Wilmington Savings Fund Society v. Milton A. Smith

Cite as 2023 Ark. App. 326ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-20-508
WILMINGTON SAVINGS FUND OPINION DELIVERED MAY 31, 2023
SOCIETY D/B/A CHRISTIANA TRUST,
TRUSTEE FOR BCAT 2015-4-BTT APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, THIRD
DIVISION
[NO. 60CV-16-1605]
V.
HONORABLE CATHLEEN V.
MILTON A. SMITH AND L&M&M COMPTON, JUDGE
CORPORATION
APPELLEES REVERSED AND REMANDED
ROBERT J. GLADWIN
The appellant, Wilmington Savings Fund Society FSB d/b/a Christiana Trust, as
trustee for BCAT 2015-4-BTT (“Wilmington”) appeals the Pulaski County Circuit Court’s
judgment in favor of appellees Milton A. Smith and L&M&M Corporation. The circuit
court ruled that Wilmington’s efforts to foreclose on a note and mortgage that Smith
executed in 2007 was barred by the five-year statute of limitations applying to “actions to
enforce written obligations, duties, or rights[.]” See Ark. Code Ann. § 16-56-111(a) (Repl.
2005). Wilmington now challenges the circuit court’s judgment, as well as its post-judgment
order denying reconsideration. We reverse and remand.
I. Factual Background
On September 14, 2007, Shirley Thomas conveyed the subject property, 9502 Timber
Valley Road in Little Rock, to Milton Smith. On October 16, 2007, Mr. Smith executed a
document entitled “Bank of America Equity Maximizer Agreement and Disclosure
Statement,” in favor of Bank of America. The principal amount of the promissory note was
$100,000. Mr. Smith also contemporaneously executed a mortgage in favor of Bank of
America on the property. The note and mortgage were payable in monthly installments and
had a maturity date of October 16, 2032. The mortgage also provided, however, that in the
event of a default, the lender had the option to declare the entire unpaid balance of the debt,
including any interest, to be immediately due and payable.
Mr. Smith stopped paying on the note in December 2009, and on May 4, 2010,
attorneys for Bank of America sent a “Notice of Default and Intention to Sell” to Smith. The
notice provided that a “default [had] occurred in the payment of [the] indebtedness, and the
same is now therefore wholly due.” It also provided that a nonjudicial foreclosure sale had
been set for July 8, 2010. That sale was later canceled, however, by a “Notice of Cancellation”
that was recorded with the Pulaski County Circuit Clerk on the date of the intended sale.
On July 21, 2010, Milton Smith executed a quitclaim deed transferring the property
at 9502 Timber Valley Road to L&M&M Corporation (LMM), where Mr. Smith apparently
served as treasurer.
On December 16, 2010, Bank of America recorded another “Notice of Default and
Intention to Sell” with respect to the subject property. The notice provided that a foreclosure
2
sale was scheduled for February 17, 2011. That sale was also canceled by a “Notice of
Cancellation” that was recorded with the Pulaski County Circuit Clerk on February 14,
2011.
Bank of America assigned the note and mortgage to Wilmington in October 2015.
Shortly thereafter, on February 4, 2016, Wilmington filed another “Notice of Default and
Intention to Sell” informing Smith that a foreclosure sale was set for April 5, 2016.1
Smith filed a complaint to quiet title on March 15, 2016. The defendants included
Wilmington, Bank of America, and “John Does 1-10.” In the complaint, Smith alleged that
the promissory note was “not an agreement that could be enforced by foreclosure or
otherwise” because no payment had been made since 2009. According to the complaint,
Arkansas Code Annotated section 16-56-111 provides that “a contract in writing may not be
enforced if more than five (5) years have passed without payment, acknowledgement, or any
such thing.” Therefore, the complaint alleged that “the foreclosure proceeding is apparently
on a security interest that no longer exists,” and the circuit court should enter a finding that
it “is extinguished and that the [pending] sale [is] both temporarily and permanently
enjoined.” Consequently, the complaint prayed that the circuit court “grant temporary and
permanent injunctive relief, that the sale . . . scheduled for April 5, 2016, be cancelled; that
[Smith’s] rights under the underlying financial contract be declared; that title and interest in
1
These facts are according to the allegations in Smith’s complaint and the admissions
in Wilmington’s answer.
3
the property be quieted in him alone; and that he receives costs, attorney’s fees, and all other
just and proper relief.”
