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1 Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-6061
Summary Calendar
_____________________________________
JOE D. BANNING,
Plaintiff-Appellant,
VERSUS
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA H 88 2381)
______________________________________________________
(November 23, 1992)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Appellant Joe Banning ("Banning") appeals the district court
jury verdict denying him recovery on his fire insurance policy with
Appellee State Farm Fire and Casualty Company ("State Farm").
Finding no error, we affirm.
FACTS
Joe Banning purchased from State Farm a fire insurance policy
insuring his home. Two months later his home was damaged by fire.
Banning filed a claim with State Farm, seeking to recover under the

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2 Banning also argues that an examination of the depositions,
interrogatories, and trial testimony of one of State Farm's
witnesses, Ray Williams, demonstrates that Williams contradicted
himself at least twenty times. Banning then states that these
contradictions were false statements, that State Farm's attorney
was aware that the contradictions were false statements, and that
by knowingly using these false statements at trial, State Farm's
attorney violated the State Bar Rules of Texas. Our examination of
Banning's list of supposed contradictory statements reveals nothing
more than immaterial, minor inconsistencies that could easily be
made by any person who tells the same story numerous times.
Banning's argument is meritless.
2
insurance policy. State Farm denied it, contending that either
Banning, his wife, or both had intentionally set or conspired to
set the fire, and that they had made misrepresentations to State
Farm during its investigation of the loss.
The Bannings denied these allegations, and sued State Farm in
Texas state court, alleging breach of contract. State Farm removed
the suit to federal district court where a jury unanimously found
that Joe Banning, his wife, or both had set or participated in
setting the fire that damaged their home. Banning was denied
recovery.
BASES FOR APPEAL
Banning alleges that the district court improperly excluded
evidence, that State Farm perpetrated fraud on the court by
tendering in evidence a false insurance application, and that State
Farm's attorney misquoted witnesses in his closing argument.2
Banning contends that each alleged error constitutes grounds for
reversal.
1. Exclusion of Evidence
One witness who testified on behalf of State Farm was Ray

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3 The relevance of this statement is derived from Banning's theory
that the investigator's phone calls induced Williams to lie at
trial.
3
Williams, Banning's next door neighbor. Williams testified that
repeated phone calls made during the investigation by a State Farm
investigator did not "piss [him] off."3 At this point, Banning's
attorney approached the bench and claimed to possess a taped
conversation between Williams and Banning in which Williams stated
that the phone calls did indeed "piss [him] off." Banning's
attorney stated that his tape demonstrated a prior inconsistent
statement that would impeach Williams's testimony. State Farm's
attorney objected on the grounds that it was hearsay, collateral,
and surreptitiously recorded. He also complained that the tape
should have been produced during discovery, but wasn't. The court
sustained his objection, thereby excluding the tape from evidence.
Banning asserts that the trial court erred in this ruling.
State Farm answers that at trial Banning never made an offer of the
tape recording as an offer of proof required by Federal Rule of
Evidence 103(a)(2). We agree with State Farm that no indication
exists that Banning ever offered the tape or a certified transcript
of the tape into evidence at trial. By failing to comply with Rule
103(a)(2), Banning has not preserved this issue for appeal.
Furthermore, even if Banning had offered the tape, the trial
court's decision to exclude it is afforded great deference by this
Court. "[A]s a general precept, we overturn an evidentiary ruling
and, in consequence, reverse judgments and grant new trials, only
if the ruling was so erroneous as to constitute an abuse of

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4 Federal Rule of Appellate Procedure 28(a)(4) states in part:
"[t]he argument shall contain the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with
citations to the authorities, statutes and parts of the record
relied on."(emphasis added)
4
discretion." Hardy v. Chemetron Corp., 870 F.2d 1007, 1009 (5th
Cir. 1989). We find no indication whatsoever that the trial court
abused its discretion by excluding the tape from evidence.
2. False Insurance Application?
Banning next argues that State Farms defrauded the court by
tendering into evidence a false application for insurance,
purportedly executed by Banning. State Farm answers that the
allegedly false application was never admitted into evidence or
tendered to the jury, and therefore has no bearing on the validity
of the unanimous jury verdict.
Banning failed to support his assertion with cites to the
record.4 More importantly, Banning does not indicate how he was
harmed by the alleged introduction of the insurance application.
Because consideration of this issue would require this Court to
imagine the harm caused to Banning, and then to comb the entire
record for support, we decline to address it. See Mitchel v.
General Elec. Co., 689 F.2d 877, 879 (9th Cir. 1982) (dismissing
Plaintiff's appeal for failure to cite to the record in support of
allegations made against Defendant); see also United States v.
Partin, 552 F.2d 621, 633 n.14 (5th Cir. 1977) (stating that it is
unacceptable for an attorney in his brief to omit citations to the
record, particularly when the record is voluminous).

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5
3. Misquoting Witnesses During Jury Summation
In his third argument, Banning asserts that State Farm's
attorney misquoted witnesses three times while addressing the jury
on summation, constituting reversible error. In order to reverse
the district court, the misquotes made by State Farm's attorney
during jury summation must be such as to "gravely impair the calm
and dispassionate consideration of the case by the jury." Dixon v.
International Harvester Co., 754 F.2d 573, 585 (5th Cir. 1985).
After close inspection of the closing argument in question, we find
that the misquotes were minor, and that the jury's consideration of
the case was not impaired.
Furthermore, when a closing argument is challenged for error,
the "entire argument should be reviewed within the context of the
court's rulings on objections, the jury charge, and any corrective
measures taken by the trial court. Alleged improprieties may well
be cured by an admonition or charge to the jury." Westbrook v.
General Tire and Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985).
In this case, each time State Farm's attorney allegedly misquoted
a witness, Banning's attorney objected and the trial judge
instructed the jury that it was their recollection of the trial
testimony, not the attorneys' recollection, that counted.
The misquotes, when considered in light of the entire argument
and the jury charges, do not constitute reversible error.
AFFIRMED.

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