David Viele; Beth Viele, Individually and as Trustee for the Helen E. Viele Irrevocable Trust; And Beth's Bail Bonds, Inc. v. Corey Williams, in His Capacity as a Vice President of Centennial Bank; Ashley Moran, in Her Capacity as a Clerk for Centennial Bank; And Centennial Bank

Cite as 2021 Ark. App. 231
Elizabeth Perry
I attest to the accuracy and ARKANSAS COURT OF APPEALS
integrity of this document DIVISION IV
2023.06.27 13:55:55 -05'00' No. CV-20-165
2023.001.20174
DAVID VIELE; BETH VIELE,
OPINION DELIVERED: MAY 12, 2021
INDIVIDUALLY AND AS TRUSTEE
FOR THE HELEN E. VIELE
IRREVOCABLE TRUST; AND BETH’S APPEAL FROM THE PULASKI
BAIL BONDS, INC. COUNTY CIRCUIT COURT,
APPELLANTS SIXTH DIVISION
[NO. 60CV-17-2234]

V. HONORABLE TIMOTHY DAVIS
FOX, JUDGE

COREY WILLIAMS, IN HIS CAPACITY
AS A VICE PRESIDENT OF
CENTENNIAL BANK; ASHLEY
MORAN, IN HER CAPACITY AS A
CLERK FOR CENTENNIAL BANK; AND
CENTENNIAL BANK
APPELLEES AFFIRMED

ROBERT J. GLADWIN, Judge

Appellants David Viele; Beth Viele, individually and as trustee for the Helen E. Viele

Irrevocable Trust; and Beth’s Bail Bonds, Inc. (BBB), appeal the November 18, 2019 order

of the Pulaski County Circuit Court granting summary judgment to appellees Corey

Williams, in his capacity as a vice president of Centennial Bank; Ashley Moran, in her

capacity as a clerk for Centennial Bank; and Centennial Bank (the Bank). Appellants argue

that the circuit court erred in finding that the statute of limitations had run and that there

were no genuine issues of material fact to be decided by a jury. We affirm.
I. Procedural History

Appellants originally filed suit on August 11, 2015, in the United States District

Court, Eastern District of Arkansas, against, among others, appellees and Larry Peters,

individually and in his capacity as the executive director of the Arkansas Professional Bail

Bondsman Licensing Board (the Board). Viele v. Peters, 4:15CV00503 BSM, 2016 WL

3884032 (E.D. Ark. July 12, (2016). On July 12, 2016, the suit’s federal claims were

dismissed without prejudice, and the state claims were dismissed with prejudice.

On May 5, 2017, appellants filed a complaint against appellees and Peters in the

Pulaski County Circuit Court, alleging conspiracy, conversion, and negligence (also referred

to by appellants as breach of fiduciary duty and breach of contract). 1 In an amended

1
The exhibits attached to the complaint include (1) “Change in Terms Agreement,”
identifying BBB, David Viele, and Helen Viele as borrowers and the Bank as the lender and
describing that on September 26, 2011, the borrowers renewed a promissory note originated
on October 24, 2007, and the collateral for the note is a $100,000 certificate of deposit (CD)
held in the Bank in the name of the Helen E. Viele Irrevocable Trust; (2) “Trust Certificate”
for the Helen E. Viele Irrevocable Trust in the principal amount of $100,000 and naming
BBB, David Viele, and Helen Viele as borrowers; (3) “Corporate Resolution to
Borrow/Grant Collateral” for the benefit of BBB; (4) “Notice of Final Agreement,”
describing the loan as a “Nondisclosable Draw Down Line of Credit Loan” to David Viele,
Helen Viele, and BBB in the amount of $100,000; (5) “Disbursement Request and
Authorization,” having a stated purpose to renew the $100,000 letter of credit; (6)
“Assignment of Deposit Account,” granting the Bank a security interest in the $100,000
CD; (7) February 3, 2014 letter signed by Peters as executive director of the Board
requesting the withdrawal of the $100,000 letter of credit, which was assigned to the Board
to qualify BBB for a bail-bonds license pursuant to Arkansas Code Annotated section 17-
19-208(b)(1) (Repl. 2018); and (8) copy of the $100,000 CD.

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complaint filed May 25, 2018, appellants asserted that Peters had been dismissed from the

case. 2 The amended complaint alleged:

11. On February 3, 2014, Larry Peters appeared at [the Bank], stating that he had
a “court order” demanding the Bank surrender [appellants’] entire line of
credit to him, or $100,000.00. Peters did not have a court order of any kind
authorizing or even hinting at the authorization for the Bank to surrender
[appellants’] money to him.

