Jade Property Holdings, LLC Jonathan J. Dunkley Jacquelyn Castaing Dunkley And Bellatori, LLC v. First Service Bank

2024 Ark. App. 414

• Court: Court of Appeals of Arkansas
• Decided: September 11, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 414 ARKANSAS COURT OF APPEALS DIVISION I No. CV-22-125

JADE PROPERTY HOLDINGS, LLC; Opinion Delivered September 11, 2024

JONATHAN J. DUNKLEY; JACQUELYN APPEAL FROM THE WHITE CASTAING DUNKLEY; AND COUNTY CIRCUIT COURT BELLATORI, LLC [NO. 73CV-20-384] APPELLANTS

HONORABLE DANIEL C. BROCK, V. JUDGE

FIRST SERVICE BANK AFFIRMED APPELLEE

ROBERT J. GLADWIN, Judge

This case is about a dispute between borrowers and their lending bank. The appellants

borrowed more than $2 million to purchase and repair an apartment complex, much of

which was not repaid. The circuit court granted summary judgment for foreclosure in favor

of the bank and dismissed the borrowers’ counterclaims. The borrowers appealed the circuit

court’s order.

We affirm the circuit court’s order.

I. Factual Background

In 2018, Jacquelyn and Jonathan Dunkley retired from their jobs to become real

estate investors. They decided to purchase a sixty-two-unit apartment complex across from

Harding University that they estimated would cost more than $870,000 to renovate. The Dunkleys then formed Jade Property Holdings, LLC (“Jade”), to act as the property owner;

and Bellatori, LLC (“Bellatori”), to hold their retirement funds. The Dunkleys, Jade, and

Bellatori are the appellants.

Throughout 2018, the Dunkleys met with Matt Carter, a loan officer with First

Service Bank (“FSB”), to discuss various aspects of the potential investment, including

financing. On August 16, Jade executed a contract to purchase the property for $1.1 million.

On October 5, the appellants closed on the loan to finance the project. The loan documents

consist of the following: (1) a commercial construction loan agreement and business loan

agreement (together, the “Loan Agreement”); (2) a commercial promissory note with a

principal of $1,128,203 (the “6587 Note”); (3) a commercial promissory note with a principal

of $150,000 (the “6617 Note”); (4) a commercial promissory note with a principal of

$850,000 (the “6618 Note”); (5) a commercial construction real estate mortgage granting

FSB a first mortgage lien on the property; and (6) an unlimited continuing guaranty executed

by the Dunkleys and Bellatori guaranteeing all three promissory notes. The 6587 Note was

used to provide the purchase money for the property. The 6617 Note and the 6618 Note

were used to provide a line of credit for the repairs to the property.

All the promissory notes had maturity dates of October 15, 2019, which was written

prominently on the first page of each note. The Loan Agreement stated, “Lender may stop

making Advances for Work and performing any other obligations under the Loan

Documents.” It also stated, “Lender shall not be required to make any Advance until the

Draw Request is approved by its representatives.” The 6617 and 6618 Notes also contained

2 the following provision: “Advances by Lender under this Note are discretionary and the

Lender may, in its sole discretion, refuse to make advances.”

After closing on the property and the loan, the Dunkleys took possession and began

renovations. They took advances as planned and without incident from the loan between

October 5 and February 2019. Both the 6617 Note and the 6618 Note listed the loan

purpose as “remodel apartment complex.” FSB noticed in January 2019 that although 75

percent of the loan proceeds had been advanced, only 45 percent of the project had been

completed, and FSB believed the Dunkleys had used some of the money for personal

expenses. The appellants claimed in their depositions that they told Carter they would be

using some of the loan for personal expenses.

On February 15, FSB froze the loan account, causing some contractors’ payments to

bounce. By this point, FSB had made $709,266.38 in advances. Although FSB paid the

bounced checks, it did not advance any further funds until after the appellants had signed a

supplemental loan agreement.