Smith followed the complaint with a motion to “stay the sale and issue a temporary
restraining order,” which he filed on March 29, 2016. The circuit court granted the motion
on March 31, 2016, ordering that “the sale scheduled for April 5th, 2016, is cancelled until
the court has had an opportunity to rule on the issues raised by [Smith].”
Wilmington filed a motion to dismiss and alternative answer on August 26, 2016.
Wilmington argued, among other things, that Smith’s complaint should be dismissed
because Wilmington had not been properly served. Alternatively, Wilmington answered by
admitting that it had filed a notice of its intention to foreclose on the Timber Valley property
and generally denying the other material allegations in the complaint. Wilmington also
pleaded “failure to state facts upon which relief can be granted; insufficiency of process and
insufficiency of service of process; lack of standing; tolling; laches; set-off; unclean hands;
estoppel;” and “any and all applicable defenses under the mortgage, note, and/or under
Arkansas law.”
Around the same time, Wilmington sent letters informing Smith that the hazard
insurance for the property on Timber Valley Road, which he had been required to maintain
under the terms of the mortgage, had expired. Ultimately, by letter dated April 8, 2016,
4
Wilmington notified Smith that it had obtained hazard insurance on his behalf and “the
annual premium . . . has been billed to an [escrow] account established for your loan.” 2
A few years later, on June 25, 2019, Wilmington filed a counterclaim against Smith
and a third-party complaint against LMM. Wilmington alleged that its mortgage “was filed
prior to the filing of the quitclaim deed,” and therefore, “any right, title, claim, or interest
held by [LMM] by virtue of [the] quitclaim deed should be declared junior, subordinate, and
inferior to any right, title, claim, or interest in the subject property held by Wilmington.”
Wilmington further alleged that it was entitled to foreclose on the Timber Valley Road
property because it was “owed the principal sum of $97,992.37” as well as accrued interest
and other costs.” Also, “the indebtedness due under the note has never been accelerated,
but even if it had been[,] the statute of limitations was tolled by affirmative abandonment of
acceleration by Wilmington and/or its predecessors’ interest.” In addition, Wilmington
alleged that “even if the loan had been accelerated, the statute of limitations for collection
of the mortgage re-started each time Wilmington or its predecessors in interest . . . made
insurance payments on the subject property.” Therefore, Wilmington requested that it be
granted, inter alia, “judgment in personam against Milton Smith and in rem against the subject
property for [the outstanding principal, interest, and costs]; that LMM’s interest in the
property be declared subordinate to Wilmington’s interest; a foreclosure of the mortgage,
and a sale of the property.
2
According to the record, Wilmington maintained insurance on the property through
at least February 2020.
5
Mr. Smith and LMM responded with a joint motion for summary judgment and
dismissal that they filed on July 22, 2019. Mr. Smith moved for summary judgment “as to
his complaint against [Wilmington] and [Bank of America].” He further moved for dismissal
of Wilmington’s counterclaim against him under Ark. R. Civ. P. 12(b)(6). LMM also invoked
Rule 12(b)(6) to move for the dismissal of Wilmington’s third-party claim against it.
According to the joint motion, “the relief sought by Smith and [LMM] is based on the same
grounds: the five-year statute of limitations to enforce the subject has run, barring [Bank of
America] and Wilmington from enforcing them.”
More particularly, Smith and LMM argued that “prior to assigning the note and mortgage
to Wilmington, [Bank of America] accelerated the indebtedness of the note so that the entire
amount of principal and interest were immediately due and payable.” That triggered the five-
year statute of limitations in section 16-56-111, they said, because Wilmington’s foreclosure
cause of action accrued when Bank of America’s attorneys “accelerated the entire
indebtedness of the note on or about May 4, 2010.” Therefore, the five-year statute of
limitations ran many years ago in May 2015,” and Wilmington “is barred from enforcing the
note and mortgage.”
Wilmington responded that the motions should be denied because its foreclosure
cause of action did not accrue when Bank of America first accelerated the debt in May 2010,
or when it accelerated the debt again in December 2010. Citing the supreme court’s decision
in Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), Wilmington argued
that “acceleration may be waived or abandoned through the unilateral actions of the
6
mortgagee,” and Bank of America waived its accelerations of the debt that occurred in May
2010 and in December 2010 when it filed the notices canceling their respective foreclosure
sales. Alternatively, Wilmington relied on Dunnington v. Taylor, 198 Ark. 770, 131 S.W.2d
627 (1939), and other cases to argue that even if its time began to run when Bank of America
first accelerated the debt in May 2010, the insurance payments that Wilmington made on
the Timber Valley property either tolled the statute of limitations or, as each payment was
made, provided “a new date from which limitations would run, just as a payment on the
mortgage indebtedness by the mortgagor would.”
