15-Year ‘Course of Dealing’ Clarifies Oral Agreement for Tax Sale Notices – IL First Dist.

The would-be tax deed buyer in Wheeler Financial, Inc. v. Law Publishing Co., 2018 IL App (1st) 171495 claimed the publisher defendant’s erroneous sale date in a required tax sale notice thwarted its purchase of a pricey Chicago property.

A jury found for the publisher defendant on the buyer’s breach of oral contract claim since the plaintiff failed to properly vet the draft “Take Notice” (the statutory notice provided by a tax deed applicant that gives notice to the owner) supplied by the defendant before publication. The plaintiff appealed.

Affirming the jury verdict, the First District discusses the nature of express versus implied contracts, the use of non-pattern jury instructions and when course of dealing evidence is admissible to explain the terms of an oral agreement.

Course of dealing – Generally

There was no formal written contract between the parties. But there was a 15-year business relationship where the plaintiff would send draft tax deed petition notices to the defendant who would in turn, publish the notices as required by the Illinois tax code. This decade-and-a-half course of dealing was the basis for jury verdict for the publisher defendant.

Section 223 of the Restatement (Second) of Contracts defines a course of dealing as a sequence of previous conduct between parties to an agreement “which is fairly regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.”

A course of dealing “gives meaning to or supplements or qualifies their agreement” and can be considered when determining the terms of an oral contract. Where contract terms are uncertain or doubtful and the parties have – by their conduct – placed a construction on the agreement that is reasonable, such a construction will be adopted by the court. [¶ ¶ 77-78]

Course of Dealing – The Evidence

Here, the course of dealing proof was found in both trial testimony and documents admitted in evidence.

At trial, current and former employees of the publisher defendant and plaintiff’s agent all testified it was the parties’ common practice for defendant to first provide draft Take Notices to plaintiff for its review and approval prior to publication. E-mails introduced in evidence at trial corroborated this practice.

In addition, plaintiff’s affiliated tax lien company’s own handbook contained a published policy of plaintiff reviewing all Take Notices for accuracy before the notices were published. [¶¶ 35, 83-85]

The appeals court agreed with the jury that the defendant sufficiently proved the parties course of dealing was that defendant would give plaintiff a chance to review the Take Notices before publication. And since the plaintiff failed to adhere to its contractual obligation to review and apprise the defendant of any notice errors, plaintiff could not win on its breach of contract claim. (This is because a breach of contract plaintiff’s prior material breach precludes it from recovering on a breach of contract claim.)

Jury Instructions and A Tacit Exculpatory Clause?

Since no Illinois pattern jury instruction defines “course of dealing,” the trial court instructed the jury based on Wald v. Chicago Shippers Ass’n’s (175 Ill.App.3d 607 (1988) statement that a prior course of dealing can define or qualify an uncertain oral agreement. [¶ 96] Since Wald accurately stated Illinois law on the essence and reach of course of dealing evidence, it was proper for the jury to consider the non-pattern jury instruction.

The court then rejected plaintiff’s argument that allowing the legal publisher to avoid liability was tantamount to creating an implied exculpatory clause. The plaintiff claimed that if the publisher could avoid liability for its erroneous notice date, the parties’ agreement was illusory since it allowed the defendant to breach with impunity.

The court disagreed. It held that the parties’ course of dealing created mutual obligations on the parties: plaintiff was obligated to review defendant’s Take Notices and advise of any errors while defendant was required to republish any corrected notices for free. These reciprocal duties placed enforceable obligations on the parties.

Afterwords:

Where specifics of an oral agreement are lacking, but the parties’ actions over time plainly recognize and validate a business relationship, a court will consider course of dealing evidence to give content to the arrangement.
Where course of dealing evidence establishes that a breach of contract plaintiff has assumed certain obligations, the plaintiff’s failure to perform those requirements will doom its breach of contract claim.

 

 

Business Records Evidence – Getting Them In: Reading List 2018

Today’s reading list highlights some recent civil and criminal cases from State and Federal jurisdictions across the country that address the admissibility of business records (with some public records and ‘residual’ rule cases sprinkled in) in diffuse fact settings.

The cases below examine evidentiary issues involving documents that range from the clandestine (top-secret State Department cables) to the pedestrian (credit card records, loan histories, Post-It ® notes) to the morbid (telephone records in a murder case).

The encapsulated rulings below illustrate that courts generally follows the same authenticity and hearsay rules but there is a marked difference in the in the intensity with which some courts put a plaintiff to its proofs. While some courts liberally allow business record evidence so long as there is a modicum of reliability, others more severely scrutinize the evidence admissibility process.

