Justin D. Perryman v. Citizens National Bank at Brownwood

Citation: Not availableDocket: 11-18-00327-CV

Court: Court of Appeals of Texas; September 2, 2021; Texas; State Appellate Court

Original Court Document: View Document

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On September 2, 2021, the Eleventh Court of Appeals issued a memorandum opinion regarding the appeal of Justin D. Perryman against Citizens National Bank at Brownwood. The appeal stemmed from a trial court case in Brown County, Texas, concerning more than two million dollars borrowed through two promissory notes by Perryman and his business partners, Jim Tillman and Ken Koepke, for their company, Texas Oil Investments, LLC. The appeal was initially filed on November 20, 2018, but was abated due to Perryman's mobilization for active-duty service, later being reinstated to address funding for the company.

After defaulting on the loans, the bank sought to enforce personal guarantees signed by Perryman, Tillman, and Koepke. The trial culminated in a jury verdict awarding the bank $1,934,000 in damages, with the trial court holding the parties jointly and severally liable and imposing 18% postjudgment interest.

Perryman, representing himself on appeal, contended that the trial court erred in denying a motion for continuance filed by Koepke, denying Koepke’s motion for a directed verdict on a fraud claim, and in imposing the 18% interest rate. The court concluded that Perryman failed to preserve the issue regarding the continuance for appellate review, affirming the trial court’s judgment without substituting its judgment for that of the trial court.

The trial court's discretion is evaluated based on whether it acted arbitrarily or without reference to guiding principles. For an appellate complaint to be preserved, it must be raised in the trial court via a timely request or objection, as per Rule 33.1. In this case, although Koepke filed a motion to continue the trial due to health issues, the Appellant did not file a similar motion nor adopt Koepke’s motion. Instead, the Appellant filed a motion to continue a summary judgment hearing but failed to request a continuance for the August 6 jury trial setting, despite being aware of Koepke's situation. The Appellant argued that referencing Koepke's motion in his own implied adoption of it; however, this did not satisfy the requirement for preservation. Furthermore, even if Appellant had adopted Koepke’s motion, it was deficient under Texas Rules of Civil Procedure 251 and 252, which require supporting affidavits for continuance applications. Koepke's motion lacked an affidavit, did not adequately detail the materiality of absent testimony, and failed to meet the necessary criteria for a continuance. Consequently, the trial court's denial of the motion was justified, as it was not a reversible error.

Appellant's first issue on appeal was not preserved for review because he failed to timely raise his complaint before the trial court, as required by TEX. R. APP. P. 33.1(a)(1). Consequently, his complaint regarding the denial of a motion for continuance is overruled. In addressing the second issue, which concerns the denial of Koepke's motion for directed verdict on the fraud claim, the court applies a legal sufficiency standard. Appellant did preserve this issue by including it in a joint motion for new trial. Despite the trial court denying the directed verdict, the jury ultimately found in favor of Koepke on the fraud claim. Therefore, any alleged error in denying the motion was deemed harmless, as it did not affect the outcome of the case. Thus, the second issue is also overruled. Lastly, regarding the third issue, Appellant argues that the postjudgment interest awarded was excessive. Under the Texas Finance Code, if a contract does not specify an interest rate, the applicable postjudgment interest rate defaults to the consumer credit commissioner's determination under Section 304.003. However, Appellant contends that Section 304.002 governs because the loan contract lacked a specified interest rate. The court finds no merit in Appellant's argument, affirming the trial court's decision on all issues raised.

The Judgment Rate at the time of the trial court's final judgment was set at 5%. The Appellant had signed personal guarantees on two notes but contends that the jury did not address the enforcement of the guarantees or any related documents. The trial court's judgment was rendered on August 23, 2018, when the Judgment Rate was confirmed as 5%. Appellant argues that the guaranty agreements did not specify postjudgment interest rates and claims that if the Appellee intended to set an interest rate, it should have been explicitly stated in the agreements. 

Although the guaranty agreements referenced the secured notes, which specified interest rates of 24% and the maximum allowed by law, the Appellant asserts that the notes are ancillary documents and that no evidence was presented showing a breach of these documents. He cites Hooks v. Samson Lonestar, L.P., which addressed postjudgment interest rates concerning past-due royalties, indicating that the statutory rate of 5% applied to monetary recoveries without a specified rate in the leases. However, the court's ruling in Hooks ultimately weakens the Appellant's case because, unlike in Hooks, where only the royalties had a specified rate, the notes in this case clearly stated interest rates for past-due amounts.

Since the jury found that the Appellant and his partners failed to comply with their personal guarantees and that there was an outstanding balance on the promissory notes, the specified interest rates for the unpaid amounts were activated. Thus, the trial court's decision to impose a postjudgment interest rate of 18% on the damages awarded to the Appellee was correct. The court affirmed the trial court's judgment and overruled the Appellant's third issue.