Smith and LMM came back with an interesting reply. According to them, Mitchell
and Dunnington no longer served as binding precedent because they were legislatively
overruled by a 1989 amendment to section 16-56-111. The statute of limitation in effect
when the supreme court decided those cases, Pope Digest section 8933, simply provided that
“actions on promissory notes, and other instruments in writing, not under seal, shall be
commenced within five years after the cause of action shall accrue, and not afterward.”
Therefore, according to Smith and LMM, “the exceptions to the statute were apparently all
judicially created.”
Smith and LMM continued that the statute of limitations was materially changed in
1989 when the General Assembly amended it to include a tolling provision that “codified a
part of one of the judicially created exceptions to the statute, but not the rest of them.” They
pointed out that after the 1989 amendment, section 16-56-111(a) provided as follows:
7
Actions on promissory notes and on other instruments in writing not under seal shall
be commenced within five (5) years after the cause of action shall accrue, and not
thereafter. The cause of action shall be deemed to have accrued at the time when the
creditor first has the legal right to demand payment in full of the entire unpaid
principal of the instrument. However, partial payment or written acknowledgment of default
shall toll this statute of limitation.
Act 664 of 1989, § 1. The act further provided that “all laws and parts of laws in conflict
with this Act are hereby repealed,” Id. § 3, and Smith and LMM asserted that the repealer
clause, as well as the incongruity between the new tolling provision and the tolling recognized
in Mitchell and Dunnington, meant that those cases are no longer binding precedent. In their
words,
The General Assembly is presumed to have known the manner in which the Supreme
Court had construed this statute, including the judicially created exceptions and
tolling theories. The General Assembly expressly repealed all laws in conflict with the
amendment and codified in part an exception created by case law: “partial payment
or written acknowledgment of default shall toll this statute of limitations.” No other
judicially created exception or tolling theory was codified. That means that all prior
judicially created exceptions and tolling theories [including those from Mitchell and
Dunnington] were repealed.
Wilmington responded by filing a cross-motion for summary judgment on October
16, 2019. As it argued in its responses to Smith and LMM’s motions, Wilmington
maintained that Mitchell and Dunnington supported its argument that the statute of
limitations had not yet run on its action for foreclosure. It also responded that Act 644 did
not repeal the holdings of those cases because there was no “unmistakable language”
indicating a legislative intent to overrule them.
The circuit court held a hearing on all the foregoing motions on or about November
25, 2019, whereupon it requested posthearing briefs on Wilmington’s motion to dismiss
8
Smith’s complaint based on lack of standing and proof of proper service. Regarding service
of process, Wilmington asserted that the affidavit of service and summons were both fatally
defective. First, the affidavit was deficient because it failed to identify “which of the party
defendants was served with [Smith’s] summons and complaint.” Further, Smith could “not
prove that the affidavit acted as any sort of proof that Wilmington was served . . . when
Wilmington does not (and has never) maintained a physical office in the state of Arkansas,
and therefore, the individual allegedly served, Donna Austin, could not have been
authorized to accept service on behalf of Wilmington.” There was also no evidence that Ms.
Austin “had any affiliation with Wilmington whatsoever.” (Emphasis in original.) The
affidavit was also deficient, Wilmington said, because it “fails to contain a notary seal” and
therefore, was not a “sworn statement” as Rule 4 requires. As for the summons, Wilmington
asserted that it was defective because it failed to “identify the proper name for Wilmington.”
Wilmington’s posthearing brief also urged dismissal of Smith’s complaint because he
lacked standing to bring a quiet-title action in the first place. Citing cases ruling that “[a]
party has no standing to raise an issue regarding property in which he or she has no interest,”
Wilmington reminded the court that Smith transferred his interest in the property to LMM
via quitclaim deed in July 2010. Wilmington argued that dismissal of Smith’s complaint was
therefore warranted under Ark. R. Civ. P. 17 because Smith “has no interest in the subject
property, he is not a real party in interest, [and] he cannot state a claim to quiet title.”