If nothing else, given the recency of these cases (they are all from this year), what follows will hopefully provide litigators a useful starting point for assessing what factors a court looks at when deciding whether business records evidence passes legal admissibility tests.


Records: Excel spreadsheets printed from a third-party’s servers

Type of Case: Fraud

Did They Get In? Yes

Case: U.S.A. v. Channon, 881 F.3d 806 (10th Cir. 2018)

Facts: Government sued defendants who operated a two-year scam where they cashed in OfficeMax rewards accounts to acquire over $100K in merchandise. Government offers OfficeMax spreadsheets authored and kept by an OM vendor into evidence.

Objections: hearsay, improper summaries

Applicable Rules and Holding:

FRE 1006 – a summary of documents are admissible where the underlying documents are voluminous and can’t be conveniently examined in court. Proponent must make original or duplicate available to the other party. Summary’s underlying documents don’t have to be admitted into evidence with the summary/ies but must still be admissible in evidence.

FRE 1001(d) – “original” electronic document means “any printout – or other output readable by sight – if it accurately reflects the information” housed in a host database.

Held: summary spreadsheet deemed an “original” where two witnesses testified the spreadsheets reflected same information in the database. Since government made the spreadsheets available to the defendants before trial, they were admissible.

FRE 801, 803(6): hearsay generally; business records exception

Hearsay presupposes a “statement” by a “declarant.” FRE 801. A declarant must be a human being. The Excel spreadsheets at issue here are computer data and not statements of a live person. The spreadsheets are not hearsay.

Even if the spreadsheets are considered hearsay, they are admissible under the business records exception since plaintiff testified that the records were prepared in normal course of business, made at or near the time of the events depicted, and were transmitted by someone who had a duty to accurately convey the information and where there are other badges of reliability.


Records: Credit card records

Type of Case: Breach of contract

Did They Get In? Yes.

Case: Lewis v. Absolute Resolutions VII, LLC, 2018 WL 3261197 (Tex. App. – SA 2018)

Facts: Plaintiff debt buyer of credit card account sues card holder defendant. After summary judgment for plaintiff, defendant appeals on basis that court credited a defective business records affidavit.

Objection: hearsay, plaintiff wasn’t originator of the records.

Applicable Rules and Holding:

Tex. R. Evid. 803(6) – a business record created by one entity that later becomes another entity’s primary record is admissible as a record of regularly conducted activity.

Personal knowledge by the third party of the procedures used in preparing the original documents is not required where the documents are incorporated into the business of a third party, relied on by that party, and there are other indicators of reliability.

Tex. R. Evid. 902(10) – business records are admissible if accompanied by affidavit that satisfies requirements of Rule 902(10).

To introduce business records created by a third party, the proponent must establish (1) the document is incorporated and kept in course of testifying witness’s business, (2) the business typically relies on accuracy of the contents of the document, and (3) the circumstances otherwise indicate the trustworthiness of the document. Summary judgment for successor card issuer affirmed.


Records: Medical Records, Police Reports

Type of Case: Manslaughter (criminal)

Case: People v. McVey, (2018) 24 Cal.App.5th 405

Did They Get In? No.

Facts: Defendant appeals conviction on manslaughter and vandalism charges based on trial court’s improper exclusion of victim’s medical records and police reports which Defendant believed had exculpatory information.

Objection: hearsay

Applicable Rules and Holding:

Cal. Code s. 1271 – business records hearsay rule.
Hospital records can be admitted as business records if custodian of records or other duly qualified witness provides proper authentication.

Cal. Code ss. 1560-1561 – compliance with subpoena for documents can dispense with need for live witness if records are attested to by custodian of records with a proper affidavit.

Records custodian affidavit must (1) describe mode of preparation of the records, (2) state that affiant is duly authorized custodian of the records and has authority to certify the records, and (3) state the records were prepared in the ordinary course of business at or near the time of the act, condition, or event recorded.

Police reports are generally not reliable enough for face-value admission at trial. While police reports can be kept in regular course of police “business,” they typically are not created to transact business. Instead, police reports are created primarily for later use at trial.

The hallmarks of reliability – contemporaneous creation, necessity of record’s accuracy for core purpose of business – are missing from police reports.


Records: Prior servicers’ mortgage loan records

Type of Case: Breach of contract, mortgage foreclosure

Did They Get In? Yes

Case: Deutsche Bank v. Sheward, 2018 WL 1832302 (Fla. 2018)

Facts: lender receives money judgment against borrower after bench trial. Borrower appeals on ground that loan payment history was inadmissible hearsay

Objection: hearsay – successor business incompetent to testify concerning predecessor’s records

Applicable Rules and Holding: where a business takes custody of and integrates another entity’s records and treats them as its (the integrating business) own, the acquired records are treated as “made” by acquiring business.