12. No civil action was ever actually filed, served, or pursued, and [appellants]
were never afforded the due process rights to which they would have been
entitled in an appropriately pled and founded civil action. Peters did not have
a judgment when he appeared at [the Bank] and walked out with a
$100,000.00 cashier’s check on BBB letter of credit.

13. [Appellees] willingly obliged, handing over $100,000.00 of [appellants’]
monies to Peters, without any lawful authority, and in breach of the contract
between the Vieles and [the Bank].

14. [The Bank] subsequently converted the $100,000.00 [CD] that was
maintained at [the Bank] in the Helen E. Viele Irrevocable Trust to account
for the funds it surrendered to defendant Peters. [The Bank] did so in breach
of the contract by paying the $100,000.00 from the [CD] to reimburse itself
for the $100,000.00 paid to L.E. Peters. The transfer was without notification
to [appellants] and before the time specified in the contract. [The Bank] was
not authorized to summarily utilize the [CD] to pay the letter of credit. The
actions of [appellees] constituted a substantial breach of the agreement
between the parties as it relates to the [CD].

On August 30, 2019, appellees moved for summary judgment, and in their brief,

appellees argued that appellants’ complaint was initiated after the expiration of the statute of

limitations. 3 They claimed that pursuant to Arkansas Code Annotated section 4-5-115

2
The circuit court granted summary judgment to Peters, individually, on November
3, 2017, and that order is not a subject of this appeal.
3
Appellees attached the following exhibits to their brief: (1) “Promissory Note”
reflecting that on October 24, 2007, BBB, David Viele, and Helen Viele borrowed
$100,000 from the Bank; (2) “Clean Irrevocable Letter of Credit” issued by the Bank to the

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(Repl. 2020), the statute of limitations for any action under a letter of credit is one year.

Appellees argued that the alleged date of harm was February 3, 2014, the date on which the

check was issued to the Board; thus, appellees asserted that appellants had until February 3,

2015, to file their complaint, and appellants’ complaint filed on May 5, 2017, was outside

the limitations period. Further, they asserted that there is a three-year statute of limitations

for claims of conspiracy, negligence, and conversion. See Ark. Code Ann. § 16-56-105

(Repl. 2005). Accordingly, they argued that February 3, 2017, is the applicable deadline

for filing a complaint under these claims and that the May 5 complaint was filed too late.

Appellants responded to appellees’ motion, claiming that the Arkansas savings statute,

Ark. Code Ann. § 16-56-126 (Repl. 2005), makes their complaint timely because it was

filed on May 5, 2017, which is within one year of the federal court’s dismissal without

prejudice on July 12, 2016. Appellants abandoned their claims for conversion and

conspiracy but argued that their negligence claim should survive summary judgment because

material facts were in dispute.

Appellants argued that their negligence claim is not entirely centered on the letter of

credit but also includes the CD, the “Change in Terms Agreement,” the promissory note,

and the actions of the appellees. They claimed that on the basis of these documents and the

deposition testimony of appellee Williams, there were genuine issues of material fact to be

Board in the amount of $100,000 as a security deposit for BBB in accordance with Arkansas
law; and (3) “Assignment of Deposit Account,” which secured the appellants’ and Bank’s
promissory note with the $100,000 CD.

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determined relating to their negligence, breach-of-fiduciary-duty, and breach-of-contract

claims.

Appellees replied that regardless of the savings statute, appellants filed their complaint

in federal district court on August 11, 2015, which is outside the one-year statute of

limitations for claims based on letters of credit. See Ark. Code Ann. § 4-5-115. On

November 18, 2019, the circuit court granted summary judgment with no specified findings

dismissing appellants’ case with prejudice. Appellants filed a timely notice of appeal, and

this appeal followed.

II. Applicable Law

Our standard of review is well settled:

A motion for summary judgment should be granted when, in light of the
pleadings and other documents before the circuit court, there is no genuine issue of
material fact, and the moving party is entitled to a judgment as a matter of law. Ark.
R. Civ. P. 56(c) (2017). When reviewing whether a motion for summary judgment
should have been granted, this court determines whether the evidentiary items
presented by the moving party in support of the motion left a material question of
fact unanswered. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531
(2000). The burden of sustaining a motion for summary judgment is always the
responsibility of the moving party. Id. All proof submitted must be viewed in a light
most favorable to the party resisting the motion, and any doubts and inferences must
be resolved against the moving party. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234
(2007). Summary judgment is proper, however, when the statute of limitations bars
an action. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995); IC
Corp. v. Hoover Treated Wood Prods., Inc., 2011 Ark. App. 589, 385 S.W.3d 880; Tony
Smith Trucking v. Woods & Woods, Ltd., 75 Ark. App. 134, 55 S.W.3d 327 (2001).

