George P. Bane, Inc. v. Joe Ballard ( 2021 )

Affirm and Opinion Filed March 22, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01459-CV
GEORGE P. BANE, INC., Appellant
V.
JOE BALLARD, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-07758
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Myers
George P. Bane, Inc. appeals the trial court’s judgment that it take nothing
following a trial before the court on its suit against Joe Ballard for breach of a
guaranty agreement. Appellant brings two issues on appeal contending it proved its
cause of action for breach of a guaranty agreement and that Ballard failed to prove
his defense of forgery. Ballard brings a motion to dismiss the appeal arguing
appellant lacks standing. We deny the motion to dismiss, and we affirm the trial
court’s judgment.
BACKGROUND
In 2010, Ballard and Ronnie Shadowen formed Affordable Sand & Materials,
LLC to excavate and sell sand. Shadowen had the knowhow to run the day-to-day
operations, and Ballard provided the capital and good credit to fund and obtain credit
for Affordable Sand.
In 2011, Affordable Sand needed a replacement tractor, and Ballard and
Shadowen decided to lease with option to purchase a tractor from Bane Machinery,
Inc. On March 11, 2011, Shadowen went to Bane Machinery, Inc.’s office to discuss
the transaction with George Bane, the president of Bane Machinery, Inc. Ballard
was not present at the meeting, but Bane testified that Shadowen told Bane he was
calling Ballard on his cell phone, and it was Bane’s understanding that Shadowen
was on the phone with Ballard during the meeting.
Bane required Shadowen and Ballard to complete a credit application form
before extending credit to Affordable Sand to acquire the tractor. The credit
application form was headed “George P. Bane, Inc.” The application required
Shadowen and Ballard’s signatures as owners of Affordable Sand and Ballard’s
signature as the individual guarantor. The credit application was faxed to Ballard
for his signatures. The document was faxed back to Bane’s office with signatures
purporting to be Ballard’s as an owner of Affordable Sand and as guarantor of the
credit extended to Affordable Sand.
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The completed credit application included Ballard’s social security number,
driver’s license number, and credit references including the name of the Bank
Ballard used, the bank officer Ballard dealt with, and the names of other businesses
with which Ballard had done business. Ballard confirmed at trial that the
information on the credit application was correct.
The credit application provided a line of credit to Affordable Sand for the
tractor as well as for future purchases. The credit application set forth the terms of
the line of credit: payment due on the tenth of the month following the month of
purchase and past due accounts subject to a monthly finance charge of 1-1/2 percent.
For the first few years, Affordable Sand was able to pay its bills for the items
leased and purchased from Bane Machinery, Inc., including that first tractor, but it
later was not able to pay for its subsequent purchases and leases. By the time of
trial, Affordable Sand owed $256,294.87 for unpaid rentals, goods, services, and
interest.
Appellant sued Affordable Sand, Ballard, and Shadowen for breach of
contract and suit on a sworn account, and appellant sued Ballard for breach of
guaranty. Affordable Sand did not answer the suit, and the trial court rendered a
default judgment against it. Ballard filed a verified denial of the claims, and he
stated in the affidavit attached to the answer that he did not sign the credit application
or authorize anyone to sign for him. Ballard alleged in a supplemental answer that
the signatures of his name on the credit application were forgeries.
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The case was tried before the court. Ballard testified that he did not sign the
credit application and he did not authorize anyone to sign it on his behalf. Bane
testified that Ballard was not present in his office on March 11, 2011, and that he did
not see Ballard sign the credit application. Bane testified that he thought Shadowen
was on his cell phone with Ballard during the March 11 meeting.
Ballard testified that for the first two or three years of the business, he had
access to Affordable Sand’s bank statements, which he reviewed. He observed that
Affordable Sand made payments to Bane Machinery. After that first two or three
years, Affordable Sand changed banks or changed the password to its online account,
and Ballard was no longer able to access the company’s bank statements.
Shadowen testified that Ballard was on the phone with him during the meeting
with Bane and that he did not sign Ballard’s name. He also testified he did not know
or have access to Ballard’s social security number, driver’s license number, or credit
references. According to Shadowen, Ballard was “specifically aware of the line of
credit that the company opened up at Bane Machinery.” He also testified that
Affordable Sand paid off the debt for the tractor acquired in that first transaction.