A witness can lay foundation for records of another company. There is no requirement that records custodian have personal knowledge of the manner in which prior servicer maintained and created records

A successor business can establish reliability of former business’s records by “independently confirming the accuracy of third-party’s business records.”

Plaintiff’s trial witness adequately described process that successor entity utilized to vet prior servicer documents.

Also, see Jackson v. Household Finance Corp., III, 236 So.3d 1170 (Fla. 2d DCA 2018)(foundation for prior mortgage loan servicer’s records can be laid by certification or affidavit under Rule 902(11))


Records: Third-Party’s vehicle inspection report containing vehicle ownership data

Did They Get In? No

Type of Case: Personal injury

Case: Larios v. Martinez, 239 So.3d 1041 (La. 2018)

Facts: plaintiff sues hit-and-run driver’s insurer under La. direct action statute. Insurer appeals bench trial verdict in favor of plaintiff.

Objection: hearsay

Applicable Rules and Holding:

A witness laying the foundation for admissibility of business records need not have been the preparer of records. Instead, the custodian or qualified witness need only be familiar with record-keeping system of the entity whose records are sought to be introduced.

Plaintiff failed to introduce the report through a qualified witness. Plaintiff had no knowledge of the inspection report company’s record-keeping practices or methods. The trial court errored by allowing the report into evidence.

Judgment for plaintiff affirmed on other grounds.


Records: Student loan records

Type of Case: Breach of contract

Did They Get In? Yes.

Case: National Collegiate Student Loan Trust v. Villalva, 2018 WL 2979358 (Az. 2018)

Facts: assignee of defaulted student loan sues borrower. Borrower defendant appeals bench trial judgment for plaintiff.

Objection: loan records are inadmissible hearsay and lack foundation

Applicable Rules and Holding: witness for an entity that did not create a loan record can still lay foundational predicate by testifying to creator’s transfer of the business record to custodial entity, and the transferee entity’s maintenance of the records and reliance on the record in the ordinary course of business.

Documents prepared solely for litigation are generally not business records. However, where the litigation documents are “mere reproductions” of regularly-kept records, they are admissible as business records to the same extent as the underlying records.

Plaintiff’s witness laid sufficient evidentiary foundation where witness testified that assignor/originator transferred loan documents to assignee/plaintiff, that the plaintiff integrated the records with its own and that plaintiff had historically purchased records from the assignor.

Documents created “with an eye toward litigation” were still admissible since they were culled from pre-existing loan records kept in the regular course of business. Judgment for plaintiff affirmed.


Records: Halfway house incident report

Type of Case: Criminal escape

Did They Get In? No

Case: Wassillie v. State of Alaska, 411 P.3d 595 (Alaska 2018)

Facts: Defendant charged and convicted of second degree escape for leaving halfway house in which he was sentenced to serve remaining prison term.

Objection: Jury considered inadmissible hearsay document – an incident report prepared by halfway house staff member

Applicable Rules and Holding:

Incident report is missing earmarks of trustworthiness and is inadmissible hearsay. An investigative report raises concerns about the report author’s “motivations to misrepresent.” There is potential for animosity between reporter and subject of report which could lead reporter to hide mistakes or “inflate evidence” in order to further the author’s agenda.

Whether a report is deemed to have been prepared in regular course of business involves a multi-factored analysis of (1) the purpose for which the record was prepared, (2) a possible motive to falsify the record, (3) whether the record is to be used in prospective litigation, (4) how routine or non-routine the challenged record is, and (5) how much reliance the business places on the record for business purposes.

Examples of documents found to be sufficiently routine under Alaska law to merit business records treatment include payroll records , bills of lading, account statements, and social security records are typically admissible as business records.

However, a more subjective document – like a police report or the incident report here – is too susceptible to author’s selective memory and subconscious bias. Conviction reversed.


Records: Cell phone records

Type of Case: Murder

Did They Get In? No.

Case: Baker v. Commonwealth of Kentucky, 545 S.W.3d 267 (Ky 2018)

Facts: Defendant convicted of murder. Prosecution relied in part on victim’s cell phone records to tie defendant to victim.

Objection: cell phone records were inadmissible hearsay

Applicable Rules and Holding: prosecution must establish that phone logs are (a) authentic and (b) non-hearsay (or subject to a hearsay exception). Kentucky Evidence Rule 901(b) provides that evidence can be authenticated via witness testimony from a qualified witness. Here, prosecution witness – a detective – established that phone records were authentic: they were what they purported to be.

