STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
23-195
DEALER SERVICES SOUTH, INC.
VERSUS
MARTIN AUTOMOTIVE GROUP, INC.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2018-5417 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G. Fitzgerald, Judges.
AFFIRMED. Walter M. Sanchez Sanchez Law Firm 1200 Ryan Street Lake Charles, LA 70601 (337) 433-4405 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dealer Services South, Inc. Edward G. Martin, Jr.
David L. Marcus Attorney at Law 4700 Belleview, Suite 200 Kansas City, Missouri 64112 (816) 256-4699 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dealer Services South, Inc. Edward G. Martin, Jr.
Paul L. Veazey, Jr. Stockwell, Sievert, Viccellio, Clemets & Shaddock, LLP 127 Broad Street, Fourth Floor P. O. Box 2900 Lake Charles, LA 70601 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: Martin Automotive Group, Inc. GREMILLION, Judge.
Plaintiff/Appellant, Dealer Services South, Inc. appeals the trial court’s
judgment dismissing its breach of contract claim against Martin Automotive Group,
Inc. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Martin Automotive Group (MAG) sold packages for a variety of services to
its car-buying customers brokered by Dealer Services South, Inc. (DSSI), whose
chairman and CEO is Mark Mader. Mader received a commission from the
insurance companies underwriting the services on each contract MAG sold. DSSI
had provided these services to the dealership since 2010. However, in 2014, DSSI
had its attorney, who was also DSSI’s counsel at the trial, create the “Dealer
Agreement,” which provided that if MAG failed to meet certain quotas relating to
the provision and sales of lifetime powertrain warranties, extended service
warranties, etch theft deterrent systems, and GAP contracts, MAG would have to
make up the difference in commissions. MAG failed to meet sales quotas set by
DSSI, and DSSI asked MAG to make up the difference. MAG refused to pay, and
DSSI filed suit on January 14, 2019, for breach of contract, claiming MAG owed it
$342,905.00 for breach of the May 2014 Dealer Agreement between Mader and
Edward G. Martin Jr. (Chip), the then president of MAG.
In December 2019, DSSI filed a motion for partial summary judgment, urging
that the Dealer Agreement was a valid and binding contract. Attached to the motion
were affidavits of Mader and Martin attesting that they each signed the Dealer
Agreement. MAG opposed the motion and attached the affidavits of six people,
including a forensic document examiner, and the depositions of Chip and his sister,
Kathryn McNutt. Following a January 2021 hearing, the trial court denied DSSI’s
motion for partial summary judgment. On November 15, 2021, MAG filed a motion for leave to file a third-party
demand against Chip alleging breach of his fiduciary duty to MAG if the Dealer
Agreement was found valid. DSSI opposed the motion. The trial court’s December
2021 order granted MAG’s motion for leave to file the third-party demand.
Following a three-day trial on February 22-23, 2022 and June 16, 2022, the
trial court rendered extensive oral reasons for ruling on August 30, 2022. The trial
court signed a written judgment on September 20, 2022. DSSI and MAG timely
appealed.
DSSI now appeals and assigns as error:
1. The trial court erred in failing to find that Martin signed the Dealer Agreement on MAG’s behalf.
2. The trial court erred in failing to find Martin acted with at least apparent authority in signing the Dealer Agreement on MAG’s behalf.
MAG, third-party plaintiff, also appealed and assigns as error:
Had the trial court not properly dismissed DSSI’s petition with prejudice, the trial court’s dismissal of MAG’s third-party demand as moot would have been legal error.
DISCUSSION
At trial, MAG argued the Dealer Agreement was unenforceable because Chip
lacked authority to sign on MAG’s behalf or that his signature was a forgery. The
trial court found the agreement unenforceable. The following testimony and
evidence was introduced at trial.