The trial court found for Ballard and rendered judgment that appellant take
nothing on its claims against him. Appellant nonsuited its claims against Shadowen.
Appellant now appeals the judgment on its claims against Ballard.
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MOTION TO DISMISS
Ballard moves to dismiss this appeal on the ground that appellant lacks
standing. Standing is a constitutional prerequisite to suit, and it is a component of
subject-matter jurisdiction. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484
(Tex. 2018). Standing cannot be waived, and it may be raised for the first time on
appeal. Id.“In Texas, the standing doctrine requires a concrete injury to the plaintiff and
a real controversy between the parties that will be resolved by the court.” Id.(quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012)). There are
three elements to standing. First, the plaintiff must plead facts demonstrating that
the plaintiff has suffered the injury. Id. at 485. Second, the plaintiff’s alleged injury
must be “fairly traceable” to the defendant’s conduct. Id. Third, the plaintiff must
show a substantial likelihood that the requested relief will remedy the alleged injury.
Id. In this case, Ballard argues appellant failed to meet the first requirement,
pleading facts demonstrating the plaintiff suffered the alleged injury.
When standing is raised for the first time on appeal, the appellate court
construes the petition in favor of the plaintiff, and, if necessary, may review the
entire record to determine if any evidence supports standing. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
Appellant alleged the following:
Bane Machinery, Inc. is in the business of selling, renting and
maintaining heavy construction equipment. Those goods and services
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may be paid for up front, or they may be purchased on credit through
Bane Machinery, Inc.’s affiliated entity, George P. Bane, Inc. (both
Bane entities referred to jointly herein as “Bane” or “Bane
Machinery”). On March 11, 2011, Joe Ballard, on behalf of Affordable
Sand and Material LLC, signed a Credit Application in which Bane
Machinery agreed to extend an account of credit to Affordable Sand for
the purchase of goods and services from Bane Machinery.
....
Affordable Sand has breached the terms and conditions of its agreement
with Bane. Between July 17, 2015 and the Present, Bane provided
rentals, product sales and other professional services to Affordable
Sand as noted in Exhibit B, incorporated herein by reference, which
remain unpaid.
....
On March 11, 2011, Defendant Joe Ballard executed and delivered to
Bane a written guaranty by which he personally guaranteed Affordable
Sand’s account with Bane, including all amounts due and payable under
rental, purchase and service transactions between Affordable Sand and
Bane. . . .
As a result of the breach of the agreement by Defendant Affordable
Sand and as a result of the written guaranty executed and delivered to
Bane by Defendant Ballard, Ballard owes Bane, jointly and severally
with Affordable Sand, the sum of $176,639.92, as of May 10, 2017, for
unpaid amounts due . . . .
These pleadings allege that appellant extended credit to Affordable Sand for
purchases from Bane Machinery, Inc. Ballard guaranteed Affordable Sand’s
obligation on the extension of credit by appellant. Affordable Sand failed to pay the
amounts appellant loaned under the extension of credit. And Affordable Sand and
Ballard now owe appellant the unpaid amount of at least $176,639.92. These
pleadings allege an injury suffered by appellant.
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Ballard points out that all the invoices were from Bane Machinery, Inc., not
appellant. Regardless of the origin of the invoices, appellant alleged it extended
credit to Affordable Sand that Ballard guaranteed, that Affordable Sand drew on the
credit extended, and neither Affordable Sand, Shadowen, nor Ballard paid back the
money.
We conclude appellant’s pleadings demonstrate appellant’s standing to sue
Ballard, and we deny Ballard’s motion to dismiss the appeal.
STANDARD OF REVIEW
In its two issues, appellant contends the evidence is not legally and factually
sufficient to support the trial court’s findings.
