law-admission-of-microfiled-contract  | admission and exclusion of evidence by trial court |  

MICRO-FILMED CONTRACT AS EVIDENCE

Admission of Exhibit 1

Exhibit 1, a copy of Mr. Sinegaure’s membership contract, had been retained by Bally in microfiche storage.
Sinegaure and Intervenors argue that Bally’s corporate representative could not authenticate Exhibit 1 for lack of
personal knowledge that the signature was Mr. Sinegaure’s. Sinegaure and Intervenors rely on Texas Rule of
Evidence 901(b) and one case, In re G.F.O., as authority. See Tex. R. Evid. 901(b); In re G.F.O., 874 S.W.2d 729
(Tex. App.—Houston [1st Dist.] 1994, no writ). Their reliance is misplaced. Texas Rule of Evidence 901(a) requires
authentication of evidence. Tex. R. Evid. 901(a). Texas Rule of Evidence 901(b) gives examples of authentication
conforming with rule 901(a). Tex. R. Evid. 901(b). Rule 901(b), however, expressly states that the examples listed
are not limitations on the ways an object can be authenticated to meet the requirements of 901(a). Id.

Sinegaure v. Bally Total Fitness Corp,. (Tex.App.- Houston [1st Dist.] Dec. 18, 2008)(Taft)
(liability for death, emergency medical service, gym, admission of evidence microfiled contract)
AFFIRM TC JUDGMENT: Opinion by
Justice Taft  
Before Justices Taft, Keyes and Alcala
01-05-01070-CV  Vanessa Sinegaure, Individually and as Representative of the Estate of Darnell Sinegaure,
Deceased; Virginia Sineguare, Darnell Jones and Harold Moore v. Bally Total Fitness Corporation, et al.
Appeal from 334th District Court of Harris County
Trial Court Judge: Hon Sharon McCally

Under rule 901(a), the requirement of authentication “is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” In Re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Sanchez v.
State Bd. of Med. Examiners, 229 S.W.3d 498, 508 (Tex. App.—Austin 2007, no pet.); see Tex. R. Evid. 901(a).
Such evidence may include testimony by a witness with knowledge that a matter is what it is claimed to be, but the
predicate for admissibility under Rule 901 may also be proved by circumstantial evidence. Sanchez, 229 S.W.3d at
509; In Re G.F.O., 874 S.W.2d at 731. This requirement may be met by “appearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Am. Cas. Co. of
Reading, PA v. Hill, 194 S.W.3d at 162, 167 (Tex. App.—Dallas 2006, no pet.); see Tex. R. Evid. 901(a)(4).

In In re G.F.O., this Court held that a document is considered authentic if a sponsoring witness vouches for its
authenticity. 874 S.W.2d at 731. That is essentially what happened when Bally’s corporate representative testified
that

●all Bally members have a contract;

●retail contracts with members are kept on “microfilm” [sic] and stored at Bally’s service center in California;

●she was familiar with the microfiche process;

●a contract from the time that Sinegaure joined the health club would have been sent to the California facility and
stored on microfiche;

●the microfiche document was a copy of the contract between Mr. Sinegaure and Bally;

●she was unaware of any change in the microfiche process since Bally began microfiche storage; and

●no additional contracts needed to be signed, and the contract would have continued year to year.

This testimony and counsels’ representations to the court that there would be no contest to the signature on the
document were sufficient circumstances to establish the document’s genuineness under rule 901(a). The trial
court’s ruling was thus not unreasonable or arbitrary or made “without reference to any guiding rules or
principles.” Cire, 134 S.W.3d at 839.

We hold that the trial court did not abuse its discretion in admitting Exhibit 1. We overrule Sinegaure’s issue four
and Intervenors’ issue one.

D.      Preservation of Error as to Exhibit 1A

1. Preservation of Sinegaure’s Issues Five and Six

Sinegaure objected at trial to the introduction of Exhibit 1A, the back-facing pages of the contract, on two bases:
(1) that there was no authentication of the document and (2) that the document was admitted improperly as an
exemplar. The trial court overruled Sinegaure’s objections, and thus her issues five and six as to the admission of
Exhibit 1A are preserved for appellate review. See Tex. R. App. P. 33.1.

2. Preservation of Intervenor’s Issues Two and Three

Intervenors made no objection at trial to the admission of Exhibit 1A and thus waived any error. See Tex. R. App.
P. 33.1. We thus overrule their issues two and three.

E.      Admission of Exhibit 1A

1. Sinegaure’s Issue Five

Sinegaure’s issue five, complaining that there was no authentication of the exemplar document, contains no
authority. Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 363 (Tex. App.—Dallas 2007, pet. denied)
(overruling appellants’ points of error when they cited no authority to support their argument that appellee could
not attach unauthenticated exemplars to its summary judgment order, citing former Tex. R. App. P. 38.1(h), now
Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”)). Accordingly, we overrule Sinegaure’s issue five.

2. Sinegaure’s Issue Six

Sinegaure’s issue six, that the documents were improperly admitted as an exemplar, discusses only handwriting
exemplars and cites only cases pertaining to the same. However, the pages on Exhibit 1A were not admitted as a
handwriting exemplar, but as exemplars of the contract form being used at the time that Mr. Sinegaure joined the
health club.

Demonstrative evidence such as models and exemplars is used in trial when original evidence is unavailable. In
most instances, models have been held admissible in evidence, or held properly used for purposes of
demonstration or illustration, if the resemblance to the original is sufficient or if possible dissimilarity is pointed out
to the jury. Davis v. Callen, 250 S.W. 305, 307 (Tex. Civ. App.—Beaumont 1923, no writ). Models and exemplars
have been used in Texas courts for a variety of items from clothes dryers Footnote to documentation.
Footnote                    

In Sinegaure’s case, the trial court received testimony from the corporate representative as to the genuineness of
the back-facing pages. See Tex. Mach. & Supply Co. v. Ayers Ice Cream Co., 150 S.W. 750, 753 (Tex. Civ. App.—
Dallas 1912, no writ) (holding that it is proper for witness to testify to correctness of model exhibit). Sinegaure had
the opportunity on cross-examination to elicit testimony to dispute whether the exhibit was an exemplar of the
contract that Mr. Sinegaure would have executed. See Whirlpool Corp. v. Camacho, 251 S.W.3d 88, 99 (Tex. App.
—Corpus Christi 2008, pet. filed) (holding that Whirlpool did not present any evidence that exemplar dryer’s air
transport tube or heating element was substantially different from incident dryer’s parts); Davis, 250 S.W. at 308.
The record shows that neither Sinegaure nor Intervenors offered or elicited anything to show that the document
was different from Mr. Sinegaure’s contract. Id.

In admitting Exhibit 1A as an exemplar, the trial court did not decide that Exhibit 1A was the same as Mr.
Sinegaure’s contract, but expressly reserved that ultimate determination for the jury. In light of the testimony and
representations relevant to the evidentiary ruling, we hold that the trial court’s ruling was not unreasonable or
arbitrary or made “without reference to any guiding rules or principles.” Cire, 134 S.W.3d at 839. We hold that the
trial court did not abuse its discretion in admitting Exhibit 1A, and we overrule Sinegaure’s issue six.


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