Mark Mader
Mader testified that he signed the Dealer Agreement and Chip signed it in his
presence. Mader said he and Chip signed the document on Mader’s electronic tablet
with their fingers. Mader testified regarding the terms of the contract. He said the
date of the contract was May 1, 2014. Prior to that time, DSSI had an agreement
2 with MAG that it would sell various products for it; however, Mader said that a
different dealership, Navarre Automotive, was interested in the programs he offered,
and Mader proposed to Edward Martin, Sr. and Chip a program where certain
minimums had to be met in order for MAG to achieve exclusivity related to the
products. Mader said, “I would have made more money off of this one product with
Navarre than with all the products I had at Martin. So it was a business decision I
was making.” Mader said he worked with the company to improve its numbers,
which were not meeting the stated goals. He said there never was a true-up because
Martin, Sr. was ill and Mader’s house flooded in August 2016.
Mader then reviewed an email sent to Terry Taylor, who succeeded Chip in
2018, with his intentions to enforce the contract. On November 5, 2018, Mader sent
a demand letter to MAG for approximately $300,000.00 for failing to meet sales
quotas on extended warranty contracts, GAP contracts, theft deterrent etch contracts,
and lifetime powertrain loyalty certificates. However, Mader said that MAG did not
respond to the letter.
On cross-examination, Mader was questioned about the veracity of whether
Navarre Automotive wanted to take the program away from MAG and the
“exclusivity” of it because Mader had not described any of that in his deposition.
He admitted that he sent Taylor the previous agreement that Premier Dealer Services
had with MAG since 2010 rather than the 2014 Dealer Agreement in question in the
email string. Mader said the signatures to the Dealer Agreement were captured on
a Samsung device using Android software in an app that he did not remember the
name of. He said when he returned to his office, he printed out the contract and
brought a paper copy back to the dealership, giving one to Chip and leaving one on
Martin, Sr.’s desk. However, Mader said the tablet was lost in the August 2016 flood
in Baton Rouge, and the original could not be produced. 3 Chip Martin
Chip testified he was the president and general manager of MAG from about
2000 through 2016-17. He said he regularly signed all kinds of contracts on behalf
of the company and appeared in TV, radio, and newspaper advertising. He said
MAG’s relationship with Mader began in about 2007. Chip said he signed the Dealer
Agreement on an electronic device with his finger with the express approval of his
father. Chip was shown the previous contract with DSSI to sell similar products
which required no minimums, had no termination penalty, and was not for a specific
term.
Chip said he signed the contract before there was an “actual board functioning
at the Martin Automotive Group.” He said that his father knew the quotas were not
being met, and that once board meetings commenced in 2016, he did not “formally”
inform the board that the numbers were not being met. Chip testified that after he
electronically signed the document, he gave the copy Mader brought to him to Kay
Miller, the controller. The trial court inquired why he entered into a contract to meet
certain numbers that had never been met in the years prior, but Chip said that he
expected to meet the goals because of the change of location of the dealership. The
new location opened on November 17, 2014.
Chip later admitted that board meetings began in January 2014, before this
contract was confected, rather than in 2016 as he testified earlier. He further
admitted that the board meeting agenda required him to report any contracts that
were signed and by whom.
Amy Hood
Amy testified that she worked at MAG since 2005, in various management
positions. She stated that she was totally unaware of the Dealer Agreement until
sometime in 2018. She said she first learned of it close to the time when the 4 dealership was being sold. Hood said between the 2014-2018 period there was less
training by Mader or his employees, but he did visit periodically.
Daryl Hood
Daryl worked at MAG since 2010, and in April of 2014, worked in the finance
and insurance department that sold the products involved in this case, which were
also known as F & I products. Daryl now works at Navarre. Darryl said the first
time he ever saw the Dealer Agreement was very close to the sale of MAG to the
Navarre Group. Daryl said he was very familiar with Chip’s signature because he
signed all of his paychecks and all of the F & I contracts for the products that Daryl
sold. Daryl testified that he did not believe the signature on the Dealer Agreement
was Chip’s because it was not “rigid and jagged and sharp” but instead had “circles”
and “he didn’t do that.” Daryl was asked if he had would have known about the
existence of the contract that had quota minimums and said, “I don’t know whether
I would have known about it or not, but I feel like somebody would’ve told me I
needed to sell more of them, you know.” He said no one ever told him he needed to
sell a certain number of products or that there was any early termination penalty.
