Watch out for the Girlfriend

Big Bruce had signed a personal guaranty.  The point of a personal guaranty is that if the restaurant won't pay the bill, then Big Bruce is signing this document saying he will pay the bill.  This is important because we do not want a judgment against the restaurant, we want a judgment against BB.  If the restaurant goes out of business, as it likely will for reasons I will get into later, then we want him to be on the hook for the judgment.

Now, the interesting thing about this is that BB's lawyer was arguing that the signature on the guaranty was not BB's signature.  They denied that he had even completed this application.  When you compare the personal guaranty to the checks BB submitted to Plaintiff (that bounced, by the way- more about that later), it is pretty easy to see where BB is coming from.  The signatures did not look much alike.

The guaranty was witnessed by a woman, so you would think that would solve our problem. But here is the thing: when we went to trial at 10:00 am we had still not been able to find this woman. So we went to trial on the theory that BB had signed the guaranty.  BB was such slime that I figured the judge would agree with me that he signed it.  We couldn't find the witness to the signature, so all we really had was our testimony that we thought that was his signature and his testimony that it was not his signature.  Considering the bounced checks (and there is much more to that, but bear with me) I figured the judge would just go ahead and hammer this guy.

When we got to trial I objected to certain pleadings they had on file and moved for a judgment on the pleadings as filed by the parties- that no evidence was necessary. The details of this are too pedestrian to go into here, but suffice it to say there were some technical defects in their pleadings that would normally automatically result in a judgment for my client.  But the judge, agreeing with me that there were defects, but disagreeing with me about the results of those defects, adjourned the trial until 2:00 so that BB's lawyer could clean up his documents.

So we went back to my office and my client, Plaintiff, says that he can probably find the Witness to the guaranty.  Now, this is a big deal and I am elated to have this witness.

So he finds this woman by 11:00 and I get on the phone with her.

Here is her story:

This Woman was once a girlfriend to BB.  Note that the guaranty is purportedly signed on December 17, 2004. Her story is that she filled out the application, including the guaranty for BB, because she helped him with the administrative tasks of the restaurant at that time.  She asked him several questions about the application because she did not know how to fill it all out.  I should point out that this woman is vice-president of a respected company related to the legal profession here in town and supervises 20 people in her department. She is no slouch.  BB was supposed to sign it, but failed to do so because he was heading out of town on a vacation with his son.  They were running late and he just failed to sign it.  He called her from his car and told her to sign the application because he needed to buy products from the Plaintiff.  So, at his insistence, she signed it and put it in the mail. 

This Woman and BB broke up on unhappy terms.  She was willing to testify as to how this all happened.

Her story about how the application was completed was enough, under Texas law, to obligate BB under the guaranty. So now I knew two things: 1. I was going to win this afternoon; and 2. I was going to have such a great time doing it.

So I get a subpoena over to her immediately and she is coming to testify about these things at 2:30.

Now, about those bounced checks. 

There are actually 6 of them that add up to about $17,000.00.  When Plaintiff called BB about these checks BB agreed to come to their business on a Saturday in July and bring a cashier's check to make the bounced checks good.  The deal was that BB would bring a cashier's check and the clerk that was out front at the business would give BB an envelope with the bounced checks.  So BB shows up at the store and asks the clerk for the envelope.  Then he turns and runs out of the store with the checks but does not give the clerk a cashier's check for them.  So essentially, he stole the checks from the clerk and therefore from the Plaintiff.  Nice guy, huh? The clerk had come to testify.

I rework my trial strategy to call BB first and let him get all of his lies out there.  The testimony goes something like this:

DWC: Do you recognize Plaintiff's No. 4 (the guaranty)?

BB: No, I have never seen it before this lawsuit.

DWC: Do you have any idea how this document could have made its way to the Plaintiff?

BB: Truthfully, I have no idea.

DWC: Did anyone ever help you with the administrative tasks related to the restaurant?

BB: No, I handled all the administrative stuff myself.  I never let anyone do that stuff, it was too important.

