Parks v. Seybold

Decision Date23 July 2015
Docket NumberNo. 05-13-00694-CV,05-13-00694-CV
PartiesCLYDE R. PARKS, Appellant v. SCOTT A. SEYBOLD, Appellee
CourtTexas Court of Appeals

On Appeal from the 193rd Judicial District Court Dallas County, Texas

Trial Court Cause No. DC11-10220

MEMORANDUM OPINION

Before Chief Justice Wright1 and Justices Lang-Miers and Brown

Opinion by Justice Brown

Appellant Clyde R. Parks appeals a judgment granted in favor of appellee Scott A. Seybold to recover a debt owed on a note after suit on the note became barred by limitations. Following a bench trial, the trial court entered a judgment in favor of Seybold based on Parks's written acknowledgment of the debt. Parks presents five issues on appeal,2 and complains (1) the trial court erred in finding he was a joint obligor on the underlying note, (2) the trial court erred in concluding his e-mails met the legal requirements of an acknowledgment, (3) the trial court erred in awarding interest on the note, (4) there is no evidence to support the trial court's finding that he "signed" the written acknowledgment, and (5) the judgment erroneously states the casewas tried to a jury, rather than the court. For the following reasons, we affirm the trial court's judgment.

Background

Gaming Management Corporation (GMC) executed a note payable to Scott Seybold in the original principal amount of $10,000, plus fifteen percent interest. The note was handwritten by Clyde Parks and he signed it for GMC in his capacity as its vice-president. Parks also signed the note "individually." Above his individual signature, Parks wrote "Secured by Super Bowl Tickets 1-38."

GMC became defunct and neither it nor Parks timely paid on the note. Parks, however, made some sporadic payments on the note before limitations expired. When Seybold sought full payment on the note after limitations expired, Parks responded with several e-mails in which he referenced the debt and told Seybold he was working on getting funds to pay him. For example, one such email stated in pertinent part:

Talking with people for loans or sale of tickets. . . . . Going to visit Dennis at bank in next couple of days to see if any room for loan on Suzanne's car. Trying to collect monies from some clients (small amounts). Not ignoring you! I want this matter resolved as soon as possible. Without interest what is balance? I have sold all assets and like you am feeling pressure from all areas. Will try to give you update daily if you wish.
Thank You,
Clyde
LAW OFFICES OF CLYDE R. PARKS
ATTORNEYS & COUNSELORS AT LAW
[contact information omitted]

When Parks failed to pay the amount that remained due on the note, Seybold filed suit. He asserted various claims including a claim that Parks breached a written acknowledgment. Following a bench trial, the trial court entered judgment in favor of Seybold on the acknowledgment claim. The trial court awarded Seybold the principal amount that remaineddue on the note, plus pre and post-judgment interest at the rate specified in the note. The trial court made findings of fact and conclusions of law to support its judgment. Parks appeals.

Joint Obligor

In his second issue, Parks complains the trial court erred in concluding he was a joint obligor on the note. Under this issue, Parks asserts he was not jointly obligated on the note because he signed the note in his capacity as the "V.P." of GMC. See, e.g., First Nat. Bank in Garland v. Murphy, 441 S.W.2d 661, 663 (Tex. Civ. App.—Dallas 1969, no writ). Parks acknowledges he also signed the note individually, but claims he did so only to "evidence" his "pledge" of personal Super Bowl tickets. He then states, with no citation to authority and no argument or substantive analysis, that he was not individually obligated on the note because he did not guaranty or receive consideration for the note.

A party must provide legal authority and substantive analysis pertinent to the legal issue that we must decide. Bullock v. Am. Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.). References to legal authority that have nothing to do with the issue to be decided do not comply with the rules of appellate procedure. Bolling, 315 S.W.3d at 896.

Here, Parks fails to cite us to any applicable authority or provide us with any legal argument regarding the general legal effect of a second party signing a note or the specific effect of his own signature on the note. See, e.g., TEX. BUS. & COM. CODE ANN. § 3.419 (West 2004) (instruments signed for accommodation); WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 718 (Tex. App.—Dallas 1995, no writ) (liability of co-maker on a note). Therefore, even if we agreed with Parks that his signature for GMC did not show he was individually obligated on the note, Parks has failed to show reversible error. We resolve the second issue against Parks.