Daryl noted, however, that he had never seen Chip sign something on an
electronic device and would not know what his electronic signature looked like
compared to his regular signature. He said neither Mader nor Chip ever spoke to
him about raising the numbers of F & I products sold to meet quota minimums.
Terry Taylor
Taylor, who was president and general manager of MAG following Chip’s
tenure, testified that he first became aware of the Dealer Agreement on October 30,
2018, the day before they were going to close on the dealership on Highway 14.
Taylor stated he was very familiar with Chip’s signature and that it did not look like
his on the Dealer Agreement. He said, “Well, Chip’s signature has a tendency to be 5 very tight, very small, and if this is the actual size page of that document, it – his
signature just loo[k]s big on here. It looks big and bold compared to what I’m
accustomed to seeing.” He went on to state that the “M” does not look like his and
in the past, “that little tail that’s on the – on the end of his name, is usually is much
lower and going to the right. And the first of it, I’m not even sure what that is.” He
concluded, “Well, it just doesn’t look anything like what I normally have seen from
him. I mean, it’s different.”
Taylor then discussed the email string in which he asked Mader for a copy of
the existing contracts relating to the powertrain warranty because he needed to give
them to the Navarre Group. He said, “[Mader] emailed me a copy of the Premier
Dealer Services contract and so I made the assumption that was the only contract in
existence for that purpose as that time and went on about my work.” In preparation
for the sale of the dealership, he discussed with Amy what to tell the customers about
their existing powertrain warranties. They called Mader to inquire. Taylor testified:
And we called [Mader] and we posed that very question to him. Well, instead of answering the question, what he said to me was, I have here something that you probably don’t have and I’m gonna email it to you. So okay, I was still confused because I didn’t know –we still didn’t have an answer to our questions and I wasn’t quite sure what he was talking about. And then this email came and he definitely says a contract there, but he never mentioned a contract to us on the phone that day, that I recall, so this is the DSSI contract that I guess is in question.
Taylor said Mader informed him there were requirements under the contract,
but he “still had no idea what he was talking about.” Taylor went on to testify:
I had asked [Mader] about where did all this come from and how’d it come to be, et cetera and so forth, and he told me, he says, well, this is something Chip and Ed Martin agreed to. And I told him, I said, well, this is a very one-sided contract. I said what’s in it for us? And he said, well you get to sell those lifetime powertrain warranties. And I happen to look down at the contract that was laying there on my desk and I said to him I said, Marc, this doesn’t even look like Ed – Chip’s signature. I said it’s much different tha[n] his signature. And he made the comment back to me, he says, well, if you don’t believe it’s his
6 signature, I’ll get all the signature experts in the world to testify that it is his signature. And that’s kind of where we left it.
Taylor did note that he only started working at MAG in October 2016, about two
years after the Dealer Agreement was allegedly signed.
Robert Foley
Foley, a forensic document examiner for over fifty years, was qualified as an
expert in forensic document examination. Foley testified in detail about his
methodology in comparing signatures. He had thirty-five known samples of Chip’s
signature to compare against the electronic one. Foley extensively discussed aspects
of each letter of Chip’s known signatures and characteristics attributable to the letter
formations in his signature. Foley concluded regarding the signature on the Dealer
Agreement: “[I]t’s probable that the person who wrote the comparative signatures
of Mr. Ed Martin [Jr.] did not sign the Exhibit 16 [Dealer Agreement].” Foley said
initially he was unaware that the signature was electronic. Foley still concluded:
[I]t’s more probable than not that Edward Martin [Chip] signature appearing upon the Exhibit 16 Dealer Agreement, in my opinion, is not genuine, was not signed by the signer of these other exhibits with his signature on them and it’s based upon the differences observed in the structure themselves, as well as, the claim of being an electronic signature, which is not consistent with my experience at this point in electronic signatures.
