{ "id": 1159727, "name": "Robbie R. JONES v. DOUBLE \"D\" PROPERTIES, INC., an Arkansas Corporation and Charlie Daniels, Commissioner of State Lands, State of Arkansas v. Buck D. JONES", "name_abbreviation": "Jones v. Double \"D\" Properties, Inc.", "decision_date": "2003-02-20", "docket_number": "02-717", "first_page": "39", "last_page": "55", "citations": [ { "type": "official", "cite": "352 Ark. 39" }, { "type": "parallel", "cite": "98 S.W.3d 405" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "270 Ark. 774", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709156 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "noting that the rule has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, so long as it was clear that all the relevant evidence was in the record or the issue was clearly one the parties contemplated as being before the court" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0774-01" ] }, { "cite": "336 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51189 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ark/336/0432-01" ] }, { "cite": "27 Ark. App. 154", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139355 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "allowing a party to raise an objection for the first time in a motion for new trial would give them \"license to lie behind the log,\" waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities" }, { "parenthetical": "allowing a party to raise an objection for the first time in a motion for new trial would give them \"license to lie behind the log,\" waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities" } ], "opinion_index": 0, "case_paths": [ "/ark-app/27/0154-01" ] }, { "cite": "270 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709197 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0485-01" ] }, { "cite": "264 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669076 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0197-01" ] }, { "cite": "341 Ark. 231", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257781 ], "weight": 5, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0231-01" ] }, { "cite": "350 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404476 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "476-77" } ], "opinion_index": 0, "case_paths": [ "/ark/350/0466-01" ] }, { "cite": "313 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914581 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0570-01" ] }, { "cite": "320 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451223 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0015-01" ] }, { "cite": "269 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712465 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0336-01" ] }, { "cite": "335 Ark. 63", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862799 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0063-01" ] }, { "cite": "261 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678971 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0016-01" ] }, { "cite": "281 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742353 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0485-01" ] }, { "cite": "338 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243418 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0289-01" ] }, { "cite": "64 Ark. App. 181", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139471 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ark-app/64/0181-01" ] }, { "cite": "286 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719363 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0238-01" ] }, { "cite": "313 Ark. 692", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914598 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0692-01" ] }, { "cite": "Ark. Code Ann. \u00a7 26-37-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "336 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51189 ], "weight": 2, "year": 1999, "opinion_index": 2, "case_paths": [ "/ark/336/0432-01" ] } ], "analysis": { "cardinality": 1060, "char_count": 29422, "ocr_confidence": 0.72, "pagerank": { "raw": 4.0250152666091534e-07, "percentile": 0.906780086406582 }, "sha256": "4362d7b2bfef7fd068e6d56da801734fbc78aeda53146c7755c5f97072b8d28b", "simhash": "1:9ffe812fa10c9565", "word_count": 5011 }, "last_updated": "2023-07-14T21:39:04.439665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown and Imber, JJ., concur." ], "parties": [ "Robbie R. JONES v. DOUBLE \u201cD\u201d PROPERTIES, INC., an Arkansas Corporation and Charlie Daniels, Commissioner of State Lands, State of Arkansas v. Buck D. JONES" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis case involves a married couple, tice. Buck Jones, who reside in Ft. Smith. Robbie Jones was the record owner of their resident property since 1963, and, over the ensuing years, she handled the payment of the couple\u2019s taxes and bills. However, beginning in 1996, Mrs. Jones stopped paying her real estate taxes. As a result, she became delinquent on her real property taxes, which led to the sale of the land to Double \u201cD\u201d Properties, Inc. After the sale and the State Land Commissioner\u2019s issuance of a limited warranty deed to Double \u201cD\u201d, Mrs. Jones brought suit against Double \u201cD\u201d and the Commissioner. She alleged the Commissioner had failed to comply with the notice provisions of Act 626 of 1983, as amended, and, therefore, the sale was void and the Commissioner\u2019s deed should be cancelled. Double \u201cD\u201d and the Land Commissioner answered, denying Mrs. Jones\u2019s allegation, and, in addition, Double \u201cD\u201d counterclaimed, seeking an order directing Mrs. Jones to vacate. Double \u201cD\u201d subsequently filed a third-party complaint against Buck Jones, seeking the same relief as previously requested against Robbie. Robbie\u2019s attorney filed an answer on Mr. Jones\u2019s behalf, reasserting the Joneses\u2019 claims that the sale of their residence was not in compliance with Act 626.