Abernathy v. Weldon, Williams and Lick, Inc.

*ADVREP*CA3*                 EN BANC









MARK ABERNATHY
                     APPELLANT

V.


WELDON, WILLIAMS, AND LICK,
INC.
                      APPELLEE



CA 95-309

                                                    JUNE 19, 1996


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, [CIV93-2151]


HONORABLE MARION A. HUMPHREY,
CIRCUIT JUDGE


AFFIRMED





                     John B. Robbins, Judge.

     On June 4, 1992, August in Arkansas, Inc., placed an order for
"souvenir style" tickets with appellee Weldon, Williams, and Lick,
Inc. (Weldon), in the amount of $44,766.65.  August in Arkansas
wanted to purchase the tickets on credit, but Weldon would not
furnish the tickets without a personal guaranty of payment.  Such
a guaranty was received by Weldon, which allegedly bore the
signature of August in Arkansas founder Mark Abernathy.  After
August in Arkansas failed to pay the amount due on the tickets,
Weldon sued Mr. Abernathy for the debt.  Mr. Abernathy denied ever
making or signing the personal guaranty.  However, after a bench
trial, judgment was entered against Mr. Abernathy in the amount of
$54,350.43.  This amount included the purchase price, interest, and
attorney's fees.  Mr. Abernathy now appeals.
     For reversal, Mr. Abernathy argues that the trial court
erroneously excluded the testimony of two of his witnesses.  He
also argues that the trial court's decision was erroneous because
its finding that the signature on the guaranty was his was clearly
against the preponderance of the evidence.  Finally, Mr. Abernathy
asserts that the trial court erred as a matter of law in ruling
that, even if the signature on the guaranty was not his, he had
ratified the personal guaranty.  We find no error and affirm.
     Tina Solesbee Clark was the first to testify at trial on
behalf of Weldon.  She stated that, in June 1992, she was employed
with Weldon as a customer services representative.  Ms. Clark
testified that, during this time, she was involved in negotiations
with Brigette Williams, a representative of August in Arkansas. 
According to Ms. Clark, Ms. Williams placed an order for tickets
and requested that the purchase be made on credit.  However,
Weldon's president, Jim Walcott, denied August in Arkansas' credit
application, and advised Ms. Clark to tell Ms. Williams that the
tickets could not be provided on credit unless a personal guaranty
was provided by Mr. Abernathy.  After this information was relayed
to Ms. Williams, she faxed to Weldon a document that purported to
be a guaranty signed by Mr. Abernathy.  This guaranty stated, "I,
Mark Abernathy, am the founder and president of August in Arkansas
and present myself as guarantor for payment of August in Arkansas
festival tickets money."
     Terry Vaughan, credit manager for Weldon, testified next.  She
asserted that she received the fax which purported to be the
personal guaranty of Mr. Abernathy.  Ms. Vaughan stated that, upon
consideration of this document, Weldon decided to extend credit. 
After the account became delinquent, Ms. Vaughan had a telephone
conversation with Mr. Abernathy.  According to Ms. Vaughan,
this occurred on August 26, 1992, and during the conversation
Mr. Abernathy "told me that since he had signed a personal
guaranty, that we would be at the top of his list for payment, and
he would probably make one the following week."  However, no such
payment was ever received.
     Mr. Walcott also testified that he talked with Mr. Abernathy
by telephone when the account became delinquent.  He stated that,
during a conversation on November 13, 1992, Mr. Abernathy
acknowledged that he had signed a personal guaranty and was
personally liable for the indebtedness.  Mr. Walcott further stated
that Mr. Abernathy convinced him that everything was being done
to make sure that the payment would be made.  Although no payment
terms were arranged during the conversation, Mr. Walcott stated
that Mr. Abernathy's representations convinced him that
Mr. Abernathy was going to make the necessary payment.
     Mr. Abernathy testified on his own behalf, and he denied
having signed the guaranty or giving anyone else permission to do
so.  He reasoned that the purported guaranty that was faxed to
Weldon must have been a forgery, and that he knew nothing about any
supposed guaranty until long after the festival.  Mr. Abernathy
acknowledged speaking with Mr. Walcott in November 1992, but said
that he never told Mr. Walcott that he had signed the document or
would guarantee the debt.  Mr. Abernathy testified that he had
never seen or talked with anyone from Weldon prior to the festival,
and that he had nothing to do with the credit extended for the
purchase of the tickets.
     Mr. Abernathy's first argument on appeal is that the trial
court erred in excluding the testimony of two of his witnesses. 
Only four days before the trial was scheduled to begin,
Mr. Abernathy supplemented his answers to Weldon's interrogatories,
and this supplement contained the names of two additional
witnesses, Jackie Michelle and Thomas Vastrick, who were to testify
on his behalf.  Before the trial began on June 28, 1994, Weldon
orally moved in limine to bar the testimony of these two witnesses
because their names were not made available in a timely fashion to
allow for adequate preparation.  Mr. Abernathy responded that
Weldon was given adequate notice of the witnesses.  The trial court
agreed and denied Weldon's motion in limine.  However, when Weldon
renewed its objection later in the trial, the trial court decided
to exclude the testimony of the witnesses because the supplement
to Mr. Abernathy's answers to interrogatories was not verified. 
The supplement was signed by Mr. Abernathy's counsel, but not by
Mr. Abernathy.  Consequently, the trial court refused to allow the
witnesses to testify, and Mr. Abernathy now takes exception to that
ruling.
     Mr. Abernathy asserts that, while he did not sign the
supplement to his answers, this was only a technical error and
should not have precluded the witnesses' testimony, particularly in
light of the fact that at trial he testified under oath that he