DWC: You never had a friend or maybe someone close to you handle paper work for you?

BB: No, never.

DWC: So you really don't have any idea how Plaintiff's no. 4 could have been created or delivered to Plaintiff?

BB: No, I have no idea.

DWC: Before I finish with this, would you look on page 4 of Plaintiff's no. 4- do you see the witness signature?

BB: Yes.

DWC: I guess from your testimony here today that you have no idea who that is and do not recognize that signature either, right?

BB: No, sir.

DWC: Is there any chance you would have directed someone else to complete and sign this document for you?

BB: No, I would have never done that.

DWC: Looking at Plaintiff's No. 2 (the bounced checks), have you ever seen these checks before?

BB: Yes

DWC: Were these checks dishonored by the bank?

BB: Yes.

DWC: Did you make the checks good?

BB: Yes.

DWC: [surprised]: Really?

BB: Yes.  It would be a felony not to, so I did make them good.

DWC: What evidence do you have that you made these checks good?

BB: It would be a Felony not to make these checks good.

DWC: So the only evidence you have today that you made these checks good is the fact that your failure to make them good would be a felony?

BB: Yes.

DWC: Isn't it true that you actually stole those checks from the Plaintiff?

BB: No.
...

I have the greatest job in the world.

Next I called the Witness and scorned girlfriend.  I cannot imagine what went through BB's mind when I call her as my next witness.  I had made sure that she was out of sight, so he would have no idea what was coming.  I knew, if left to his own devices, he would lie about this and get himself in trouble.

Her testimony went like this:

[First I establish her work history and her personal relationship with BB, including the fact that they lived together from December 2004 until Valentine's Day 2005, then I moved on to the good stuff]

DWC: Do you recognize Plaintiff's No. 4 (the guaranty)?

W: Yes, I completed this document.

DWC: Did BB ask you to complete it?

W: Oh yes, I did not know all the answers to these questions and had to ask him about these things.  He asked me to complete this for him.

DWC: Do you recognize the signature on the last page?

W: Yes, I signed it for BB.

DWC: Why?

W: Because he was going on vacation with his son and he was running late and he left the house without signing the application.  So he called me from his truck and asked me to sign it for him and put it in the mail.

DWC: Is there any doubt in your mind that BB directed you to sign his name to this application?

W: No.

DWC: Is there any question in your mind that you were authorized to act as BB's agent in executing this document?

W: No.

DWC: Why would BB have you do this?

W: Because he needed Plaintiff to sell him produce for his new store.  He was very concerned about his new store and ordering produce for the new store.

Then I passed the Witness to opposing counsel.  They were dead.

That was so great.  By now the air has gone completely out of the room as it is clear that BB is a big ole liar.  But I have one more witness about BB's lies to go and that is the little clerk.  She is about 22 years old and does not look that old.  BB is about 6' 4" and is easily 350 pounds.  So stealing the checks from this little girl would have been nothing for him. 

She testified, in about 3 minutes, that he came into the store, asked for the checks, she gave them to him, and he ran out of the store.

What question did my opposing counsel ask? None.  What could he ask?  So he just let it go.

In closing I said the only credible witnesses all day were the Witness and the Clerk.

The Judge ruled in my favor on every point, including agreeing with me that interest on the judgment should be set at 18%.

For me, it was like being at Disney World.

DWC

Post-Judgment Interest Changes
This Is Why You File Liens
Yeah, but what about the roof?
Settle our Garnishment? Um, no.
No, we won't take half to settle. Here's a garnishment instead.
Um, That's My Airplane
A Turnover for the Ex.
Take the 5th, lose your stuff.
If I pay you, then you can't foreclose on my house!
Rent it, don't steal it.
Of Debts- and Jerry Jones' Airplane
Watch out for the Girlfriend
Can You Get Arrested In Florida?
A TRO for All Seasons
An Old Lady Loses Everything
Magic Letterhead
"One of the Worst Days of My Life"

Email:  Darrell W. Cook

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