A trial court’s findings of fact in a nonjury trial carry the same force and
dignity as a jury’s verdict on jury questions. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991); Kahn v. Imperial Airport, L.P., 308 S.W.3d 432, 436–
37 (Tex. App.—Dallas 2010, no pet.). When we review a trial court’s findings of
fact for legal and factual sufficiency, we use the same standards of review we use
when determining if sufficient evidence exists to support a jury’s answers. Catalina
v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Thornton v. Dobbs, 355 S.W.3d 312,
315 (Tex. App.—Dallas 2011, no pet.). When a trial court enters findings of fact
and conclusions of law, we “indulge every reasonable presumption in favor of the
findings and judgment of the trial court, and no presumption will be indulged against
the validity of the judgment.” Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d
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241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). In a bench trial, the
trial court judges the credibility of the witnesses, determines the weight of testimony,
and resolves conflicts and inconsistencies in the testimony. See Sw. Bell Media, Inc.
v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied).
As long as the evidence falls “within the zone of reasonable disagreement,” we will
not substitute our judgment for that of the fact-finder. See City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005).
In a legal sufficiency review, we view the evidence in the light most favorable
to the fact-finding, credit favorable evidence if a reasonable fact-finder could do so,
and disregard contrary evidence unless a reasonable fact-finder could not. See id. at
827. “[F]indings of fact bind an appellate court only if the findings are supported
by evidence of probative force.” Thomas v. Casale, 924 S.W.2d 433, 437 (Tex.
App.—Fort Worth 1996, writ denied). Unchallenged findings of fact are binding on
the appellate court “unless the contrary is established as a matter of law, or if there
is no evidence to support the finding.” Id. (quoting McGalliard v. Kuhlmann, 722
S.W.2d 694, 696 (Tex. 1986)). Anything more than a scintilla of evidence is legally
sufficient to support the finding. Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When the appellant attacks a
finding on which the appellant had the burden of proof in the trial court, the appellant
must demonstrate on appeal that the evidence establishes, as a matter of law, all vital
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facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001).
In a factual sufficiency review, we view all the evidence in a neutral light and
set aside the finding only if the finding is so contrary to the overwhelming weight of
the evidence such that the finding is clearly wrong and unjust. Dow Chem. Co., 46
S.W.3d at 242; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Morris
v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842 (Tex. App.—Dallas 2011, no pet.).
We review de novo a trial court’s conclusions of law. See BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). A conclusion of law is
erroneous as a matter of law if the factual findings supporting the conclusion are not
supported by any evidence. Wright Group Architects–Planners, P.L.L.C. v. Pierce,
343 S.W.3d 196, 205 (Tex. App.—Dallas 2011, no pet.). If we determine that the
trial court made an erroneous conclusion of law, we will not reverse if the trial court
rendered the proper judgment. See BMC Software, 83 S.W.3d at 794. We uphold
conclusions of law if the judgment can be sustained on any legal theory supported
by the evidence. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 769 (Tex.
App.—Corpus Christi–Edinburgh 2001, no pet.).
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BREACH OF GUARANTY
In its first issue, appellant contends, “There was more than a preponderance
of the evidence to prove [Ballard’s] breach . . . .”1 However, the question on appeal
is not whether a preponderance of the evidence supported appellant’s claim; the
question is whether appellant proved its claim as a matter of law or whether the trial
court’s findings that appellant did not prove its claim are so against the great weight
and preponderance of the evidence as to be clearly wrong and unjust.
The elements of a breach of contract cause of action are: (1) an offer, (2)
acceptance in strict compliance with the terms of the offer, (3) a meeting of the
minds, (4) each party’s consent to the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and binding. Levetz v. Sutton, 404 S.W.3d
798, 803 (Tex. App.—Dallas 2013, pet. denied). When the defendant does not file
a verified denial of a written instrument, he waives any challenge to the genuineness
of the execution of the instrument, and the document is received into evidence as
fully proved. See TEX. R. CIV. P. 93(7); Lissiak v. SW Loan OO, L.P., 499 S.W.3d
481, 494 (Tex. App.—Tyler 2016, no pet.); FFP Mkg. Co. v. Long Lane Master
Trust IV, 169 S.W.3d 402, 410 (Tex. App.—Fort Worth 2005, no pet.). When the
defendant files a verified denial, the burden is on the plaintiff to prove the
defendant’s execution of the document. See Decor Dimensionals, Inc. v. Smith, 494
1
This is the wording set forth in the “Argument” section of appellant’s brief. Appellant worded the
issue slightly differently but with the same meaning in the “Issues Presented” section of the brief: “Whether
Appellant met its burden of proof in establishing a breach of personal guarantee . . . .”