On July 15, the appellants signed the supplemental agreement (the “Supplemental

Agreement”), which modified the promissory notes to extend the maturity dates and added

an additional $75,000 in available funds to the 6618 Note. The Supplemental Agreement

also reduced the interest rates on the promissory notes from 5.95 percent to 5.5 percent and

4.5 percent. The Supplemental Agreement also contained a release of claims that the

appellants had or may have against FSB. Jade took additional draws from the line of credit

after signing the Supplemental Agreement.

3 Jade defaulted on the loan by failing to make payments starting in March 2020. The

6617 and 6618 Notes each matured on April 15, 2020, and the 6587 Note matured on May

15, 2020. Neither the Dunkleys nor Bellatori made payments on the promissory notes.

Additionally, the insurance coverage on the property lapsed in April of 2020, even though

the Loan Agreement required the appellants to insure the property. At this point, FSB

purchased insurance for the project.

As of July 24, 2020, Jade owed $1,137,610.21 on the 6587 Note. FSB held a $150,000

CD as collateral, which it used to pay the outstanding balance on the 6617 Note and applied

the remaining amount to the 6618 Note. As of July 24, 2020, the Dunkleys and Bellatori

owed $886,056.92 on the 6618 Note.

FSB filed a complaint against the appellants for breach of contract and foreclosure.

The appellants then filed a counterclaim against FSB alleging negligence, breach of contract,

intentional interference with business expectancy, intentional interference with contractual

relations, deceptive trade practices, unjust enrichment, violation of the CARES Act, fraud,

misrepresentation, and deceit. The counterclaim asked for a declaratory judgment,

injunctive relief, and punitive damages.

FSB moved for summary judgment on its claims and against the appellants’

counterclaims. The circuit court granted FSB’s motion for summary judgment. The

appellants appealed the summary-judgment order.

II. Standard of Review

4 The standard of review for summary-judgment appeals is well settled. This court first

considers whether the moving party established a prima facie showing of entitlement to

summary judgment. Manley v. Zigras, 2024 Ark. App. 168, at 3, 686 S.W.3d 561, 565. The

moving party bears the burden of showing that no material questions of fact remain. Id. at

4, 686 S.W.3d at 565. The moving party’s proof is to be viewed in the light most favorable

to the party opposing the motion, and any doubts are resolved against the moving party. Id.

If the moving party establishes its prima facie case, then the “the opposing party must meet

proof with proof and demonstrate the existence of a material issue of fact.” Id. at 5, 686

S.W.3d at 566. In meeting proof with proof, “speculation and conjecture are not sufficiently

definite or precise to prove a genuine issue of material fact.” Id. at 6, 686 S.W.3d at 566.

“Summary judgment is no longer viewed by this court as a drastic remedy; rather, it

is viewed simply as one of the tools in a circuit court’s efficiency arsenal.” Reggans v.

Schlesinger, 2024 Ark. App. 227, at 8, 687 S.W.3d 387, 393. When it is clear there are no

genuine issues of material fact to be litigated, the moving party is entitled to judgment as a

matter of law, and this court will affirm. Id.

III. Analysis

A. Breach of Contract and Foreclosure

The appellants make four arguments asserting why they believe the circuit court erred

in granting summary judgment on FSB’s foreclosure and breach-of-contract claims. We

address each argument separately.

1. Whether FSB committed the first material breach that prevented performance

5 The appellants argue their breach was excusable because FSB committed the first

material breach of the Loan Agreement and prevented their performance under the contract.

The first material breach, they argue, was FSB’s freezing the loan in February 2019. The

appellants argue that because the account was frozen, they were unable to finish the project

and find tenants to rent the units.

The appellants have not met proof with proof to establish a material issue of fact.

Although their argument is that the February 2019 freeze prevented them from finishing the

project, the account records show that the appellants took additional draws after June 2019

and were able to continue making payments through March 2020. There is no evidence that

the freeze made it impossible for the appellants to finish the project. Although the freeze did

cause some bounced checks, FSB paid those checks. It is undisputed that work continued

after the freeze had been lifted, and that was the breach appellants cited as relevant in their

arguments before the circuit court.