Smith and LMM responded by arguing that Wilmington waived its lack-of-proper-
service claims because its counterclaim and third-party complaint acknowledged that the
9
circuit court had “jurisdiction of the subject matter and of the parties to [the] action.” They
further asserted that Wilmington’s counterclaim and third-party complaint were themselves
requests for affirmative relief that also operated to waive Wilmington’s claim that the circuit
court lacked personal jurisdiction over it.
The circuit court ruled on the motions for summary judgment and the motions to
dismiss in an order entered on February 21, 2020. In that order, the circuit court denied
Wilmington’s motion to dismiss based on insufficient service of process, finding that it
“admitted in [its] pleadings that this court has jurisdiction of the parties and the subject
matter,” and, in any event, “service was proper on both parties.” The circuit court also found
that “the five-year statute of limitations for [Wilmington] to foreclose on the subject property
has run.” Accordingly, the circuit court ruled that Smith’s “motion for summary judgment
and motion for dismissal of counterclaim (with prejudice) are granted; and [LMM’s] motion
for dismissal of third-party complaint with prejudice is granted.” Further, the circuit court
ruled that “[t]itle to the subject property is quieted in the name of [Smith’s] grantee, [LMM].”
On March 6, 2020, Wilmington filed a motion for a new trial and a request to modify
the judgment to include findings of fact and conclusions of law. In its motion, it urged the
circuit court to reconsider its ruling that Wilmington’s foreclosure action was barred by the
statute of limitations, arguing that it was contrary to the supreme court’s decisions in Mitchell
and Dunnington.
Wilmington also urged the court to reconsider its order granting relief to Smith and
LMM because the statute of limitations was “a personal defense [belonging to Smith] and
10
Smith is not a proper party in interest.” According to Wilmington, LMM had no right to
“assert the defense of limitations, as that defense in Arkansas law belongs solely to the person
aggrieved and cannot be assigned.” Moreover, “while Smith is a party to this suit, he may not
assert the limitations defense because . . . he no longer has an ownership interest in the
property and thus has no standing to challenge [Wilmington’s] right to foreclose.”
The circuit court denied Wilmington’s motion for a new trial in an order entered on
April 6, 2020. The court explained that it denied the motion because “the five-year statute
of limitations has run,” and “the 1989 amendment controls.” The circuit court also ruled
that “the standing argument raised by Wilmington was not raised previously and is denied,”
and in any event, “Smith did have standing.” As for Wilmington’s motion to dismiss based
on lack of proper service, the circuit court denied reconsideration because “Wilmington, in
its own pleadings, admitted that this Court has both personal and subject-matter
jurisdiction.”
II. Standard of Review
When a party appeals a grant of summary judgment, this court ordinarily examines
the record to determine if genuine issues of material fact exist. See First Nat’l Bank of Izard
Cty. v. Old Republic Title Ins. Co., 2022 Ark. App. 440, at 7, 655 S.W.3d 108, 112. That is
because summary judgment may be granted only when there are no genuine issues of
material fact to be litigated, and the moving party is entitled to judgment as a matter of law.
Id. When the parties file cross-motions for summary judgment, however, the standard of
review is different. Id. When parties file cross-motions for summary judgment, as they did
11
here, they essentially agree that there are no material facts remaining, and summary judgment
is an appropriate means of resolving the case. Id. When the parties agree on the facts, this
court simply determines whether the appellee was entitled to judgment as a matter of law.
Id. at 7, 655 S.W.3d at 112–13. Finally, “[i]n deciding issues of law, [the] standard of review
is de novo.” Id. “De novo review means that the entire case is open for review” id., and the
circuit court’s conclusions of law are not given any deference. See Houston v. Houston, 67 Ark.
App. 286, 287, 999 S.W.2d 204, 205 (1999).
III. Discussion
A. Personal Jurisdiction
Wilmington first argues that the circuit court erred by denying its motion to dismiss
because proof of proper service was lacking. It points out that the only summons in the
record was issued to Bank of America, and the affidavit of service “failed to identify the party
who was allegedly served with the complaint and summons issued and failed to include the
required notarization.” Wilmington also argues that it “presented evidence to establish that
the affidavit . . . could not have proved service upon [Wilmington] because it was purportedly
served in Arkansas, where [Wilmington] does not maintain any offices.” Wilmington further
argues that proof of proper service was lacking because the summons was purportedly “served
on an individual who was not employed or authorized to accept service on behalf of
[Wilmington].” We hold that the circuit court did not err when it determined that
Wilmington waived these objections to the court’s personal jurisdiction.