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S.W.2d 266, 268 (Tex. App.—Dallas 1973, no writ) (“[T]he presence of such a
sworn plea reinstates the burden of the party relying on the instrument to prove its
execution. Therefore, it was necessary for appellee to offer summary judgment
proof that the note had been executed by appellant or by its authority.”).
In this case, Ballard filed an answer with a verified denial and stated in the
affidavit attached to the answer that he did not sign the credit application, he did not
authorize anyone “to list my name on it,” and he had never seen it before being
served with appellant’s petition. Appellant did not assert any defect in the verified
denial. Therefore, appellant had the burden of proving Ballard executed the credit
application.
The only witnesses who testified at the trial were Bane, Ballard, and
Shadowen.2 Shadowen and Bane both testified they did not see Ballard sign the
document. Ballard testified he did not sign it, and he testified that the signatures on
the credit application were not his. The court found that Bane “did not see Ballard
sign or write on the Credit Application, and has no knowledge that Ballard either
signed or wrote on the Credit Application, or authorized anyone to sign or write
information for him.” The court also found that Ballard provided less than a scintilla
of evidence to explain how his personal information made its way onto the credit
application. These findings are supported by the evidence admitted at the trial.
2
Shadowen did not personally appear at the trial, but the parties presented excerpts from his deposition.
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The court concluded that because Ballard filed a verified denial of the
signature on the credit application,
Bane carries the burden of proving that the Credit Application was in
fact signed, authorized, or agreed to by Ballard. Bane cannot meet this
burden because Ballard testified unequivocally denied [sic] at trial that
the signature on the Credit Application is a forgery. Further, Bane’s
two witnesses testified neither has personal knowledge that Ballard did
in fact sign the document or agree to have anyone sign his name to the
Credit Application.
In the conclusions of law concerning appellant’s claims for breach of contract and
breach of guaranty, the court stated,
Bane has the burden of providing substantial facts and evidence that
show that Ballard did in fact sign the agreement and intended to be
bound to its terms and conditions. As stated above, Bane failed to carry
its burden to prove that Ballard signed or agreed to any aspect of the
Credit Application.
The court also found that several sample signatures of Ballard were admitted
into evidence, “and all of them appear different from Ballard’s purported signature
to the Credit Application.”
Appellant complains of this “Conclusion of Law” by the trial court: “Bane
cannot meet this burden [proving Ballard signed the guaranty on the credit
application] because Ballard testified unequivocally denied [sic] at trial that the
signature on the Credit Application is a forgery.” (emphasis added) Appellant
appears to argue the trial court ruled that a verified denial combined with the
defendant’s testimony denying execution of a contract, as a matter of law, bars the
plaintiff from recovering for breach of contract. We do not think that was the trial
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court’s meaning in this case. Instead, it appears the trial court’s conclusion was that
appellant had the burden of proving Ballard executed the guaranty on the credit
application, but the court concluded appellant failed to meet that burden because
Ballard testified he did not execute the application and the other witnesses testified
they had no personal knowledge of Ballard executing the application. Implicit in
that conclusion is the trial court’s determination to give greater weight to Ballard’s
testimony that he did not execute the credit application than to the inadequately
explained presence of Ballard’s personal information on the credit application.
Appellant appears to argue the great weight of the evidence supports its
position that Ballard signed the guaranty on the credit application and that the trial
court’s finding to the contrary was clearly wrong and unjust. Appellant points out
that Ballard’s role in Affordable Sand was to be the person on whose credit the
company would rely for large purchases. Ballard was also involved in the selection
of Bane Machinery, Inc. to supply the tractor. Shadowen testified he and Ballard
liked the tractor at Bane Machinery, Inc. because of its age, amount of use, and price.
Shadowen also testified he discussed the terms of the credit application with Ballard
and that Ballard agreed to those terms. However, Shadowen’s testimony is, at most,
that Ballard agreed to Affordable Sand obtaining a tractor in a lease/purchase
arrangement with Bane’s companies. Shadowen did not testify that they discussed
Ballard being the guarantor of Affordable Sand’s future purchases from Bane
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Machinery. It is also no evidence that Ballard signed the guaranty agreement on the
credit application.