approved of the supplement.  Mr. Abernathy refers to Rule 37 of the
Arkansas Rules of Civil Procedure, which provides certain sanctions
for discovery violations.  He acknowledges that under the rule, a
court may refuse to allow the presentation of certain evidence if
it finds that a party has failed to comply with a discovery order
or answer interrogatories.  However, Mr. Abernathy contends that he
answered the interrogatories in a timely fashion, as the trial
court originally found.  He asserts that the sanctions imposed by
the court, which were based solely on the fact that his pleading
was unverified, placed form over substance and were unjustified
under the circumstances.
     Mr. Abernathy further asserts that, had the testimony of the
two excluded witnesses been admitted, the outcome of the trial may
have been different because their testimony was essential to
his defense.  An affidavit made by one of the witnesses, Thomas
Vastrick, a handwriting expert, was attached to Mr. Abernathy's
supplement to his answers.  In the affidavit, the expert stated
that his analysis of the signature on the purported guaranty, which
was faxed to Weldon, was inconclusive.  He indicated that, while
the signature was similar to that of Mr. Abernathy, he could not
rule out forgery or a transfer of the signature from another
document because he did not have a copy of the original guaranty. 
Mr. Abernathy asserts that this evidence and the testimony of the
other witness, Jackie Michelle, would have been beneficial to his
case, although he does not indicate what the substance of
Michelle's testimony would have been.
     With respect to Jackie Michelle, we hold that Mr. Abernathy's
first argument is precluded from our review because he failed to
make a proffer of her testimony at trial.  Arkansas Rule of
Evidence 103(a)(2) provides that error may not be predicated upon
a ruling which excludes evidence unless a substantial right of the
party is affected and the "substance of the evidence was made known
to the court by offer or was apparent from the context within which
questions were asked."  When a party fails to make a proffer of
testimony, he may not take issue with its exclusion on appeal. 
Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995);
Garner v. Kees, 312 Ark. 251, 848 S.W.2d 423 (1993).  In the case
at bar, it is undisputed that no offer of proof was made regarding
the excluded testimony of Jackie Michelle.  Therefore, any argument
about this exclusion was not preserved for our review.
     As to the excluded testimony of Thomas Vastrick, we believe
that the substance of his testimony was apparent because of his
affidavit that was attached to Mr. Abernathy's supplemental answers
to interrogatories.  However, the gist of his testimony was that he
could not determine whether the signature on the guaranty was or
was not a forgery.  Consequently, even if the trial court erred in
excluding this testimony, Mr. Abernathy has failed to demonstrate
prejudice.  It is no longer presumed that error is prejudicial. 
Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350
(1988).
     Mr. Abernathy next contends that the trial court's finding
that the signature on the guaranty was his was clearly against
the preponderance of the evidence.  Prior to issuing its ruling,
the trial judge stated, "[t]he court believes that this is the
signature of Mr. Abernathy or someone has done a good job of
forging it."  Mr. Abernathy cites Rule 52(a) of the Arkansas Rules
of Civil Procedure as authority for the proposition that, after a
bench trial, a trial court's findings of fact should be set aside
when clearly against the preponderance of the evidence.  He asserts
that the trial court's ruling on this issue should be reversed
pursuant to the above rule.
     Although Mr. Abernathy denied signing the guaranty and there
were no witnesses to his signing the document, we cannot find that
the trial court's ruling on this issue was clearly against the
preponderance of the evidence.  It is undisputed that Mr. Abernathy
was director of development for August in Arkansas and that Weldon
would not provide the tickets absent a personal guaranty agreement
signed by Mr. Abernathy.  While the original guaranty could not be
produced at trial, the trial court was presented with a faxed copy
which purported to contain Mr. Abernathy's signature.  The trial
court was able to compare this signature to the signatures on
various pleadings filed by Mr. Abernathy in the case, and
determined that the signatures matched.  From this information,
we believe that the trial court could reasonably conclude that
Mr. Abernathy signed the guaranty agreement.
     Mr. Abernathy's remaining argument is that the trial court
erred in finding that he ratified the personal guaranty agreement
through his subsequent telephone conversations with Ms. Vaughan and
Mr. Walcott.  Specifically, Mr. Abernathy asserts that, absent
the finding that he signed the guaranty, he could not be held
accountable for the debt because there was insufficient evidence
that he ratified a forgery.
     We find Mr. Abernathy's final argument to be misplaced.  The
trial court never made a finding that he ratified a forgery by his
subsequent actions.  Rather, the trial court stated, "[t]he court
further believes that whatever is represented in this Exhibit A
was adopted by Mr. Abernathy in subsequent conversations with
Mr. Walcott and Ms. Vaughan."  This finding was one that the trial
court apparently considered in strengthening its opinion that
Mr. Abernathy actually signed the guaranty and intended to be bound
by it.  The trial court believed testimony to the effect that,
after the festival, Mr. Abernathy represented that he signed and
was bound by a guaranty to cover the indebtedness from the tickets. 
This is further evidence that Mr. Abernathy was the individual who
signed the guaranty agreement.  The trial court never found that
the signature on the guaranty was a forgery or was not that of
Mr. Abernathy, or that any ratification took place in the event
that the signature was not his.  Thus, we reject his final
argument.
     Affirmed.
     Jennings, C.J., Mayfield, and Stroud, JJ., agree.
     Cooper, J., dissents.