12
Service of valid process is necessary to give a court jurisdiction over a defendant. See
Johnson v. Schumacher Grp. of Ark., Inc., 2019 Ark. App. 545, at 11, 589 S.W.3d 470, 477.
“The defense of personal jurisdiction, however, may be waived by the appearance of the
defendant without raising an objection.” Id. (internal quotation marks omitted). “This court
has long recognized that any action on the part of a defendant, except to object to
jurisdiction, which recognizes the case in court, will amount to an appearance.” Id. “In
determining whether a defendant has waived his rights and entered an appearance, a
determining factor is whether the defendant seeks affirmative relief.” Id. That is, the pleading
that is filed must “be more than a defensive action.” Farm Bureau Mut. Ins. Co. v. Campbell,
315 Ark. 136, 141, 865 S.W.2d 643, 645–46 (1993). “The most obvious examples are
counterclaims, crossclaims, and third-party claims in which a defendant invokes the
jurisdiction of the court and thereby submits to it.” Cogburn v. Marsh, 2023 Ark. App. 114,
663 S.W.3d 404.
To be sure, Wilmington raised its objections concerning lack of proper service in the
motion to dismiss and alternative answer that it filed in response to Smith’s complaint to
quiet title. Nevertheless, it later sought affirmative relief in the form of a counterclaim against
Smith and a third-party complaint against LMM. Therefore, according to the cases set forth
above, Wilmington waived its objections to personal jurisdiction.
B. Standing
Wilmington also asserts that the circuit court erred by applying the statute of
limitations because Smith and LMM both lacked standing to challenge the foreclosure on
13
that basis. Smith, it says, lost standing to challenge the foreclosure on any ground when he
transferred his interest in the subject property to LMM in July 2010. Wilmington further
contends that the statute of limitations, which Smith first raised in his complaint to quiet
title, was a defense that was personal to him and, as such, could not be later invoked by
LMM, a third party to the note and mortgage. Because Wilmington failed to timely raise
both arguments in the circuit court, we reject them as procedurally barred.
A party generally must object at the first opportunity to preserve an issue for appeal.
See In re Estate of Smith, 2020 Ark. App. 113, at 18, 597 S.W.3d 65, 76. An argument that is
made for the first time in a motion for new trial, moreover, is not timely. Quarles v. Courtyard
Gardens Health & Rehab., LLC, 2016 Ark. 112, at 11, 488 S.W.3d 513, 521.
In the alternative answer that it filed below, Wilmington generally pleaded “lack of
standing,” as a defense to Smith’s complaint to quiet title. It raised standing again in its
posthearing brief where it challenged Smith’s standing to have title quieted in his name
because he had previously transferred his interest in the property to LMM via quitclaim deed
in July 2010. Wilmington did not specifically challenge Smith’s or LMM’s standing to raise
the statute of limitations as a defense, however, until it filed its new-trial motion.
Accordingly, we reject Wilmington’s challenges to Smith’s and LMM’s standing because they
are not preserved for appellate review.3
3
Wilmington’s arguments also lack substantive merit in any event. The property
interest that LMM acquired via the quitclaim deed gives it standing to challenge the
foreclosure based on the statute of limitations. See Jimerson v. Reed, 202 Ark. 490, 493, 150
S.W.2d 747, 748 (1941). Smith also has standing to raise the limitations defense because he
14
C. Mitchell and Dunnington
Wilmington further contends that it should prevail even if it waived its challenge to
personal jurisdiction and the appellees had standing to raise the statute of limitations. In a
nutshell, Wilmington argues that Mitchell and Dunnington each establish that the statute of
limitations had not run in this case, and the circuit court erred when it concluded that they
were no longer binding precedent after the General Assembly amended section 16-56-111 in
1989. Because we agree that Mitchell and Dunnington remain good law after the 1989
amendment, and Mitchell directs that Wilmington’s claim for foreclosure did not accrue
until it accelerated the debt in 2016, we reverse and remand.