Foley admitted that all of the signatures he compared to the electronic one were not
electronic signatures.
Kay Morris
Morris testified she was the controller at MAG and had been since 2006. She
handles all of the financial statements, expenses, cash flow, accounts receivable, and
accounts payable. Morris wrote the checks to the insurance companies when one of
the products offered by Mader was purchased. She said she has never made a
payment to Mader. Morris said she was very familiar with Chip’s signature from
7 day-to-day operations. He would place a second signature on the checks she wrote
and sign various other forms on a daily basis.
Morris said the first time she saw the Dealer Agreement was in December
2018. Prior to that, she stated that she was never aware that a certain number of
products had to be sold every month or that if MAG failed to, it would owe a penalty
to DSSI. She said she should have been aware if it existed because she would need
to keep track of sales on their daily operating control (DOC) spreadsheet for cash
flow purposes if they were going to have to pay Mader. She reviewed the DOCs
that showed how many of each type of product had been sold. For example, for the
year 2013, GAP and credit life insurance was sixty-two for the year, and their quota
was 144; service contracts was 133, and their quota was 180; special products was
0, and their quota was 156. Similarly, the sales of these products set for the months
of January 2014 through April 2014, were at or below 50 percent of the quota.
Morris said she had seen Chip’s signature every day for years and that the
signature on the Dealer Agreement was not his. She said that the fact that the
signature was on an electronic device did not change her opinion. She said she was
never given the Dealer Agreement, and if she had been given it, she would have read
over it and questioned it as part of her duties because they never attained the
minimum requirements set forth in the agreement. She said she would have then
taken it to her supervisor. Thereafter, she would have put it in a folder in their
fireproof filing cabinet with all other contracts. She said she “couldn’t believe it”
and was surprised when she found out about the agreement. Morris said all of the
filing cabinets were searched for the Dealer Agreement, but it was never found. She
said it was not feasible for MAG to meet the terms of the Dealer Agreement. Further,
she testified that MAG never paid Mader directly; he received his commissions from
the insurance companies that provided the services. 8 Katherine “Kay” Martin McNutt
Kay, Chip’s sister, testified that she became the chief financial officer of MAG
beginning sometime in 2009 or 2010. She said they began having monthly board
meetings in mid-2011. At this time, the corporate by-laws were admitted into
evidence. Kay reviewed minutes taken from Board meetings in January 2014
through May 2014. The minutes have a section reviewing any contracts and by
whom it was signed; that information was to be provided by the general manager,
Chip. She said a contract of that nature would have been expected to be discussed.
She said the Dealer Agreement was never discussed at any board meeting. Kay
testified no one told her about the Dealer Agreement, and her father definitely would
have. Kay reviewed a portion of the December 30, 2013 MAG 2014 outline/to-do
list that stated: “Adhere to policy put into place by COB: all new pay plans, changes
in pay plans, new contract commitments, contract renewals, and any other
commitments related to spending funds is to be approved and signed by the chairman
of the board.” At that time, her father was the chairman of the board. Kay, who
worked closely with her father, opined that “never in a million years” would her
father have agreed to the Dealer Agreement. She did admit that the to-do list never
became part of the bylaws.
Kay said she only became aware of the Dealer Agreement after Taylor told
her about it on October 30 or 31, 2018. Kay testified that, besides being shocked by
the content of it, she immediately knew that Chip had not signed it because Chip’s
signature was very consistent and she had seen it “hundreds and hundreds of times.”
She said the electronic signature had no resemblance to Chip’s signature and was
“totally different.” She agreed, though, that Chip had been the president of the
company for about 20 years and had signed lots of contracts on behalf of the
company. She also agreed that it “doesn’t make sense” that Chip signed a bank loan 9 making himself personally contingently liable for over $3,000,000 for the business,
then took steps to hurt the business.