\n. This dispute was tried on November 2, 2001. The trial judge, by letter opinion entered on January 2, 2002, held that the Commissioner\u2019s sale of the Joneses\u2019 delinquent property complied with Act 626, and the Commissioner\u2019s deed issued to Double \u201cD\u201d was valid. Following the judge\u2019s ruling, Buck Jones\u2019s new attorney filed a counterclaim, alleging that the Joneses\u2019 property had been illegally assessed, that an unlawful, unconstitutional amount of taxes had been imposed, and, therefore, the Commissioner\u2019s deed should be set aside. In addition, Mrs. Jones tried to question Act 626\u2019s notice requirements as being unconstitutional and depriving the Joneses of their rights of due process. The trial court considered these new arguments at a hearing on March 1, 2001, and it entered two orders on April 12, 2002, holding again that the Commissioner had strictly complied with the notice of provisions of Act 626, and further deciding that the Joneses had failed to raise their constitutional arguments in a timely manner. The Joneses challenge the trial court\u2019s decisions in this appeal.\nWe first address whether the State Land Commissioner complied with the notice requirements of Act 626. The pertinent provision is codified at Ark. Code Ann. \u00a7 26-37-301 (Repl. 1997), which provides as follows:\n(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner\u2019s last known address, by certified mail, of the owner\u2019s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.\n(2) All interested parties known to the Commissioner of State Lands shall receive notice of the sale from the Commissioner of State Lands in the same manner.\n(b) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale. The notice shall also indicate the sale date, and that date shall be no earlier than two (2) years after the land is certified to the Commissioner of State Lands.\nIn cases involving redemption of tax-delinquent lands, this court has stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his or her property. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993); Trustees of First Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985).\nIn Wilson v. Daniels, 64 Ark. App. 181, 980 S.W.2d 274 (1998), a case much like the one before us, our court of appeals construed \u00a7 26-37-301. There, appellant lived in El Dorado Hills, California, but owned property in Pine Bluff. Taxes on the Pine Bluff property had not been paid since 1990, and the property was certified delinquent in July of 1994. On September 15, 1994, the Land Commissioner mailed a certified letter to Wilson\u2019s last known address in the tax records notifying her that the taxes on the Pine Bluff property were delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. The letter was addressed to Wilson in Folsom, California; it was returned marked \u201cattempted not known.\u201d Upon learning of Wilson\u2019s correct address, a second certified letter was mailed to her on June 25, 1996, in El Dorado Hills, California, notifying her that the property was delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. This letter was returned \u201cunclaimed or refused.\u201d\nWilson denied ever receiving either of the letters mailed by the Land Commissioner, and she testified that she had called the county and state offices to inquire why she had not received her tax statements; she also gave that office her correct address. The trial court found that there was a problem with the address and tax billings from the tax office; however, the court concluded that the first notice that was mailed to the wrong address was cured by the second letter that was mailed to the correct address. The court ruled that the Commissioner had fully complied with the applicable statutes.\nOn appeal, the Wilson court affirmed, stating that Ark. Code Ann. \u00a7 26-37-301 \u201cprovides that after receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner of his/her right to redeem, notify that the land will be sold, and notify the owner of the sale date.\u201d Wilson, 64 Ark. App. at 184. The court continued as follows:\nUnder this section, the Commissioner is required to notify the owner, at the owner\u2019s last known address by certified mail. After reviewing the evidence, it is clear that the Commissioner, subsequent to receiving the tax-delinquent land, sent certified notice to [Wilson\u2019s] last known address. Even though the first notice mailed by the Commissioner was mailed to the wrong address, the Commissioner sent a second notice to the correct address of [Wilson] where she had resided since 1980. We cannot say that the chancellor\u2019s decision that the second notice satisfied the statutory requirement was clearly erroneous.\nId.\nThe Wilson case is factually analogous to the present case. In both instances, the certified letter was returned marked \u201cunclaimed.