as a "bona fide tenant" under the PTFA, and the PTFA is therefore not applicable to him. See Protecting Tenants at Foreclosure Act of 2009, 123 Stat. at 1660-61; Fontaine, 372 S.W.3d at 260. As the mortgagor, Hanks had received notice of the foreclosure proceedings, and he was not entitled to the expanded ninety days' notice period, which was designed to assist residential tenants not directly related to the mortgagor who were unaware that the property on which they resided had entered foreclosure. Thus, Hanks, as the mortgagor, could not qualify as a bona fide tenant under the PTFA and could not take advantage of the PTFA's requirement of a ninety-day notice period to vacate prior to bringing a forcible detainer action. We conclude that the applicable notice-to-vacate time period is section 24.005(b)'s three-day notice period for tenants at will and tenants at sufferance, and not the notice period applicable to non-mortgagors who remain as tenants after a foreclosure. See TEX. PROP. CODE ANN. § 24.005(b). Hanks undisputedly received at least three days' notice to vacate before the Bank filed its forcible detainer suit in the justice court.
The Department of Housing and Urban Development ("HUD") published a notice in the Federal Register concerning the PTFA. In this notice, HUD stated the rationale behind the PTFA:
With the unprecedented number of foreclosures occurring across the country, it became increasingly evident that not only were homeowners the victims of the downturn in the economy, but tenants residing in residential properties were also victims of the foreclosure crisis. All too often, tenants were caught unaware that the residential property in which they reside[d] was being foreclosed and were given little notice of the need to vacate the property. The objective of these new tenant protections is to ensure that tenants receive appropriate notice of foreclosure and are not abruptly displaced.
We overrule Hanks' first and second issues.
Hearsay Objection
Finally, in his third issue, Hanks contends that the trial court erroneously overruled his hearsay objection to the Bank's business records affidavit that accompanied its offer of the notice to vacate that it sent to Hanks. He argues on appeal that the affidavit was prepared by a paralegal who did not possess personal knowledge of all the facts set out in the affidavit and that the affidavit included inadmissible "hearsay within hearsay."
Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing that a party offers in evidence to prove the truth of the matter asserted in the statement. See TEX. R. EVID. 801(d), 61 TEX. B.J. at 393. Hearsay is not admissible in evidence unless a statute, the Rules of Evidence, or other rules provide otherwise. TEX. R. EVID. 802, 61 TEX. B.J. at 393. One exception to the hearsay rule is for business records. See TEX. R. EVID. 803(6), 61 TEX. B.J. at 394. The proponent of business records must demonstrate:
(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 make the records; (3) the records were made at or near the time of the event that they record; and (4) the records were made by a person with knowledge who was acting in the regular course of business.In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); see TEX. R. EVID. 803(6) (providing that above conditions may be shown "by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10)"); TEX. R. EVID. 902(10), 61 TEX. B.J. at 398 (setting out form of affidavit to accompany business records).
To preserve a complaint that an affidavit does not show the basis of the affiant's personal knowledge, a litigant must object in the trial court and obtain a ruling on the objection. Wash. DC Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Mekeel v. U.S. Bank N.A., 355 S.W.3d 349, 357 (Tex. App.—El Paso 2011, pet. dism'd) ("An objection that an affidavit is not based on personal knowledge is an objection to a defect in form. As a prerequisite to presenting a complaint for appellate review, such an objection must be timely and specifically raised, and a ruling obtained."); Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 490 n.7 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that objection that affidavit was not based on personal knowledge is objection to form and complaining party must receive ruling on objection to preserve error). "If any part of a piece of evidence is admissible, a blanket hearsay objection that does not identify which parts contain hearsay is not enough; rather, the objecting party must make specific objections to each component part of a particular piece of evidence to preserve error on appeal." Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 797 (Tex. App.—Dallas 2013, no pet.); Flores v. City of Liberty, 318 S.W.3d 551, 560 (Tex. App.—Beaumont 2010, no pet.) (holding that blanket "hearsay within hearsay" trial objection that did not identify specific part of each statement that contained hearsay was not sufficiently specific to preserve error). Absent a specific objection, the complaining party waives any argument concerning the improper admission of the evidence. Stovall & Assocs., 409 S.W.3d at 797.
Here, the Bank introduced Exhibit 3, which consisted of copies of the notice to vacate mailed to Hanks. Exhibit 3 was accompanied by a business records affidavit from Sharon Vaughan, who identified herself as a paralegal for a company affiliated with the Bank's law firm. Hanks' counsel objected to this exhibit, first "to the extent [the Bank is] contending Mr. Hanks received these [notices]" and then "to the hearsay contained." On appeal, Hanks argues, "While the business record in general may be subject to a hearsay exception, the 'hearsay within hearsay' attested to in the affidavit should not have been admitted into evidence." Hanks does not, in his appellate brief, identify any particular statements that constitute inadmissible "hearsay within hearsay." Hanks' counsel did not specify at trial any particular portion of Exhibit 3 that he believed constituted inadmissible hearsay. We hold that Hanks' general hearsay objection to Exhibit 3 was not sufficiently specific to preserve his appellate complaint that the attached business records affidavit contained "hearsay within hearsay." See id.; Flores, 318 S.W.3d at 560. Moreover, even if he had preserved this complaint, business records are an exception to the hearsay rule. See TEX. R. EVID. 803(6).
To the extent Hanks contends on appeal that the business records affidavit was inadmissible because the affiant, Sharon Vaughan, did not have personal knowledge of the facts contained within the affidavit, we hold that Hanks failed to preserve this complaint for appellate review because he did not object on this basis in the trial court and obtain a ruling on the objection. See Clarendon Nat'l Ins. Co., 199 S.W.3d at 490 n.7. And even if he had preserved the alleged error, we hold that the business records affidavit here satisfied the requirements for showing the admissibility of business records. See TEX. R. EVID. 902(10); In re E.A.K., 192 S.W.3d at 141.
We overrule Hanks' third issue.
Conclusion
We affirm the judgment of the trial court. All pending motions are dismissed as moot.
Evelyn V. Keyes
Justice Panel consists of Justices Jennings, Keyes, and Bland.
Protecting Tenants at Foreclosure: Notice of Responsibilities Placed on Immediate Successors in Interest Pursuant to Foreclosure of Residential Property, 74 Fed. Reg. 30106-02 (June 24, 2009).