The Trial Court’s Ruling
The trial court stated that DSSI bore the burden of proving that a valid contract
existed: “[DSSI] would have to show there was a signature, a valid signature, and
that Chip Martin had the authority to, if it was a valid signature, that he had the
authority on behalf of Martin Automotive Group to sign that contract and bind
Martin Automotive Group to that contract.” The trial court discussed at length that
there was no communication regarding this alleged contract over the years; no emails
sent warning that the sale teams was failing to meet the quotas; that the electronic
signatures were post-dated; that the entire agreement, if it existed, was never
discussed and was basically a “secret” that no one knew about before October 2018
(when Mater sent an email to Terry Taylor); that Chip only acknowledged his
signature when he had nothing to lose several years after his departure; that the
Dealer Agreement was never brought to the board meetings; and that Chip did not
have authority under the by-laws to sign the contract even if it was his signature.
The trial court further did not believe that the sophisticated businessman,
Mader, who had thousands of contracts with dealerships all over the country, did not
know that he had to get proper authority. He found all of the witnesses who testified
that they had never seen or heard of this agreement until November or December
2018 credible. The trial court also said that Mader would have cut his losses and
gone to the other dealerships after two-plus years of not meeting the goals. But that
to go four years and not send an email or do anything is “quite telling” and “the
whole thing is odd, very odd, that there’s no paper trail for any communication
whatsoever with anybody. None. None whatsoever. No board meetings, no emails,
nothing with hundreds of thousands of dollars at stake.” The trial court noted that 10 there were no emails between Mader or Chip or anyone at the dealership about this
agreement.
The trial court opined that nothing new was being offered in the Dealer
Agreement and that is why no one at the dealership thought anything about it when
they continued doing business as usual after this proposed contract was allegedly
signed.
The trial court found Mater and Martin were not credible. It stated:
there’s no evidence – first of all, they don’t have the original agreement to begin with, number one. They haven’t proven that it’s a valid electronic signature that was put on there on the date that it was purportedly signed. In fact, the evidence is opposite that. The evidence shows that it was put on there and it was produced by – I mean the evidence that was produced by Martin Automotive shows that those signatures were acutally placed on there a couple of months later, after this purported date on this agreement.
The trial court further stated: “They haven’t even met their burden. Plaintiff
hasn’t even met its burden that that was a validly executed agreement, that there’s a
legitimate signature on that agreement[.]” It also said: “I find that there was no valid
agreement, that they have not proven that there was a valid contract, a validly signed
contract; that there were very suspicious circumstances and credibility problems
throughout this case, and I think the third-party demand becomes moot at that point.”
Valid Contract-Forgery
A breach of contract claim requires that the plaintiff establish that a contract
exists, that the contract obligations were breached, and that it suffered damages as a
result. A Caring Home Care Services, LLC v. de la Houssaye, 17-31 (La.App. 3 Cir.
7/5/17), 224 So.3d 422, writ denied, 17-1328 (La. 11/6/17), 229 So.3d 474. A
private act between the parties must be signed by them. La.Civ.Code art. 1837.
Electronic signatures have the same legal effect as handwritten ones. La.R.S. 9:2607.
11 Fraud resulting from forgery is an affirmative defense. La.Code Civ.P. art. 1005;
Domingue v. Dickinson, 611 So.2d 796 (La.App. 3 Cir. 1992). “The determination
of whether an issue is an affirmative defense is a question of fact resolved by
examining the circumstances of the individual case.” Biglane v. Board of Comm’rs,
Fifth Louisiana Levee District, 18-100, 18-101, p. 5 (La.App. 3 Cir. 9/26/18), 256
So.3d 1052, 1057, writ denied, 18-1767 (La. 1/8/19), 260 So.3d 588.
