Masonite Corporation D/B/A Louisiana Millwork v. Service Door & Millwork, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1035

MASONITE CORPORATION D/B/A LOUISIANA MILLWORK

VERSUS

SERVICE DOOR & MILLWORK, LLC, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2008-5435
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Rick J. Norman, Jr.
Norman Business Law Center
145 East Street
Lake Charles, LA 70601
(337) 436-7787
COUNSEL FOR PLAINTIFF/APPELLEE:
Masonite Corporation d/b/a/ Louisiana Millwork

L. Richard Roy, III
Fletcher & Roy, LLC
660 Government St.
Baton Rouge, LA 70802
(225) 888-8000
COUNSEL FOR DEFENDANT/APPELLANT:
Ralph L. Fletcher

SAUNDERS, Judge.

This case is before us on appeal from a jury verdict rendered on suit on open

account in favor of Masonite Corporation d/b/a Louisiana Millwork (hereafter

“Appellee”) against Service Door & Millwork, L.L.C. (hereafter “Service Door”)

and Ralph L. Fletcher (hereafter “Appellant”), in solido, in the amount of

$215,026.95 plus $64,598.84 in attorney fees. For the following reasons, we

affirm and award additional attorney fees.

FACTS AND PROCEDURAL HISTORY

Service Door was a limited liability company established in Louisiana on

August 15, 2001. Thereafter, an application for credit was submitted to Louisiana

Millwork by Service Door on August 24, 2001. Louisiana Millwork began

providing manufacturing, loading, and delivery services and building materials to

Service Door. After performance of the services and delivery of the materials,

Service Door was periodically invoiced and made periodic payments. In 2003,

Masonite Corporation purchased Louisiana Millwork and refused to provide

further materials without the personal guaranties of the debts of Service Door by its

three members, Edgar S. Milton, IV, (hereafter “Milton”), Michael S. Marks

(hereafter “Marks”), and Appellant. Thereafter, on July 25, 2003, Louisiana

Millwork received a document entitled “Personal Guaranty,” purportedly bearing

the signature of Appellant. The document contained the following:

In order to induce Louisiana Millwork, LLC, a Louisiana
limited liability company (“LMW”) to enter into an agreement to
allow purchases on account (the “Agreement”) with _____________
(“Purchaser”), ______________ ([“]Guarantor”) hereby makes the
following guaranty, indemnification and agreements with and in favor
of LMW:

The document was received by Appellee with the blanks designated for the names

of the purchaser and guarantor remaining empty. Louisiana Millwork was

subsequently merged into Masonite Corporation in 2005.

When Service Door failed to make payments, Appellee made demand by

certified mail on August 25, 2005, pursuant to La.R.S. 9:2781. No payment was

tendered. Thereafter, Appellee filed suit against Service Door and its three

partners, Milton, Marks, and Appellant, alleging all three members had provided

personal guaranties on behalf of Service Door in favor of Appellee.

Milton and Marks did not dispute that they had agreed to be personally

obligated, but were discharged in bankruptcy prior to trial. The personal guaranty

document on which Appellee relies bears only a stamp of Appellant’s signature;

expert testimony established that his name was not actually his written signature.

In his answer to Appellee’s petition on open account, Appellant denied that he

signed, affixed, or authorized his signature to be affixed on the personal guaranty.

Service Door and Appellant filed a reconventional demand and third-party claim

against Appellee and its general manager, Robert W. McBride (hereafter “Mr.

McBride”), alleging Appellee and McBride breached an oral contract to extend

credit. In response, Appellee and McBride filed a peremptory exception of no

cause of action, which was granted by the trial court.

On August 18, 2011, Appellant filed a motion for summary judgment,

asserting that there was no contract between Appellee and Service Door, that

Appellant did not sign or authenticate the personal guaranty in favor of Appellee,

which he alleged was incomplete and undated, and that Appellee committed fraud

in filing suit based upon a document submitted to it with blanks and later

completed by hand. On April 13, 2012, Appellant’s motion for summary judgment

was denied.
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The case was submitted to a trial by jury on September 4, 2012. On

September 6, 2012, the jury returned a verdict in favor of Appellee in the amount

of $215,026.95, which included the principal balance of $136,092.95, plus

conventional interest at 1%. The jury also found that Appellant personally

guaranteed the open account obligation of Service Door to Appellee. On March 14,

2013, the trial court ordered that the verdict of the jury be made the judgment of

the court, and awarded attorney fees in the amount of $64,598.84 to Appellee. It is

from this judgment that the instant appeal arises. Appellee answered the appeal

and requested additional attorney fees for the defense of the appeal.