A detailed discussion of Mitchell and Dunnington provides context to the statutory-
interpretation issue. The events in Mitchell began when two men, Rufus Smith and Hoyt
Smith, separately purchased two tracts of land in Logan County in 1927. Rufus and Hoyt
each executed notes with appellee Federal Land Bank of St. Louis (“the Bank”). Both notes
were secured with mortgages on the land and provided “that failure to make any payment
due would mature the entire obligation at the option of the payee.” Mitchell, 206 Ark. at 253,
174 S.W.2d at 673. The notes became delinquent in 1931, whereupon the Bank exercised
its option to accelerate the entire indebtedness and filed two suits for foreclosure. Id. The
remains the mortgagor on the subject property and therefore remains liable for any balance
due on the debt once it is sold. See Pulaski Fed. Sav. & Loan Ass’n v. Woolsey, 242 Ark. 612,
615, 414 S.W.2d 633, 635 (1967); see also State Farm Fire & Cas. Co. v. Andrews, 363 Ark. 67,
72, 210 S.W.3d 896, 900 (2005) (recognizing that “a party to the mortgage” and “a person
having an interest in the property” have standing to challenge a foreclosure).
15
following year, First National Bank of Paris (“First National”), obtained judgment liens on
both tracts of land. Id. First National eventually assigned its judgments to appellants Mitchell
and Shaw, who did not become parties to the foreclosure suits. Id.The circuit court entered orders dismissing the foreclosure suits without prejudice
approximately seven years after they were filed, on February 21, 1938. Id. The dismissal order
provided as follows:
And it appearing to the court that [Rufus and Hoyt] consent and agree to the
dismissal of said suit and further agree that the dismissal of same shall in no way affect
the mortgage and note sued upon . . . or impair the rights of [the Bank] and that they
unpaid portion of the mortgage indebtedness and the priority of [the Bank’s] lien
securing its payment shall be and remain in full force and effect as though the suit
had never been filed.
It is, therefore, considered, ordered, and decreed that said cause be and same
is hereby dismissed without prejudice[.]
It is further ordered and decreed that the dismissal of said suit shall in no way
affect the validity of the mortgage and note sued upon or impair the rights of [the
Bank] . . . and that same shall be and remain in full force and effect as through no
suit had been filed.
Id. at 673–74.
Almost two years later, on December 21, 1939, the Bank again filed foreclosure suits
on the 1927 notes and mortgages. Id. at 674. In each suit, the Bank alleged delinquencies
occurred in 1939 and exercised its option to accelerate the entire indebtedness and mortgage.
Id. Mitchell and Shaw were made defendants to the second foreclosure suits, and they argued
(1) that their judgment liens were superior to the Bank’s mortgage liens; and (2) that the
Bank had waived its right to accelerate the indebtedness and mortgages when it abandoned
16
the accelerations it made in 1931. Id. The circuit court disagreed, and Mitchell and Shaw
appealed.
On appeal, Mitchell and Shaw argued that the second foreclosure action was barred
by the five-year statute of limitations. Among other things, they argued “that when [the Bank]
exercised its option to accelerate the mortgages in 1931, such acceleration matured the
indebtedness and mortgages for all purposes, and limitations commenced at that time.” Id.
at 676. The supreme court rejected the appellants’ argument, holding that in the absence of
prejudice to another party, the maturity of the indebtedness that occurred upon the exercise
of the optional acceleration clauses in 1931 was extinguished when the Bank waived the
accelerations in 1938.
In particular, the court observed that its prior cases established that “when the
acceleration clause is of an optional type, then the creditor has the privilege of declaring the
acceleration and likewise waiving the acceleration.” Id. Indeed, “the right to accelerate the
indebtedness is exercised by the unilateral act of the creditor; and likewise, the right to waive
the acceleration may be exercised by the unilateral act of the creditor, in the absence of any
claim or showing that the debtor has changed position because of the acceleration.” Id. at
676–77. Because the Bank waived its acceleration, and there was “no allegation or showing
that any of the parties changed position by reason of the acceleration being declared in
1931,” the mortgages were “reinstated for all purposes, and with all provisions in full force and
effect[.]” Id. at 677 (emphasis added). It “necessarily followed,” therefore, “that the
17
mortgagee would have the right on subsequent default to avail itself [again] of the right of
acceleration.” Id.
