Dealer Services South, Inc. v. Martin Automotive Group, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-195

DEALER SERVICES SOUTH, INC.

VERSUS

MARTIN AUTOMOTIVE GROUP, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2018-5417
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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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

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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.
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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
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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
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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

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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

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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.
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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
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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
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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.

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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.

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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.”

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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):
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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.

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