ASSIGNMENTS OF ERROR

In his appeal, Appellant asserts that the jury erred in finding that:

1. Appellant executed, authorized, or adopted the stamped signature on the

personal guaranty; and

2. the personal guaranty was enforceable when Appellant’s signature was

stamped on an incomplete personal guaranty form which did not contain

the name of the principal debtor when it was stamped with Appellant’s

signature.

STANDARD OF REVIEW

Findings of fact are subject to review for manifest error. Rosell v. ESCO,

549 So.2d 840 (La.1989). “In applying the manifest error-clearly wrong standard,

we must determine not whether the jury was right or wrong, but whether its

conclusion as factfinder was a reasonable one.” Billings v. State ex rel. Dep’t of

Transp. & Dev., 01-0131, p. 11 (La.App. 3 Cir. 6/13/01), 826 So.2d 1133, 1140

(citing Mart v. Hill, 505 So.2d 1120 (La.1987)). To warrant reversal of a jury’s

findings of fact, after reviewing the record in its entirety, an appellate court must

first find that a reasonable factual basis does not exist for the finding, and, second,
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determine that the record establishes that the finding is clearly wrong or manifestly

erroneous. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880

(La.1993). “[W]here there is conflict in the testimony, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review,

even though the appellate court may feel that its own evaluations and inferences

are as reasonable.” Ortego v. Jurgelsky, 98-1622, p. 2 (La.App. 3 Cir. 3/31/99),

732 So.2d 683, 685.

ASSIGNMENT OF ERROR NUMBER ONE

In brief, Appellant asserts that the signature on the personal guaranty at issue

is a stamp of his signature; this fact is not in dispute. However, Appellant asserts

that he neither stamped nor authorized anyone to stamp his signature on the

personal guaranty at issue. After reviewing the record, we find ample evidence to

support the jury’s conclusion that Appellant personally guaranteed the debt of

Service Door.

In Rainey v. Entergy Gulf States, Inc., 09-572, pp. 15-16 (La. 3/16/10), 35

So.3d 215, 225-26, the Louisiana Supreme Court explained:

Written acts are of two kinds, authentic acts and acts under private
signature. 5 SAUL LITVINOFF, LOUISIANA CIVIL LAW
TREATISE—THE LAW OF OBLIGATIONS § 12.11 (2d
ed.2001). . . . An act under private signature is one executed by the
parties themselves without intervention of a public officer such as a
notary public. LITVINOFF, § 12.26. “An act under private signature
need not be written by the parties, but must be signed by them.” La.
Civ.Code art. 1837. The signature of the parties is the only element
the law requires to give evidentiary weight to an act privately
executed by the parties. LITVINOFF, § 12.28. However, and of great
significance to the matter before this Court, “where a private act,
rather than an authentic one, is concerned, a party’s signature need not
be handwritten, and a printed or electronically reproduced facsimile
thereof may suffice, as is the case with contracts made in large
numbers by one of the parties and executed in printed forms.”
LITVINOFF, § 12.28.

Furthermore, where a statute requires a signature, a printed or
typed “signature” is sufficient provided the signature was authorized
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and intended to constitute the signature. Reno v. Travelers Home and
Marine Ins. Co., 02-2637, p. 4 (La. Ct.App. 1 Cir. 11/7/03), 867 So.2d
751, 754 (citing Commerce Loan Co., Inc. v. Howard, 82 So.2d 487,
488 (La.App.Orl.1955), writ denied, (La.1955)); Fleming v. JE Merit
Constructors, Inc., 07-926, p. 11 (La. Ct.App. 1 Cir. 3/29/08), 985
So.2d 141, 147. In the absence of a statute prescribing the method of
affixing a signature, it may be written by hand, printed, stamped,
typewritten, engraved, or by various other means. Reno, 02-2637 at p.
4, 867 So.2d at 754; Fleming, 07–926 at p. 11, 985 So.2d at 147.