DSSI argues the trial court erred by placing the burden on it to prove Chip’s
signature was not forged. We disagree. Regardless of how DSSI classifies what the
trial court stated, it bore the initial burden of proving a valid contract existed. DSSI
did establish a prima facie case that a valid contract existed by having Mader and
Chip testify that they signed the agreement and were willing to be bound to its terms.
However, MAG asserted the affirmative defense of fraud via a forgery, which, if
proven, would defeat the existence of a valid contract. La.Code Civ.P. art. 1005.
The trial court implicitly found that MAG met that burden of proving that Chip’s
signature was forged, and we find no error in its finding.
The many facts the trial court discussed in its oral reasons call into question a
legitimate reason for entering into the contract. For example, the facts, or lack
thereof, surrounding the signing of the contract, the lack of dissemination of the
contract to anyone at the dealership, the lack of any email correspondence
whatsoever about the alleged contract, the lack of any mention of it in the board
meeting minutes, and the fact that no one at the dealership knew about the contract
until late 2018. These facts would establish that, if Chip’s signature had not been
forged, he may have breached his fiduciary duty to his company. However, we need
not even reach that question, as the forgery alone is enough to find that no valid
contract existed.
12 We find that the trial court did not manifestly err in finding that the signature
bearing Chip’s name was forged, even in spite of Chip’s own testimony that he
signed the document electronically. While the trial court’s reasons focused heavily
on all the underlying reasons why this contract was not valid, it inferred that Chip’s
acknowledgment of the signature was after the fact when he had nothing to lose,
stating, “like I said, when you’re looking at the legitimacy of the signature, I really
do question that at this point.” The trial court later stated, “I question whether this
was actually ever even signed.” The trial court went on to state that, even if it was,
Chip did not have authority to sign it under MAG’s bylaws. The trial court addressed
DSSI’s argument that the only issue is “identity and representation and a person’s
willingness to be bound”:
Well, I think that I’ve kind of addressed that for a while now, you know. I mean I think that you have to look at his motive and the context, Chip Martin’s willingness to be bound knowing it’s not going to affect him, knowing that it’s going to hurt his company way after the fact, years later, when there was no evidence of this contract until years after it was purportedly signed and there was no action taken on this contract for years after it was purportedly signed. It wasn’t brought to life until years later. I don’t think that part is even – I mean I think his ulterior motive outweighs that if he actually did it.
The trial court subsequently noted, “if he did sign it [] he didn’t have the
authority to do it.” The trial court questioned whether the signature itself was valid
for a number of reasons, including whether it actually was electronically signed by
anyone or whether the signature was placed on the document with a picture at a later
date, though admittedly, the trial court spent a lot of time discussing the questionable
circumstances giving rise to this alleged contract. The trial court did state that,
“Plaintiff hasn’t even met its burden that that was a validly executed agreement, that
there’s a legitimate signature on that agreement by a representative of Martin
Automotive Group.” We find the trial court’s language does not impermissibly shift
the burden to plaintiff to prove the document was not forged. The trial court 13 implicitly found that MAG proved it was forged, and it did not manifestly err as the
evidence was overwhelming that the signature on the Dealer Agreement was not
Chip’s.
DSSI cites Reno v. Travelers Home and Marine Ins. Co., 02-2637 (La.App. 1
Cir. 11/7/03), 867 So.2d 751, for the proposition that Chip’s testimony that he signed
the contract and intended to be bound by it is all that is required. In Reno, the court
stated:
The Renos do not allege fraud or that the Form was signed in error, nor do they disavow the authenticity of their names as they appear on the Form. The Renos merely contend that their printed names are inadequate to bind them on the Form. We find no merit to the Renos’ position. The Renos clearly and positively admitted their intention to waive UM coverage in order to save money, and they acknowledged that Mrs. Reno handwrote the printed names on the Form. A signature consists of both the act of writing one’s name and of the intention of authenticating the instrument. Action Finance Corp. v. Nichols, 180 So.2d 81, 83 (La.App. 2 Cir.1965). The fact that a signature is printed by hand rather than written in cursive does not indicate a lack of genuineness. Boykin v. DeSoto Parish Police Jury, 359 So.2d 239, 241 (La.App. 2 Cir.), writ denied, 360 So.2d 199 (La.1978). It makes no difference whether a signature is printed by hand or handwritten in script or cursive. It is merely a question of identity and a representation of a person’s willingness to be bound. See Williamson v. Guice, 613 So.2d 797, 799 (La.App. 4 Cir.), writ denied, 617 So.2d 937 (La.1993). See also Smith v. Travelers Ins. Co., 560 So.2d 472, 474 (La.App. 1 Cir.), writ denied, 564 So.2d 325 (La.1990).