In Dunnington, the appellants executed a note and deed of trust in favor of appellee
Taylor on April 20, 1929. See Dunnington, 198 Ark. at 770, 131 S.W.2d at 627. The note
was due and payable one year later. Taylor did not file his suit for foreclosure until June 4,
1938 (eight years later), whereupon the Dunningtons argued that the action was barred by
the five-year statute of limitations. Id.Taylor responded that the statute of limitations was tolled when the promissory note
was indorsed with a credit of $8.50 on April 1, 1935. Id. According to Taylor, the credit “was
indorsed on the record in the courthouse on the same date,” and the Dunningtons, by their
acts and conduct, “acknowledged the debt and thereby tolled the statute of limitations.” Id.The circuit court entered a decree in Taylor’s favor, and the Dunningtons appealed.
The supreme court affirmed, agreeing that the Dunningtons’ acknowledgment of the
debt waived the statute of limitations. Id. at 771, 131 S.W.2d at 628. The supreme court
went on to say, however, that the circuit court’s rejection of the Dunningtons’ limitations
defense “should be affirmed on an additional ground.” That is, that Taylor’s payment of fire
insurance premiums . . . under the terms of the deed of trust in question tolled the statute
of limitations.” Id.Specifically, the court noted that provisions in the deed of trust required the
Dunningtons to pay the cost of insurance on the property, and provided that in the event
they failed to do so, “Taylor might himself keep the property insured.” Id. at 773, 131 S.W.2s
18
at 628. The deed of trust further provided that any payments that Taylor made for insurance
“were advances for the benefit of [the Dunningtons], in effect made at [their] request,” and
for that reason “should be added to and become part of the principal debt ‘from the date of
such expenditures.’” Id. The court held that under these provisions, the payments that Taylor
made to maintain fire insurance on the property “were added to and made a part of the
original debt,” and thereby, tolled the statute of limitations. Id. at 774, 131 S.W. 2d at 629.
The supreme court elaborated on the rationale for its holding in Dalton v. Polster, 200
Ark. 168, 138 S.W.2d 64 (1940). There, the terms of the mortgage provided that Polster (the
mortgagee), would pay the taxes on the property in the event that Dalton (the mortgagor),
failed to do so, and “all money so expended . . . shall, without notice or demand, be and
become from the date of payment, a debt collectible at law, immediately due from [Dalton
to Polster] and shall be secured by this mortgage as fully and with like effect as the . . . [note].”
Id. at 170, 138 S.W.2d at 64–65. The record demonstrated that Polster paid the taxes on
the property within the limitation period, and the supreme court applied Dunnington to hold
that a foreclosure action was not barred by the statute of limitations. In doing so, the court
explained its rationale in the following helpful manner:
Appellees having paid the taxes, the law will imply a request from appellants to do so,
which constitutes an advancement to them under the mortgage and contemplated by
it when executed. But for the payments of taxes or redemptions from tax sales or both,
by appellee, appellants would have lost their land, presumably, and appellee his
security. Under such circumstances, it would be manifestly unjust and inequitable to permit
appellants to take advantage of their own wrong by pleading limitations against the original
debt.
19
Id., 138 S.W.2d at 65 (emphasis added); see also Young v. Blocker, 201 Ark. 802, 808, 146
S.W.2d 902, 904 (1941) (applying Dunnington to hold that mortgagees “kept the note alive
and tolled the statute of limitations” by paying taxes and insurance “up until the date of
trial”).
Considering the foregoing, we do not believe the legislature intended to overrule
Mitchell, Dunnington, and their related cases when it amended the statute of limitations in
1989. As we have said many times, “the basic rule of statutory construction is to give effect
to the intent of the legislature.” Moore v. Moore, 2016 Ark. 105, at 5, 486 S.W.3d 766, 771.
When construing a statute, this court construes a statute “just as it reads, giving the words
their ordinary and usually accepted meaning in common language.” Id. at 6, 486 S.W.3d at
771. When the language of a statute is plain and unambiguous, the court determines
legislative intent “from the meaning of the language used,” and it will not otherwise “search
for legislative intent.” Id. “Rather, that intent must be gathered from the plain meaning of
the language used.” Id. We will not engage, moreover, in statutory interpretations that defy
common sense and produce absurd results. See Clark v. Johnson Reg’l Med. Ctr., 2010 Ark.
115, at 8, 362 S.W.3d 311, 316.