Appellant also asserts that Bane and Shadowen testified “that someone
purporting to be the Appellee, who was called by the Appellee’s business partner at
the number he knows to be the Appellee’s cell phone, was on the telephone during
this transaction. This caller, who purported to be the Appellee, Joe Ballard, provided
his fax number and a litany of personal and financial information known only to the
Appellee, which the Appellee admits at trial to be entirely accurate information!”
(citations omitted) Bane testified that Shadowen made a phone call, which
Shadowen said was “to his money man,” and that he heard only one side of the
conversation. Shadowen testified he “was on the phone with him [Ballard]
throughout the whole process on the very first deal.” No one asked Ballard if he was
on the phone with Shadowen during the meeting. However, Ballard testified that
Shadowen never told him that Affordable Sand was applying for a line of credit. It
was up to the trial court to determine the weight to give to the testimony. The trial
court could determine that, even if Ballard was on the phone with Shadowen during
the meeting, it was not evidence that Ballard signed the guaranty on the credit
application, particularly in light of Ballard’s testimony that he did not know
Shadowen had applied for a line of credit for Affordable Sand.
The evidence also does not support appellant’s statement that Ballard
“provided his fax number”; the testimony showed that the fax containing the signed
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credit application and guaranty was sent to appellant’s office from Affordable
Sand’s office in Quinlan, Texas. Ballard denied that he was at Affordable Sand’s
office at the time and date of the meeting but stated he was at his lake house for his
granddaughter’s birthday; and Shadowen testified that Ballard was in Houston at the
time of the meeting. Thus, although the record shows the fax number for Affordable
Sand may have been provided, the record does not show that was Ballard’s fax
number or that Ballard had access to Affordable Sand’s fax machine on that date.
Appellant also points out that the credit application contained Ballard’s social
security number, driver’s license number, and credit references. Ballard testified
that Shadowen could have obtained his social security number from their application
to Chase Bank to open a bank account for Affordable Sand. He testified that
Shadowen would have known where he banked because he had given Shadowen
checks in the past. He said Shadowen might have been able to deduce Ballard’s
credit references from conversations with him. But Ballard had no explanation for
how Shadowen would have known his driver’s license number. The trial court found
Ballard provided “less than a scintilla of evidence offered of how, other than the
social security number, the information may have been obtained.” Ballard’s failure
to provide a non-speculative explanation for the presence of his personal information
on the credit application might be circumstantial evidence that would support a trial
court’s finding Ballard’s testimony not credible, but it is not conclusive evidence
that he signed the guaranty agreement. Nor does that evidence, standing alone or
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considered with Shadowen and Bane’s testimony, constitute such a great weight and
preponderance of the evidence as to make the court’s determination that appellant
failed to prove Ballard executed the credit application clearly wrong and unjust.
Appellant also points to Ballard’s testimony that he monitored Affordable
Sand’s bank statements and saw payments to Bane Machinery during the two or
three years he had access to the bank statements. However, this testimony is only
evidence that Ballard knew of the payments to Bane Machinery. It is not evidence
that he provided a personal guaranty of the credit extended to Affordable Sand for
all products and services it leased or purchased from Bane Machinery. When asked
if he understood that the payments shown on the bank statements related to the credit
account, Ballard testified, “I knew that they were payments for a tractor. I didn’t
know anything about a line of credit. . . . I realize that they were to Bane Machinery.
I don’t know anything about any credit account.”
Appellant argues that Ballard’s testimony that it was not his signature on the
credit application
amounts to nothing more than a declaration that he has no recollection
of the agreement. He doesn’t testify that his fingers were all broken so
he couldn’t lift a pen, or that his fax machine was down, or that he
discussed the agreement and declined to sign it, or any other basis for
an affirmative recollection that he did not sign. He merely has no
memory of it.
In support of this assertion, appellant cites the following exchange between
appellant’s attorney and Ballard:
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Q. That’s because you have no recollection of ever signing that credit
agreement. Right?
A. I never signed that credit agreement. That’s not my signature.
Appellant’s question asked Ballard if he merely had no memory of signing the
agreement. Ballard’s answer was not responsive to the question and made clear his
position was not merely a failure to recall having signed the document eight years
earlier. He denied having signed it and affirmatively asserted that the signature on
the guaranty of the credit application was not his.