\u201d Nevertheless, in Wilson, the court of appeals held that the Commissioner had complied with the requirements of the statute. In the instant case, the testimony was undisputed that the Commissioner mailed a certified letter, as required, and that the post office made the appropriate attempts to deliver it. The statute does not require the Land Commissioner to take every step possible to see that the letter arrives in the property owner\u2019s hand; it only requires that the Commissioner \u201cshall notify the owner, at the owner\u2019s last known address, by certified mail, of the owner\u2019s right to redeem [the property.]\u201d\nJones concedes that this case is factually similar to Wilson, but asserts that the court of appeals nevertheless \u201cexpressed reservations about deficiencies in the notice.\u201d The \u201creservations,\u201d however, consisted of the court\u2019s concern about the timing of the notice \u2014 i.e., that it could be sent relatively close in time to the time of the sale. That precise question was never an issue in this case, as it was undisputed that the notice was sent a full two years before the scheduled sale date.\nFurther, Jones argues in her brief that strict compliance with the statute is required, and that, because the Legislature required the notice to be sent via certified mail, that was a clear indication that the legislature intended that the taxpayer be given actual notice of the jeopardy to his property. However, in construing a statute, it is the court\u2019s duty to construe it just as it reads. St. Paul Fire & Marine Ins. v. Griffin Const., 338 Ark. 289, 993 S.W.2d 485 (1999); Heard v. Payne, 281 Ark. 485, 665 S.W.2d 865 (1984); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). When we construe a statute, we look first at the plain language of the statute and give the words their plain and ordinary meaning. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Griffin Constr., supra. Here, the statute requires notice \u201cby certified mail.\u201d The Land Commissioner sent notice to Jones by certified mail. Therefore, the trial court did not err in concluding that the Commissioner had strictly complied with the statute.\nNext, the Joneses argues that the trial court erred in concluding that Mrs. Jones\u2019s constitutional arguments were not timely. In its April 12, 2002, order, dealing with the issues raised in Mrs. Jones\u2019s \u201cpost trial brief,\u201d the trial court noted first that the matter was tried to the court on November 2, 2001. After receiving post-trial briefs, the court entered a letter opinion on January 2, 2002, and requested that counsel for Double \u201cD\u201d prepare a precedent and present copies to the other attorneys; if no objections were received within five days, the precedent would be signed and entered. The April 12 order then noted that Mrs. Jones \u201cfiled [a] post-trial brief [on January 16, 2002], which the court consider [ed] a motion for new trial, within the five days. The judgment has not been signed and entered pending resolution of the issues presented in [Mrs. Jones\u2019s] motion and the responses filed by [Double \u201cD\u201d and the Land Commissioner].\u201d\nThe January 16 motion filed by Mrs. Jones alleged that Act 626 of 1983 was constitutionally defective as to its notice requirements with respect to the right of redemption, and that it was therefore a deprivation of her right of due process. In her brief, Jones argued that she and her husband had a vested interest in the property in question that entitled them to actual notice of the proceedings, and that mere compliance with the statutory scheme did not satisfy the requirements of due process. Further, Jones asserted that the fact that no notice whatsoever is required for the second redemption period under the statute, which runs for a period of thirty days from the time that the land commissioner issues the tax deed; the omission of any notice requirement about the second redemption period also rendered the statute unconstitutional.\nIn its order denying Jones\u2019s motion, the trial court found that the constitutional issues were never raised at trial by Mrs. Jones, and that she had not properly objected to the alleged error of law, as is required by Ark. R. Civ. P. 59(a)(8). The court submitted that the only possible ground for a new trial was Rule 59(a)(8), which provides that a new trial may be granted when there has been an error of law occurring at the trial and objected to by the party making the application. Therefore, the court wrote, \u201csince the aggrieved party has failed to establish grounds, pursuant to Rule 59(a), for granting a new trial, the court does not have the authority to open the record to amend its findings of fact and conclusions of law.\u201d\nOn appeal, Mrs. Jones asserts that the trial court erred in concluding that her constitutional issues were not properly raised. She maintains that Rule 59 was inapplicable, because no judgment had yet been entered as of the date she filed her motion, and, for the first time, she asserts that \u201cit would have been more proper that the motion ... be treated by the court as being governed by Rule 52(b)(1).\u201d Rule 52 pertains to requests for findings by the trial court, and permits a party to move the trial court to amend its findings of fact within ten days after entry of judgment. Here, however, Jones never suggested to the trial court that it should consider her motion as a request for findings under Rule 52.