Acknowledgment

In his fourth issue, Parks asserts the trial court erred in concluding his e-mails constituted a valid acknowledgment under the provisions of section 16.065 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.065 (West 2015). A creditor may sue to recover a debt otherwise barred by limitations if the debtor has acknowledged the debt in writing. Estate of Curtis, No. 06-14-00037-CV, 2015 WL 3487079, *10 (Tex. App. — Texarkana, June 3, 2015, no pet. h.). Such an acknowledgement must: (1) be signed by the party to be charged, (2) contain an unequivocal acknowledgment of the justness or the existence of the particular obligation, and (3) refer to the obligation and express a willingness to honor that obligation. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.065 (West 2015); Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002). When a creditor so acknowledges a debt, the law implies a promise to pay the debt and the debtor may sue for breach of that promise. See Hanley v. Oil Capital Broad. Ass'n, 171 S.W.2d 864, 865-66 (Tex. 1943); Cotulla v.Urbahn, 135 S.W. 1159, 1162 (Tex. 1911). It is not necessary that the acknowledgment itself include a promise to pay a particular amount or even identify the particular debt, but the debt referred to must be susceptible of ready ascertainment. See Cotulla, 135 S.W. at 1162; Hutchings v. Bayer, 297 S.W.2d 376, 378 (Tex. Civ. App.—Dallas 1956, ref'd n.r.e.); Estate of Curtis, 2015 WL 3487079 at *10. Whether a writing meets the requirements of Section 16.065 is a question of law. Martindale Mortg. Co. v. Crow, 161 S.W.2d 866, 870 (Tex. Civ. App.—El Paso 1941, writ ref'd w.o.m.); Matter of Vineyard Bay Dev. Co., Inc., 132 F.3d 269, 271 (5th Cir. 1998) (applying Texas law). But whether an acknowledgment refers to the particular debt sued on is a question of fact. Hutching, 297 S.W.2d at 378.

In this issue, Parks asserts his e-mails did not constitute an acknowledgment because the e-mails were "too vague" and "indefinite" to create an enforceable contract. See e.g., Bendalin v.Delgado, 406 S.W.2d 897, 899 (Tex. 1966). In doing so, Parks assumes that because a written acknowledgment creates a new obligation, that the writing must contain each essential element of a valid enforceable contract. Parks misunderstands the writing requirement necessary to revive a debt otherwise barred by limitations.

If a writing acknowledges the justness of a claim, that acknowledgment imports (1) an admission that the claim is a subsisting debt, and (2) a promise to pay it, if unaccompanied by any circumstances repelling the presumption of willingness or intention to pay. Hanley, 171 S.W.2d at 865; see also Stein v. Hamman, 6 S.W.2d 352, 353 (Tex. 1928); see also House of Falcon v. Gonzalez, 583 S.W.2d 902, 905 (Tex. Civ. App.—Corpus Christi 1979, no writ); Mandola v. Oggero, 508 S.W.2d 861, 863 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ). Although a cause of action on an acknowledgment is based on breach of the new promise, that promise is to pay the old debt. See Doncaster v. Hernaiz, 161 S.W.3d 594, 605 (Tex. App.—San Antonio 2005, no pet.) (effect of such an acknowledgment is to create a new promise to pay the old debt).

Here, it is undisputed the debt Parks was referring to in his e-mails was the debt on the note. Although Parks asked for more time to pay that debt, he unequivocally acknowledged it as a current obligation and expressed his intention and willingness to pay it. See Hanley, 171 S.W.2d at 866 (promise to pay may be inferred from debtor requesting "creditor's indulgence, promising to remit a portion of the indebtedness, or . . . creditor's forbearance until he is able to raise the money). Further, both the debt and the amount due thereon was susceptible of ready ascertainment. We conclude Parks' e-mails met the requirements of a written acknowledgment. See Starr v. Ferguson, 166 S.W.2d 130, 131 (Tex. 1942).

Interest

In his fifth issue, Parks asserts the trial court erred in awarding prejudgment interest because his acknowledgment did not include an agreement to pay interest on the note. In its judgment, the trial court awarded Seybold the principal amounts that remained due on the note and "prejudgment" interest on that amount at the rate specified in the note from the date of the note's execution.3

Here, Parks essentially reurges the arguments raised above, asserting the trial court erred in its award of interest because he did not agree to pay interest on the note when he acknowledged that debt. However, as explained above, Parks's e-mails unequivocally acknowledged the debt and expressed an intent and willingness to pay it. That debt was not limited to the repayment of principal, but included fifteen percent interest. That interest rate also continued after the note matured. See Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex. 1984) (where note silent, it is implied pre-maturity interest rate continues after maturity). Consequently, we cannot agree the trial court erred in awarding Seybold...

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