Burnett v. Rush & Co., Inc.

Cite as 2015 Ark. App. 629

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-436

KEVIN BURNETT AND Opinion Delivered NOVEMBER 4, 2015
LARREASHA ADAMS
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, SECOND
V. DIVISION [NO. CV-2014-2115]

HONORABLE CHRISTOPHER
CHARLES PIAZZA, JUDGE
RUSH & COMPANY, INC.
APPELLEE AFFIRMED

DAVID M. GLOVER, Judge

Appellants Kevin Burnett and Larreasha Adams argue pro se on appeal that the trial

court erred in finding Adams cosigned a promissory note in favor of appellee Rush &

Company, Inc. (Rush) and entering a judgment against them in the amount of $15,380.24.

They further argue the trial court erred in denying admission of Adams’s driver’s license into

evidence and allowing Rush’s counsel to improperly “testify” about Adams’s license. We

affirm.

Rush filed a complaint for breach of contract against Burnett and Adams in June 2014

for default on a promissory note. Both Burnett and Adams denied Adams had signed the

promissory note.

At trial, the evidence presented showed that Rush sold Adams a home in Pulaski

County in 2011. The HUD settlement statement, dated July 29, 2011, indicated the contract

sale price for the home was $283,000, with a deposit of $12,500 and a mortgage of $273,750.
Cite as 2015 Ark. App. 629

Rush introduced into evidence an installment promissory note dated August 1, 2011, between

Burnett and Adams as borrowers and Rush as lender, for the amount of $12,600, with an

annual interest rate of eight percent. The note provided installment payments would be made

monthly in the amount of $569.86 for principal and interest beginning on September 1, 2011,

and continuing until July 1, 2013, at which time the remaining principal and interest would

be due in full. The promissory note was secured by the residence Rush had sold to Adams,

and it purportedly bore the signatures of both Burnett and Adams. Ben Rush, owner of

Rush, testified he financed the difference between the sales price and the mortgage amount

for Adams and Burnett because they were unable to obtain financing for the entire purchase

price. Ben Rush explained that the promissory note was for $12,600, and the $100 difference

between the down payment and the promissory-note amount was for the few extra days of

interest. Ben Rush stated Burnett made only one payment on the note. He testified he saw

Burnett sign the promissory note, and while he did not see Adams sign the note, Burnett took

the note to Adams to sign and returned it to him, representing to him that Adams had signed

it.

Both Burnett and Adams denied Adams had signed the promissory note. Burnett

admitted he had signed the note and owed Rush, but claimed Adams knew nothing about

the note. Adams denied she had signed the promissory note, and she offered her driver’s

license signature as proof that it was not her signature on the promissory note. Rush’s counsel

objected to the driver’s license being presented as proof, not only because Adams denied

signing the note, but also because the driver’s license signature was not a fair representation

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Cite as 2015 Ark. App. 629

of a signature. The trial court stated it did not make much difference because, if Adams did

not sign the note or did not know about it, then there was fraud committed. The trial court

then ruled in favor of Rush, and Burnett and Adams now appeal.

Our standard of review following a bench trial is whether the circuit court’s findings

are clearly erroneous or clearly against the preponderance of the evidence. Steele v. Lyon,

2015 Ark. App. 251, 460 S.W.3d 827. A finding is clearly erroneous when, although there

is evidence to support it, the reviewing court on the entire evidence is left with a definite and

firm conviction that a mistake has been made. Id. The appellate court gives due deference

to the superior position of the trial court to view and judge the credibility of the witnesses.

Id.

On appeal, Burnett and Adams argue the evidence that Adams signed the note was

insufficient. Specifically, they assert the only evidence to show that Adams was a signatory

was her name on the signature line, which was refuted by Burnett’s and Adams’s denials that

Adams had signed the promissory note. We disagree. Rush presented the promissory note

for $12,600, purportedly bearing not only Burnett’s signature but also Adams’s signature; the

HUD statement showing the selling price of the house was $283,000, the mortgage was

$273,750, and there was a down payment of $12,500; and Ben Rush’s testimony that Burnett

had taken the promissory note for Adams to sign and had represented to him that she had

signed it. Due to the conflicting evidence presented, this was a credibility determination for

the trial court to make. We hold the trial court’s determination that Adams had signed the

promissory note was not clearly erroneous.

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Cite as 2015 Ark. App. 629

Burnett and Adams also challenge the fact that the trial court did not consider Adams’s

driver’s license to compare her license signature with the signature on the note. When they

attempted to introduce the license, Rush objected, but the trial court never ruled on Rush’s

objection. Because Burnett and Adams did not obtain a ruling, this argument is not preserved

for our review; it is an appellant’s burden to obtain a ruling to preserve an issue for appeal, and

the failure to do so precludes our review. Hurst v. Arkansas Radiology Affiliates, P.A., 2015

Ark. App. 333. Furthermore, even if a ruling had been obtained, Burnett and Adams never

proffered Adams’s driver’s license. To challenge a ruling excluding evidence, an appellant

must proffer the excluded evidence so the appellate court can review the decision, unless the

substance of the evidence is apparent from the context. Wymer v. Hutto, 2014 Ark. App. 497,

442 S.W.3d 912.

Affirmed.

WHITEAKER and BROWN, JJ., agree.

Kevin M. Burnett and Larreasha Adams, pro se appellants.

Hope, Trice, O’Dwyer & Wilson, P.A., by: Kevin M. O’Dwyer, for appellee.

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