Id. at 754 (emphasis added).
In brief, DSSI argues that once Chip acknowledged that he signed the Dealer
Agreement, its burden was met to show that the parties executed the document. It
states:
At that point, the burden should have been shifted to MAG to prove Martin’s signature had been forged. But it’s clear from the trial court’s ruling that it did not shift the burden to MAG to prove anything. Nowhere in the trial court’s ruling is a finding that Martin’s signature was in fact forged. Instead the trial court’s exclusive focus was DSSI’s purported lack of proof. The trial court downplayed and disregarded the effect of an acknowledged signature on a private agreement.”
14 We disagree. The Renos’ identity as the parties who printed, rather than
cursively signed, their names on the UM contract was never called into question. In
this case, a significant portion of the three-day trial centered on the source of the
signature on the Dealer Agreement. Besides the obvious discrepancy on the face of
the Dealer Agreement, MAG also presented evidence as to why Chip would profess
willingness, that the trial court deemed “ulterior motives,” to be bound to a contract
that had no benefit for the company on whose behalf he allegedly signed it. While
Chip professed his willingness to be bound by the contract at the trial, the signature
on the document did not confirm his identity. These facts are unusual in that the
party to the contract is not disavowing their own alleged signature, as in Reno;
however, we find no error in the trial court’s finding that MAG met the burden of
proving Chip’s signature was forged. The electronic signature bore no resemblance
whatsoever to Chip’s normal signature, as noted by the expert and every single
witness, many of whom had no stake whatsoever in the litigation. It is obvious from
a quick glance of the thirty-five admitted signatures that the signature on the Dealer
Agreement was not Chip’s because of very distinguishing characteristics of the
signature such as a loopy “M” and otherwise rigid structure of Chip’s actual
signature which numerous people testified they had seen hundreds of times. The
testimony was overwhelmingly clear that the signature bore no resemblance to
Chip’s signature. The trial court clearly found that testimony credible, and we
cannot say it erred.
DSSI’s last argument that MAG failed to meet its burden of proving a forgery
asserts that a forgery does not exist under La.R.S. 14:72 which defines “forge” in
part as, “To alter, make, complete, execute, or authenticate any writing so that it
purports: to be the act of another who did not authorize the act[.]” DSSI argues that
(emphasis added): 15 MAG could not prove Martin’s signature was a forgery merely by presenting proof Martin did not physically sign the document. MAG also was required to show the signature that appears on the Dealer Agreement was placed there without his authorization. There is absolutely no evidence in the record to show the signature was unauthorized. Martin was steadfast in his assertion that he signed the Dealer Agreement on MAG’s behalf.
Without addressing whether the definition of forgery in a criminal statute
applies in this civil context, the only party who could prove that he authorized
someone else to sign on his behalf was Chip. As noted above, Chip steadfastly
claimed that he signed the document, not that he authorized someone else to sign it
for him. While we do think this is a difficult burden to overcome when a party
acknowledges a signature and willingness to be bound, it can be accomplished, as
was done here. Accordingly, this assignment of error is without merit.
Based on our above findings, assignment of error two and MAG’s third-party
demand are rendered moot.
CONCLUSION
The judgment of the trial court finding no valid contract existed due to forgery
is affirmed. All costs of this appeal are assessed against Dealer Services South, Inc.
AFFIRMED.