Additionally, as the second circuit explained in Fleet Fuel, Inc. v. Mynex, Inc.,

38,696, pp. 9-10 (La.App. 2 Cir. 6/23/04), 877 So.2d 234, 240:

The Louisiana Civil Code provides that . . . a party against whom an
act under private signature is asserted must acknowledge his signature
or deny that it is his. La. C.C. art. 1838. When the signature is denied,
the Civil Code further provides that any means of proof may be used
to establish that the signature belongs to the denying party. Id. Our
jurisprudence has established that these means include, but are not
limited to, the testimony of witnesses who saw the party write the
signature in controversy, or testimony by witnesses who know the
signature of the party, or by comparison of signatures. In the last
instance, when a signature has been denied, the court may examine
and compare the denied signature with other admitted signatures of
the denying party. Hardcastle v. Ravia, 14 So.2d 295 (La.App. 1
Cir.1943). See also, Saul Litvinoff, 5 La. Civ. L. Treatise: The Law of
Obligations, (2d ed.2001) § 12.31.

Clearly, the personal guaranty at issue is not an authentic act, as it was not

executed in the presence of a notary. In light of the well-established law

concerning signatures affixed to acts under private signature, we find that the

stamped “signature” of Appellant is sufficient if it was authorized and intended to

constitute a signature. Therefore, we must turn to whether Appellant’s stamped

signature was authorized and intended to be his signature.

The record reveals that Appellant, who is an attorney, had a stamp of his

signature. In the course of his testimony, he conceded that the stamp had been

used to sign documents filed into court record. In fact, he conceded that it had

been used to sign documents filed into court record on July 23, 2003, a mere two

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days prior to the date the guaranty was stamped. This evidence supports the

conclusion that Appellant intended that his stamped name constitute his signature.

Toni Stewart (hereafter “Ms. Stewart”), a certified public accountant, was

employed by Appellee as an accounting manager. She testified regarding the

agreement between Service Door and Appellant and the circumstances leading up

to the instant suit whereby Service Door became behind in paying the invoiced

amounts. She testified that she personally met with Appellant around July 2003 to

“discuss [the] credit problems” and suggested “[Appellee] close the account.” Ms.

Stewart further testified that it was Appellant who suggested that personal

guaranties be executed by Milton, Marks, and Appellant instead of closing the

account. Finally, Ms. Stewart testified that she received a faxed copy of the signed

guaranty, but she “was not happy with that. So, we were picking up the originals.

We sent [Mr.] McBride, who was the president of the company at the time, to go

by Appellant’s office and pick it up.” Thereafter, “[Mr. McBride] picked [the

stamped guaranty] up from [Appellant’s] office,” but she did not know who

stamped Appellant’s signature or filled in the incomplete portions.

Mr. McBride testified that when Service Door’s account became behind,

“[Appellee] had to have a personal guaranty.” He further testified that Appellant

had previously refused to sign a guaranty, but that, at a meeting with Appellant,

Milton, Marks, and Toni Stewart, “[Appellant] agreed to give us a personal

guaranty because we would not continue to sell him product.” Mr. McBride

testified that Appellant later told him to pick up the personal guaranty at

Appellant’s law office. While traveling to make sales, Mr. McBride stopped at

Appellant’s office late in the afternoon, where a woman at the office gave him the

stamped document. Thereafter, Mr. McBride spoke with Appellant “a number of

times” during which the personal guaranty was discussed.
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Dennis Markwood, Appellee’s general manager, testified that he could not

specifically recall seeing the personal guaranty bearing Appellant’s stamped

signature, but that he could recall specifics of a meeting that occurred with

Appellant, Milton, and McBride because “there was a lot more at stake.” He

explained that, at the time, Service Door was “in deep trouble” and owed

approximately $300,000.00 to Appellee. Mr. Markwood testified that, when Mr.

McBride mentioned Appellant’s personal guaranty, “[Appellant’s] exact statement

was that the building and property were worth between $800,000[.00] and

$1,000,000[.00] and [Appellant] had more than enough equity in the building to

pay off all the debt he owed . . . . He said he had the equity in the building to cover

the debt that they had at Service Door.”