Appellant also points to Ballard’s testimony that his signature varies from
signing to signing. Ballard confirmed that his two signatures on an invoice from
TNT Equipment were genuine. The signatures on the TNT invoice appear to vary
slightly from each other, but they also appear markedly different from the signatures
on the credit application. The trial court found, “A number of sample signatures
from before and after the 2011 credit application were admitted into evidence . . . ,
and all of them appear different from Ballard’s purported signature to the Credit
Application.”
Appellant argues that the trial court erred by comparing the signatures on the
credit application to signatures Ballard testified were genuine and that the court erred
by comparing those signatures to Shadowen’s signature. Ballard’s attorney offered
into evidence a page containing several signatures of Ballard’s that he stated were
genuine. Appellant did not object to the exhibit, and the trial court admitted it into
evidence. Both appellant’s attorney and Ballard’s attorney questioned Ballard about
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his signature and how it varied from signing to signing and whether those differed
significantly from the signatures on the credit application. The trial court found the
sample signatures appeared different from the purported signatures on the credit
application. On appeal, appellant states, “it is long established in Texas that lay
testimony comparing signature samples has no probative value at all where the
witness is not shown to have unique knowledge of both signatories’ signatures,”
citing Hanley v. Gandy, 28 Tex. 211 (1866), in support of this statement. See also
Abeel v. Weil, 283 S.W. 769, 771 (Tex. 1926) (“Before a witness is qualified, or, in
other words, competent, to testify to his opinion or belief that a particular signature
presented to him is the genuine signature of another, such witness must be
acquainted with the signature or handwriting of such other person. Such
acquaintance is not presumed, but must be shown by evidence.”).
Because appellant did not object to the evidence comparing Ballard’s
signatures, appellant has not preserved for appellate review any error from the
admission of this evidence. TEX. R. APP. P. 33.1. But even if the trial court erred by
comparing the signatures, the error is not reversible unless it probably caused the
rendition of an improper judgment. TEX. R. APP. P. 44.1(a). The trial court
concluded appellant failed to meet its burden that the credit application was signed
by Ballard because no witness testified to having personal knowledge that Ballard
signed it and Ballard denied signing it. The trial court did not need to examine the
signatures to reach this conclusion. Accordingly, any error by the trial court in
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comparing Ballard’s admitted signatures to those on the credit application was not
reversible error.
The trial court also concluded, “Further, there was no evidence that [appellant,
George P. Bane, Inc.]—as opposed to Bane Machinery, Inc.—provided anything of
value to, or transacted any business with, Ballard.” Appellant asserts this conclusion
is “demonstrably false” because appellant was “the entity which provided a line of
credit to [Ballard] for purchases at any of the Bane entities.” The evidence shows
all the Bane entities’ transactions were with Affordable Sand, not Ballard. Thus, as
the trial court found, there is no evidence that any of the transactions were with
Ballard or that they provided anything of value to Ballard.
We conclude appellant has not shown it conclusively proved Ballard executed
the guaranty on the credit application, nor has appellant shown the trial court’s
findings and conclusions that appellant failed to meet its burden to prove Ballard
executed the guaranty were so against the great weight and preponderance of the
evidence as to be clearly wrong and unjust. Therefore, the evidence is legally and
factually sufficient. We overrule appellant’s first issue.
FORGERY
In its second issue, appellant contends Ballard failed to prove his forgery
defense. We need not reach this issue because we have already determined the trial
court did not err by determining appellant failed to meet its burden of proving
Ballard executed the guaranty on the credit application. Because appellant failed to
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meet its burden of proof on its claim, we need not consider whether Ballard met his
burden of proof on a defense to that claim. We overrule appellant’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
191459F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GEORGE P. BANE, INC., Appellant On Appeal from the 44th Judicial
District Court, Dallas County, Texas
No. 05-19-01459-CV V. Trial Court Cause No. DC-17-07758.
Opinion delivered by Justice Myers.
JOE BALLARD, Appellee Justices Osborne and Carlyle
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee JOE BALLARD recover his costs of this
appeal from appellant GEORGE P. BANE, INC.
Judgment entered this 22nd day of March, 2021.
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