*ADVREP*CA3-A*
                                  EN BANC



                                        CA95-309

                                                          June 19, 1996


MARK ABERNATHY                          APPEAL FROM THE PULASKI COUNTY
          APPELLANT                     CIRCUIT COURT
                                        [NO. CIV93-2151]

VS.                                     HON. MARION A. HUMPHREY,
                                        CIRCUIT JUDGE

WELDON, WILLIAMS, AND                   DISSENTING OPINION
LICK, INC.







                          James R. Cooper, Judge.


     I dissent from the majority opinion because I do not think it
was harmless error to exclude the testimony of Thomas Vastrick, the
handwriting expert.  The appellant's defense at trial was based on
his contention that the signature on the faxed guaranty was a
forgery.  The appellant denied signing the guaranty agreement, and
there were no witnesses to his signing the document.  He further
denied giving anyone permission to sign the document on his behalf.
After analyzing the signature on the purported guaranty, Mr.
Vastrick was not able to rule out that the signature was a forgery
or a transfer of the signature from another document.  
     There was no other expert testimony before the trier of fact
evaluating the authenticity of the signature.  Thus, the testimony
was not cumulative, and only speculation could lead to the
conclusion that the appellant was not prejudiced by the exclusion
of this evidence.   I fail to see how the appellant was not
prejudiced when the excluded evidence pertained to his defense and
to the very basis on which the appellant was found liable for the
indebtedness.  Therefore, I think a substantial right of the
appellant was affected by the exclusion of the testimony, and I
would reverse and remand for a new trial.  See Ark. R. Evid.
103(a).