In support of his argument that the jury manifestly erred in finding him

personally liable for the debt of Service Door, Appellant directs this court to his

own testimony that he had never personally guaranteed the debts of Service Door

to any other vendors, that he did not authorize anyone to stamp his signature on

any financial documents, like the document at issue in this case, and that he was

unaware that the personal guaranty had been stamped with his signature prior to

receiving the demand letter sent by Appellee. Although Appellant may have

refused to guaranty the debts of Service Door to any other vendors, this does not

refute the conclusion that he guranteed the debt of Service Door to the vendor in

the instant matter. Moreover, his testimony that he did not authorize anyone to

stamp his signature on the guaranty conflicts with the testimonies of Ms. Stewart

and Mr. McBride that Appellant agreed to personally guaranty the debts of Service

Door to Appellee. Additionally, Appellant’s testimony that he was unaware of the

guaranty until he received the demand letter from Appellee conflicts with the

testimony of Mr. McBride that he and Appellant discussed the guaranty on “a
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number of times” after Mr. McBride had picked it up from Appellant’s office. It

also conflicts with the testimony of Mr. Markwood, who testified that when the

personal guaranty was discussed, Appellant mentioned he was financially able to

pay the entire debt of Service Door.

The record reveals no manifest error in the jury verdict in favor of Appellee.

Multiple witnesses testified that Appellant agreed to personally guaranty the open

account debt of Service Door and that they recalled discussing the personal

guaranty with Appellant after it had been received by Appellee. The jury weighed

the credibility of the witnesses, balanced the conflicting testimony, and made its

conclusions as fact finder, as it was entitled to do. The record reveals that

Appellant did, in fact, have a stamp of his signature, and that it was used regularly

to sign pleadings. Further, a review of the record reveals ample testimony upon

which a fact finder could have found that Appellant authorized his signature to be

stamped on the personal guaranty at issue. Thus, the record reveals a reasonable

basis for the verdict. Having found no manifest error, we affirm the jury’s verdict.

ASSIGNMENT OF ERROR NUMBER TWO

In brief, Appellant asserts that, in the alternative, if the stamped signature

was authorized, the jury erred in finding him bound by the personal guaranty

because it did not identify the principal debtor when initially received by Appellee.

Appellant relies on the testimony of Ms. Stewart that she initially received the

personal guaranty by fax and from Mr. McBride bearing only the signature of

Appellant. After reviewing the record, we find this assignment of error is without

merit.

In Stanfield v. White, 535 So.2d 753, 756 (La.App. 2 Cir.), writ denied, 536

So.2d 1199 (La.1988), the second circuit explained: “The filling in of a blank in a

written instrument presents a question of authority and not one of alteration.” “In
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particular, the mere fact that a contract contains blanks when signed does not make

it invalid, as blanks may be filled in pursuant to parol authority or implied

authority, so long as there is a meeting of the minds relative to the agreement

itself.” 3B C.J.S. Alteration of Instruments § 99 (footnotes omitted). One who

receives a signed contract containing blanks has implied authority to fill in blanks

according to the intent of the parties. See Ken Edwards Real Estate, Inc. v.

Molero’s Marina, Inc., 355 So.2d 1067 (La.App. 4 Cir. 1978); see also J.H.

Landworks, LLC v. T. Lariviere Equip. & Excavation, Inc., No. 2:11-CV-00488-

MHW, 2012 WL 4758079 (D. Idaho Oct. 5, 2012). “Whoever signs or executes an

instrument bearing blanks and later contests the correctness of the completion of

the blanks, bears the burden of proving by a preponderance of the evidence that the

document was completed in a manner not agreed to between the parties.” Trinity

Universal Ins. Co. v. Lambert, 176 So.2d 651, 657 (La.App. 1 Cir.), writ refused,

248 La. 413, 179 So.2d 15 (1965).

Ms. Stewart testified that she initially received a copy of the personal

guaranty by fax bearing only the signature of Appellant; the blank lines where the

names of the debtor and guarantor were to be inserted remained blank. This fact is

not in dispute. Ms. Stewart could not ascertain whether the document came from

Appellant’s fax or Service Door’s fax because the document bore the fax time

stamp of both. Ms. Stewart further testified that, later, when Mr. McBride picked

up the original from Appellant’s office, it still bore only Appellant’s signature and

the blanks designated to insert the name of the purchaser and the guarantor

remained blank. Ms. Stewart also testified that she later received the same

guaranty by fax from Service Door bearing the signature of Appellant, with the

blanks completed; thus, it identified the purchaser as Service Door and the

guarantor as Appellant. She testified that her office did not complete the blanks.
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Ms. Stewart testified that she also received by fax from Service Door the personal

guaranties bearing the signatures of Milton and Marks with the blanks reserved for

insertion of the names of the purchaser and guarantor completed. Again, she

testified that her office did not complete the blanks.