Hill v. Hartness, 2017 Ark. App. 664, at 4, 536 S.W.3d 649, 651.

Arkansas Code Annotated sections 4-5-101 to -120 contain Arkansas’s Uniform

Commercial Code—Letters of Credit. The statute of limitations is provided in section 4-

5-115 as follows:

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An action to enforce a right or obligation arising under this chapter must be
commenced within one (1) year after the expiration date of the relevant letter of
credit or one (1) year after the cause of action accrues, whichever occurs later. A
cause of action accrues when the breach occurs, regardless of the aggrieved party’s
lack of knowledge of the breach.

The U.C.C official comment supplies the following insight:

2. This section applies to all claims for which there are remedies under Section
5-111 and to other claims made under this article, such as claims for breach
of warranty under Section 5-110. Because it covers all claims under Section
5-111, the statute of limitations applies not only to wrongful dishonor claims
against the issuer but also to claims between the issuer and the applicant arising
from the reimbursement agreement. These might be for reimbursement
(issuer v. applicant) or for breach of the reimbursement contract by wrongful
honor (applicant v. issuer).

U.C.C. § 5-115, Official Comment 2 (1995). Arkansas Code Annotated section 4-5-111

provides for remedies when a letter of credit is dishonored or breached.

III. Statute of Limitations

Appellants argue that Arkansas Code Annotated section 4-5-115 has no application

because they did not file a claim for a breach of a letter of credit. They contend that their

claims are for negligence (breach of a fiduciary duty) and breach of contract. They agree

that negligence has a three-year statute of limitations and that a breach-of-a-written-contract

claim has a five-year statute of limitations. See Ark. Code Ann. §§ 16-56-105, -111.

Appellants argue that appellees disregard the Arkansas savings statute, Ark. Code Ann. § 16-

56-126(a)(1), which provides:

If any action is commenced within the time respectively prescribed in this act,
in §§ 16-116-101–16-116-107, in §§ 16-114-201–16-114-209, or in any other act,
and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the
judgment is arrested, or after judgment for him or her the judgment is reversed on
appeal or writ of error, the plaintiff may commence a new action within one (1) year
after the nonsuit suffered or judgment arrested or reversed.

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Appellants contend that they originally commenced this action for negligence in

federal court on August 11, 2015, which is within three years of February 3, 2014. When

their state claims were dismissed without prejudice on July 12, 2016, they refiled their claims

within one year on May 5, 2017. They also contend that their breach-of-contract claim

was filed within five years of February 3, 2014. Thus, they argue that their claims are timely

and that the circuit court erred by granting summary judgment as it relates to the statute-

of-limitations issues.

We disagree and hold that the circuit court was correct in granting summary

judgment pursuant to the applicable statute of limitations. Regardless of how appellants

couch their claims, their alleged causes of action result from their belief that appellees erred

by recognizing the terms of appellants’ letter of credit and that appellees were wrong to have

tendered the $100,000 that was represented on the face of the letter of credit to the Board.

Appellants’ complaint is wholly predicated on the argument that appellees “wrongfully . . .

honor[ed] a draft or demand” under a letter of credit. Ark. Code Ann. § 4-5-111(b). The

remedy for a letter of credit is subject to the statute of limitations of “one (1) year after the

cause of action accrues.” Ark. Code Ann. § 4-5-115. Appellants have alleged that their

injury occurred when the Board presented the letter of credit to appellees and the Board

was tendered the $100,000 cashier’s check on February 3, 2014. Thus, appellants’ first filing

of August 11, 2015, was far past the one-year statute of limitations. Because this court lost

jurisdiction to hear this matter on February 4, 2015, the savings statute does not save their

claim, and appellants never filed a claim within the prescribed period pertaining to a letter

of credit.

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Because appellants’ complaint is barred by the statute of limitations, summary

judgment was properly granted, and it is unnecessary to address appellants’ arguments that

genuine issues of material fact remain.

Affirmed.

BARRETT and HIXSON, JJ., agree.

Charles D. Hancock, for appellants.

McGue Law Firm, by: Clinton D. McGue, for appellees.

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