Once the authenticity hurdle was cleared, prosecution had to defeat hearsay objection. While the call logs constituted regularly conducted activity under KRE 803(6), the prosecution didn’t offer the logs through a custodian or by way of a Rule 902(11) affidavit. As a result, the trial court erred by admitting the call logs.

Note: the admission of the hearsay call logs was “harmless” since there was copious other testimonial and documentary evidence of defendant’s guilt. Conviction affirmed.


Records: Home health nurse’s “sticky” note

Type of Case: Medical malpractice

Did It Get In? Yes.

Case: Arnold v. Grigsby, 417 P.3d 606 (Utah 2018)

Facts: Patient sues doctor and others for malpractice after colonoscopy goes bad. (Ouch.) Nurse and pharmacy employee’s handwritten note on post-it/sticky note on plaintiff’s medical chart introduced to show plaintiff’s knowledge of injury within two years of surgery. Post-it notes contents was basis for Defendant’s statute of limitations defense and jury’s ‘not guilty’ verdict.

Objection: sticky note has multiple levels of hearsay and is inadmissible.

Applicable Rules and Holding: hearsay within hearsay is not excluded where each part of combined statements meets exception to rule of exclusion.

Sticky note is classic hearsay: it is being offered to prove truth of matter asserted – that plaintiff had contacted an attorney within days of the surgery. Utah R. Evid. 801(c)(hearsay generally).

The court found the note admissible under Rule 803(6) business records exception as the note is a record of the pharmacy’s regularly conducted activity and was entered contemporaneously into plaintiff’s electronic medical records.

Note’s statement that “client has been told by her lawyer not to sign any papers indicating she’ll pay” is admissible under Rule 803(3) – the hearsay exception for out of court statements that show a declarant’s state of mind (i.e. his motive, intent, plan, etc.).

Jury verdict for doctor defendants affirmed.


Records: Government reports; state department cables

Type of Case: Statutory claim under Torture Victim Protection Act (TVPA) (filed by relatives of victims killed by Bolivian Gov”t)

Did They Get In? Yes and No.

Case: Mamani v. Berzain, 2018 WL 2013600 (S.D. Fla 2018)

Facts: relatives of victims killed during civil unrest in Bolivia sued country’s former president and minister of defense under TVPA which allows plaintiffs to sue foreign officials in U.S. courts for torture and killing of a plaintiff’s relatives. Defendants’ motion for summary judgment denied.

Objection: various governmental documents are inadmissible hearsay or unauthenticated.

Applicable Rules and Holding: Public records hearsay exception – FRE 803(8) – and “residual” hearsay exception. FRE 803(7).

The public records hearsay exception applies where (1) the record sets forth the office’s activities, (2) the record concerns a matter observed by someone with a legal duty to report it – but not including a matter observed by law enforcement personnel in a criminal case, or (3) in a civil case or against the government in a criminal case, the record consists of factual findings from a legally authorized investigation.

The party opposing admission of the public record must show the source of or circumstances generating the information lacks basic levels of reliability.

Here, an investigatory report prepared by three prosecutors fit the definition of a record of a public office prepared in conjunction with an authorized investigation.

Under the “residual” hearsay exception, a statement is not excluded if it (1) has equivalent circumstantial guarantees of trustworthiness, (2) is offered as evidence of a material fact, (3) is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts, and (4) admitting it (the statement) will serve the purposes of these rules and interests of justice. FRE 807(a).

The residual hearsay exception is sparingly used and applies only where exceptional guarantees of trustworthiness are present coupled with elevated levels of probativeness and necessity.

Here, military and police records lack indicia of trustworthiness in light of the volatile atmosphere in which the reports were made. And while challenged state department cables do have exceptional guaranties of trustworthiness as they were signed by the then-U.S. Ambassador to Bolivia, the defendants failed to establish that the cables were more probative on the point for which they were offered than any other evidence the defendants could have obtained through reasonable efforts.


Records: Accident report

Type of Case: Personal injury

Did It Get In? No.

Case: 76th and Broadway v. Consolidated Edison, 160 A.D.3d 447 (NY 2018)

Facts: plaintiff injured on construction site sues general contractor and owner for negligence. Appeals court reverses trial court and grants summary judgment for defendant.

Objection: accident report offered by plaintiff that stated platform “must have been moved during demolition or trench work by [defendant contractor] is inadmissible.