The freeze was lifted after the appellants signed the Supplemental Agreement, and

the appellants claim that FSB started requesting lien waivers from contractors after that time.

Although the appellants say in their briefs that the requirement for lien waivers made it

“difficult and basically impossible” to hire contractors, they do not present any evidence they

were unable to hire contractors. Many of the draws after June 2019 are substantial. The only

evidence appellants cite that they were unable to hire contractors even after June 2019 is

Jonathan’s testimony at his deposition that, after June 2019, FSB asked for items such as lien

wavers that one attorney told him were impossible for anyone to complete. First, this

6 testimony is about what FSB allegedly asked for, and nowhere does Jonathan say that he was

unable to hire contractors. Additionally, Jonathan is repeating hearsay from an attorney who

was not involved in the case. Hearsay that is not admissible at trial does not establish a

material fact in analyzing a summary-judgment motion. Am. Gamebird Rsch. Educ. & Dev.

Found., Inc. v. Burton, 2017 Ark. App. 297, at 5, 521 S.W.3d 176, 178. Finally, the

requirement for lien waivers was not a breach of the contract because both the Loan

Agreement and the Supplemental Agreement gave FSB the option to require lien waivers.

The appellants have not shown how the breach affected their ability to finish the

project, and we also note that the Loan Agreement, the promissory notes, and the

Supplemental Agreement give FSB sole discretion in deciding whether to make advances.

Although the appellants assert that FSB wanted to cause a default in order to foreclose on a

valuable property that had already been improved, they do not cite any evidence to that

effect. Unsupported conclusory statements are not disputed material facts that could

overcome a movant’s prima facie entitlement to summary judgment. See Manley, 2024 Ark.

App. 168, at 6, 686 S.W.3d at 566.

The appellants have shown no disputed material facts that would show FSB breached

the agreement, much less committed a material breach that hindered their ability to

complete the project.

2. Whether the supplemental agreement was void

The appellants further argue that the Supplemental Agreement was void because it

was procured through duress and because it was unconscionable for the same reason as the

7 original Loan Agreement. As we note in the next section, the unconscionability argument

was not preserved.

As to duress, the appellants do not establish a disputed material fact that would show

they were under duress when they entered into the Supplemental Agreement. To establish

that a contract should be void due to duress, the appellant must show that “he or she

involuntarily accepted the terms of the opposing party, that the circumstances permitted no

other alternative, and that the circumstances resulted from coercive acts by the opposing

party.” Levitt v. Today’s Bank, 2022 Ark. App. 343, at 9, 653 S.W.3d 501, 507. Indeed, the

appellants “must show that the duress resulted from the other party’s wrongful and

oppressive conduct and not by his own necessity. In addition, he must show that the

wrongful conduct deprived him of his own free will and volition.” Id. at 9–10, 653 S.W.3d

at 507. It is not enough to show reluctance or the possibility of financial embarrassment. Id.

The appellants contend they were reluctant to accept the Supplemental Agreement

and that refusing to accept it would have led to foreclosure. This would constitute financial

embarrassment that does not rise to the level of a threat of a grievous wrong, great bodily

injury, or unlawful imprisonment. In Levitt, this court held that the jury could have found

duress in a circumstance where the bank threatened to report the borrowers to criminal

authorities and to foreclose on the borrowers’ home. That is not what happened here. Even

if FSB did state that it would foreclose on the Loan Agreement, FSB had the ability to do

that under the contracts between the parties. It was not threatening any penalty or grievous

circumstance that the parties had not already agreed to.

8 3. Whether the contract was unconscionable and procured through undue influence

The appellants also argue that the Loan Agreement was unenforceable because it was

unconscionable and because FSB committed undue influence. The argument was not

preserved below, so we do not address it on the merits.

“Conclusory assertions and general statements do not rise to the level of developed

argument that preserves an issue for appellate review.” Petit Jean Elec. Coop. Corp. v. Ark. Pub.