In addition, “any interpretation of a statute by [the supreme court] subsequently
becomes a part of the statute itself.” McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19,
425 S.W.3d 671, 683. The General Assembly is also “presumed to be familiar with the
appellate courts’ interpretation of its statutes, and if it disagrees with those interpretations,
it can amend the statutes.” Id. The legislature must use unmistakable language, however, to
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indicate its intent “to require [a] court to pass again on a subject.” Martin v. Pierce, 370 Ark.
53, 63, 257 S.W.3d 82, 90 (2007). “Without such amendments, the appellate courts’
interpretations of the statute remain the law.” McCutchen, 2012 Ark. 452, at 19, 425 S.W.3d
at 683.
For years, the statute of limitations provided that “actions on promissory notes, and
other instruments in writing, not under seal, shall be commenced within five years after the
cause of action shall accrue, and not afterward.” E.g., Pope’s Digest § 8933. As indicated
above, the General Assembly amended the statute in 1989 to also say that “[t]he cause of
action shall be deemed to have accrued at the time when the creditor first has the legal right
to demand payment in full of the entire unpaid principal of the instrument,”4 but that
“partial payment or written acknowledgment of default shall toll this statute of limitation.”
Act 664 of 1989, § 1.
There is no indication that the General Assembly, by adding the foregoing tolling
provision, intended to overrule Mitchell, Dunnington, and all other judicially recognized
tolling principles. Tolling based on fraudulent concealment, for example, is still available
even after the 1989 amendment, see generally Beckworth v. Diamante, a Private Membership Golf
Club, LLC, 2010 Ark. App. 814, at 11, 379 S.W.3d 753, 760, and we recently recognized the
continued viability of Mitchell in Ocwen Loan Servicing, LLC v. Oden, 2020 Ark. App. 384,
609 S.W.3d 410.
4
This sentence was removed from the statute in 1991. See Act 1048 of 1991, § 1.
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There is also no unmistakable language suggesting that the General Assembly
intended to allow “the manifestly unjust and inequitable result” avoided by Dunnington and
its related cases, or that it intended to abrogate the waiver principles discussed in Mitchell.
Indeed, Mitchell does not conflict with the amendment in any way, as it addressed only the
point at which a foreclosure claim accrues (at the maturity of the debt) and not when the
statute of limitations, once the cause of action has accrued, stops running. Therefore, for
these reasons, we hold that the circuit court erred to the extent that it found that the 1989
amendment overruled Mitchell and Dunnington.
With that said, we think Mitchell alone establishes that Wilmington’s foreclosure
action was not barred by the statute of limitations. Applying Mitchell to the undisputed facts
here, we agree that the maturities of the debt that occurred when Bank of America exercised
its option to accelerate in May and December 2010 were extinguished when the bank waived
the accelerations by filing the notices of cancelation on July 8, 2010, and February 17, 2011,
respectively. The note did not mature again until Wilmington exercised the option to
accelerate in 2016. Accordingly, Wilmington’s complaint for foreclosure, which it filed three
years later, on June 25, 2019, was not barred by the five-year statute of limitations.
D. Motion for New Trial
In its final argument, Wilmington contends that the circuit court erred when it
denied its motion for a new trial and its request to enter additional findings of fact and
conclusions of law pursuant to Ark. R. Civ. P. 52(b)(1). A new trial was warranted, it says,
because the circuit court’s judgment “completely relied on [Smith and LMM’s] baseless
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misinterpretation of the 1989 amendment” as well as their arguments “that the amendment
effectively repealed the precedent of Mitchell and the companion cases.” Wilmington further
argues that more findings of fact and conclusions of law were warranted to support the circuit
court’s reversal of these “long standing and relied upon rule[s] of law.”
We decline to reach these issues because we agree that the circuit court erred by
applying the statute of limitations to bar Wilmington’s claims, and we reverse on that basis.
The question whether the circuit court erred by denying the request to modify the judgment,
moreover, is not likely to occur on remand.
IV. Conclusion
The circuit court did not err when it determined that Wilmington waived its
objection to personal jurisdiction. Wilmington’s challenges to Smith and LMM’s standing
to raise the statute of limitations also are not preserved for appellate review. The circuit court
erred, however, when it applied the statute of limitations to bar Wilmington’s claim for
foreclosure.
Reversed and remanded.
KLAPPENBACH AND GRUBER, JJ., agree.
Mackie Wolf Zientz & Mann, PC, by: Emily J. Reynolds, for appellant.
Niswanger Law Firm PLC, by: Stephen B. Niswanger, for appellees.
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