The record contains a letter, bearing the signature of Appellant, on Service

Door letterhead dated June 27, 2003, just a few weeks before Appellee received the

personal guaranty bearing the stamped signature of Appellant. Above the Service

Door letterhead, the fax time stamp, also dated June 27, 2003, indicates the

document was faxed from Appellant’s law office at 13:50. Thereafter, on July 1,

2003 at 13:57, Service Door faxed the letter to Appellee, as indicated by a second

fax time stamp. The document bearing the title “FAX COVER SHEET” was

addressed to “Toni” from “Ralph Fletcher.” Although this evidence does not

indicate who actually signed or stamped the signature of Appellant on the letter, it

does indicate that Appellant had a relationship with Service Door in which he

would fax documents to Service Door, which would then forward the documents to

Appellee by fax.

The record establishes that Appellee did receive a personal guaranty bearing

the stamped signature of Appellant, with all of the blanks completed and clearly

identifying the principal debtor and the guarantor, after Appellee received one

executed in blank. Having already determined that the jury could have reasonably

concluded that Appellant authorized his signature to be stamped on the guaranty

and considering that it is not in dispute that the guaranty was initially received by

Appellee in blank, we must now decide whether the evidence is such that the jury

could have reasonably concluded that Appellant had granted the authority to

complete the document.

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The fax time stamps on the completed personal guaranty indicate that the

document was faxed, first, from Appellant’s law office to Service Door and, then,

from Service Door to Appellee. Ms. Stewart testified that her office received the

executed and completed personal guaranty by fax from Service Door after she had

initially received it in blank and that her office did not insert the names of the

purchaser and guarantor into any of the personal guaranties. The jury was entitled

to rely on this evidence, and it supports the conclusion that the blanks were

completed by someone at Service Door prior to being faxed to Appellee. Further,

the evidence indicates it was not unusual for Appellant to fax documents to Service

Door for forwarding to Appellee. In light of Appellee’s later receipt of the

executed and completed personal guaranty from Service Door, Appellant’s history

of faxing documents to Service Door for further forwarding to Appellee, and

Appellant’s part ownership of Service Door, the jury reasonably could have

concluded that Appellant had granted the authority to complete the document by

inserting of the names of the principal debtor and guarantor into the blanks. Thus,

we find this assignment of error to lack merit.

ATTORNEY FEES

In its answer to the appeal, Appellee has requested additional attorney fees

for work on appeal. “An increase in attorney’s fees is awarded on appeal when the

defendant appeals, obtains no relief, and the appeal has necessitated more work on

the part of the plaintiff’s attorney, provided that the plaintiff requests such an

increase.” McKelvey v. City of DeQuincy, 07–604, pp. 11–12 (La.App. 3 Cir.

11/14/07), 970 So.2d 682, 690. We have affirmed the judgment of the trial court.

We find that an additional award of $5,000.00 is appropriate to compensate for the

work performed on this appeal. Thus, we award an additional $5,000.00 in

attorney fees for the defense of the appeal.
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CONCLUSION

The record reveals no manifest error in the jury verdict in favor of Appellee.

The jury weighed the credibility of the witnesses, balanced the conflicting

testimony, and made its conclusions as fact finder, as it was entitled to do. A

review of the record reveals ample testimony upon which a fact finder could have

found that Appellant authorized his signature to be stamped on the personal

guaranty at issue. Additionally, the record reveals evidence on which the jury

could have reasonably relied to conclude that the executed document was

completed with authority by someone at Service Door. Thus, the record reveals a

reasonable basis for the verdict. Having found no manifest error, we affirm the

jury’s verdict. We award an additional $5,000.00 in attorney fees to Appellee,

Masonite Corporation d/b/a Louisiana Millwork Louisiana. Costs of this appeal

are assessed to Appellant, Ralph L. Fletcher.

AFFIRMED.

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