Serv. Comm’n, 2022 Ark. App. 215, at 29, 646 S.W.3d 123, 141 (citing Nat’l Bank of Com. v.

Quirk, 323 Ark. 769, 782, 918 S.W.2d 138, 145 (1996)).

In their response to the summary-judgment motion, the appellants state,

[Appellants] request this Court declare, for reasons alluded to herein, all claims of First Service are barred by the doctrine of unclean hands and that this Court declare the contracts between First Service and [appellants] which forms part of the subject matter of this lawsuit as void ab initio as unconscionable and against the public interest. First Service exerted and acted to cause duress, has unclean hands, exerted undue influence and committed unconscionable acts in inducing [appellants] into the loans or any modification of the loans that are the subject of this action.

This is a conclusory statement that the Loan Agreement was void because it was

unconscionable and procured through undue influence, which does not rise to the level of

a developed argument that is preserved for review. The appellants also did not develop an

argument at any hearing that the Loan Agreements were unconscionable or the product of

undue influence.

This is similar to an argument the supreme court analyzed in National Bank of

Commerce, 323 Ark. 769, 918 S.W.2d 138. In that case, one party stated at a hearing, “I think

9 this whole statute is unconstitutional.” Id. at 780, 918 S.W.2d at 144. That party used the

same conclusory statement in several pleadings. Id. at 780–81, 918 S.W.2d at 144–45. The

supreme court held that such statements were not sufficient to preserve an issue for appeal.

Id. at 782, 918 S.W.2d at 145.

Similarly, here the appellants did not develop the arguments below, and they are now

procedurally barred.

B. Appellants’ Counterclaim

The appellants filed a counterclaim against FSB for negligence, breach of contract,

intentional interference with business expectancy, intentional interference with contractual

relations, deceptive trade practices, unjust enrichment, violation of the CARES Act, fraud,

misrepresentation, and deceit. The counterclaim asked for a declaratory judgment,

injunctive relief, and punitive damages. In their brief before this court, the appellants do not

make any arguments regarding negligence, deceptive trade practices, unjust enrichment,

violation of the CARES Act, declaratory judgment, or injunctive relief. Therefore, this court

need not address those counterclaims.

The appellants argue in their briefs that FSB committed the first breach, which would

equally apply to the appeal of the dismissal of their counterclaim for breach of contract. As

stated above, we affirm the circuit court’s order on that point.

As for the other claims in appellants’ briefs, appellants list the elements of the

counterclaim and then merely state that a reasonable jury could determine FSB was liable

for the cause of action “by the facts stated above[.]” For intentional interference with

10 contractual relations and punitive damages, the appellants do not even list elements and

instead present one or two conclusory sentences that a jury should decide the claim.

This court “will not consider arguments not supported by convincing argument or

citation to authority.” Sanders v. JLP, LLC, 2024 Ark. App. 65, at 6, 683 S.W.3d 607, 611.

This court also will not make appellants’ arguments for them. Id. “[T]he failure to cite legal

authority or develop a point legally or factually is sufficient to affirm the trial court’s order.”

Id. (citing Williams v. Baptist Health, 2020 Ark. 150, 598 S.W.3d 487). Further, as to punitive

damages, a bare allegation is not sufficient to demonstrate malice. Williams, 2020 Ark. 150,

at 20, 598 S.W.3d at 501.

In their reply brief, the appellants cite some facts regarding the intentional-

interference claims. However, those facts are insufficient to develop the point on appeal, and

even if the facts did give rise to the intentional-interference claims, this court does not

consider arguments made for the first time in a reply brief. Sanders v. Passmore, 2016 Ark.

App. 370, at 6, 499 S.W.3d 237, 242.

For these reasons, we affirm the circuit court’s order granting summary judgment in

favor of FSB and dismissing the appellants’ counterclaims.

Affirmed.

KLAPPENBACH and GRUBER, JJ., agree.

Worlow Law, by: Jacob Worlow, for appellants.

The Jiles Firm, P.A., by: Gary D. Jiles and Matthew K. Brown, for appellee.