Applicable Rules and Holding: voluntary statements in accident report authored by someone who is not under a duty to prepare the report is inadmissible hearsay. The report was based on information supplied by unnamed third parties. Because of its speculative nature, the report is inadmissible to create genuine issue of material fact.


Records: Credit card records

Type of Case: Breach of contract

Did They Get In? Yes.

Case: Lewis v. Absolute Resolutions VII, LLC, 2018 WL 3261197 (Tx. App. – SA 2018)

Facts: plaintiff assignee of credit card debt sues to collect. Summary judgment for assignee plaintiff affirmed.

Objection: plaintiff failed to lay proper foundation for original credit card issuer’s (Citibank) business records.

Applicable Rules and Holding: Business records are admissible if accompanied by Rule 902(10) affidavit. A business record created by one entity that later becomes another entity’s primary record is admissible as record of regularly conducted activity. Rule 803(6).

A third party’s (e.g. an assignee, successor, account buyer, etc.) personal knowledge of the specific procedures used by the record creator is not required where the third party incorporates the documents into its own business and regularly relies on the records.

To introduce business records created by a third party predecessor or assignee, the proponent must establish (1) the document is incorporated and kept in the course of the offering party’s business, (2) the business typically relies on the accuracy of the contents of the document, and (3) the circumstances otherwise indicate trustworthiness of the document.

The plaintiff’s Rule 902(10) affidavit explained the manner and circumstances in which plaintiff acquired the defendant’s credit card account and further stated that the plaintiff regularly relies on and incorporates other debt sellers’ business records.

The court was especially swayed by the testimony that the assignor was under a duty to convey accurate information to the plaintiff and risked civil and criminal penalties for providing false information. According to the court, this last factor gave the records an extra layer of protection against falsification.

‘Surviving Partner’ Statute Defeats Fraud Suit in Mobile Home Spat – IL Court

The plaintiff in Jett v. Zeman Homes sued a mobile home seller for fraud and negligence after it failed to disclose a home’s history of mold damage and location in a flood zone.  The plaintiff’s claims were premised mainly on an agent of the defendant mobile home owner who died during the course of the litigation.  Affirming summary judgment for the owner, the court considered and answered some important questions on the applicability of common law and consumer fraud actions to the real estate context and when the death of an agent will immunize a corporate principal for claims based on the deceased agent’s comments.

The plaintiff’s fraud claims alleged that defendant’s agent made material misrepresentations that there was not a mold problem in the mobile home park and that any mold the plaintiff noticed in her pre-purchase walk-through was an isolated occurrence.  Plaintiff also alleged the seller’s agent failed to disclose a history of flooding on the property the mobile home occupied and the home’s lack of concrete foundation which contributed to flooding in the home.

Plaintiff’s negligence count alleged defendant breached duties of disclosure delineated in Section 21 of the Mobile Home Landlord and Tenant Rights Act. 765 ILCS 745/21 (West 2016). Plaintiff alleged defendant breached its duty to her by failing to disclose the home’s history of mold infestation and failure to alleviate the mold problem after plaintiff notified defendant.

The appeals court rejected the plaintiff’s fraud claims based on Illinois Evidence Code Section 301 which provides that a party who contracts with a now-deceased agent of an adverse party is not competent to testify to any admission of the deceased agent unless the admission was made in the presence of other surviving agents of the adverse party. 735 ILCS 5/8-301 (West 2016).  This is an application of the “Dead Man’s Act” (see 735 ILCS 5/8-201) principles to the principal-agent setting.

Applying this surviving agent rule, the Court noted that plaintiff admitted in her deposition that the predicate statements giving rise to both her common law and statutory fraud counts were made solely by the deceased defendant’s agent.  Since plaintiff could not identify any other agents of the defendant who were present when the deceased agent made statements concerning prior mold damage on the home, she could not attribute a materially false statement (a common law fraud element) or a deceptive act or practice (a consumer fraud element) to the defendant.

The appeals court also affirmed summary judgment for the defendant on plaintiff’s negligence count.  An Illinois negligence plaintiff must plead and prove: (1) the existence of a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty, and (3) an injury proximately caused by that breach.

Since the lease agreement attached to plaintiff’s complaint demonstrated that the owner/lessor was someone other than the defendant, the plaintiff could not establish that defendant owed plaintiff a legal duty.

Afterwords:

A fraud plaintiff relying on statements of a deceased agent to hold a principal (e.g. an employer) liable, will have to prove the statement in question was made in the presence of surviving agents.  Otherwise, as this case shows, Illinois’ surviving partner or joint contractor statute will defeat the claim by barring the plaintiff from presenting evidence of the deceased’s statements or conduct.