\nIn any event, the trial court did not err in concluding that Jones\u2019s raising of the constitutional issue was untimely. Ark. R. Civ. P. 59 governs the granting of new trials, and provides that a new trial may be granted for any a number of grounds materially affecting the substantial rights of a party, including, as noted above, an error oflaw occurring at the trial and objected to by the party making the application. Ark. R. Civ. P. 59(a)(8). The Rule further states that, \u201c[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions oflaw or make new findings and conclusions, and direct the entry of a new judgment.\u201d\nRule 59(b) establishes when a new trial motion shall be filed, and reads as follows:\n(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.\n(Emphasis added.)\nOur case law is well-settled that a motion for new trial is addressed to the sound discretion of the trial court, and the trial court\u2019s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Sharp Co. v. Northeast Ark. Planning & Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993).\nThe trial court here found that the issues raised in Mrs. Jones\u2019s motion for new trial were not timely raised, and therefore, the court denied her motion. This decision was correct. This court has repeatedly held that an objection first made in a motion for new trial is not timely. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Stated another way, an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, and even a constitutional issue must be raised at trial in order to preserve it for appeal. Foundation Telecom., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). A party may not wait until the outcome of a case to bring an error to the trial court\u2019s attention. Id. The court in Lee, supra, stated further on this issue as follows:\nIn Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), this court noted that the reason for requiring an objection before the trial court is to discourage \u201csandbagging\u201d on the part of lawyers who might otherwise take a chance on a favorable result, and subsequently raise a constitutional claim if the gamble did not pay off. Selph, 264 Ark. at 204. See also Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hodges v. State, 27 Ark. App. 154, 767 S.W.2d 541 (1989) (allowing a party to raise an objection for the first time in a motion for new trial would give them \u201clicense to lie behind the log,\u201d waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities). Because Fowler failed to raise her constitutional claim until her motion for new trial, the question is not preserved for our review.\nLee, 350 Ark. at 476-77.\nClearly, then, a party may not raise a constitutional objection for the first time in a motion for new trial. The problem here, as has been discussed, is that, at the time Mrs. Jones filed her \u201cmotion for new trial,\u201d the trial court had not entered a final order; instead, it had only issued its letter opinion dated December 27, 2001, informing the parties how the court was going to rule. However, Rule 59(b) provides that a \u201cmotion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered.\u201d Here, the judgment was entered on April 12, 2002, which would cause the motion to become effective and be treated as filed on April 13, 2002. Applying the rules in this manner leads to the same conclusion \u2014 i.e., that the constitutional issues were not raised timely. This result serves the purpose of the rule, discussed in Lee, supra: a party should not be permitted to wait until he or she knows how the trial court is going to rule, and then \u201csubsequently raise a constitutional claim if the gamble [does] not pay off.\u201d Therefore, we conclude that the trial court did not err in finding that Jones\u2019s constitutional arguments were not timely.\nAs previously discussed, Buck Jones was initially brought into this case as a third-party defendant by Double \u201cD\u201d when it was discovered that Mrs. Robbie Jones was married. At that time, Mr. Jones was represented by Mrs. Jones\u2019s attorney, James Filyaw. After the November 2001 trial, however, Buck Jones had a new attorney appear on his behalf. On January 16, 2002, Buck Jones filed a pleading captioned \u201cCross Claim Complaint,\u201d (hereafter termed the \u201ccounterclaim\u201d) wherein he alleged for the first time that the taxes, claimed by the State to be delinquent, were assessed as the result of an illegal reappraisal, and as such, the taxes constituted an illegal exaction.\nOn January 24, 2002, Double \u201cD\u201d filed a motion to dismiss the \u201ccounterclaim,\u201d arguing that the pleading filed by Mr. Jones should be considered a compulsory counterclaim that should have been filed before the trial on the merits of the case. The Commissioner also filed a motion to dismiss, asserting that the issues raised in the \u201ccounterclaim\u201d were not presented to the trial court during the November 2, 2001, hearing and pointing out that the court had not given leave to \u201ccross claimant\u201d to raise the issues now.\nThe trial court dismissed Mr. Jones\u2019s \u201ccounterclaim\u201d on the basis of Ark. R. Civ. P. 13(a), which provides as follows with respect to compulsory counterclaims:\nA pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party\u2019s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.\nThe trial court found that Mr. Jones\u2019s claims arose out of the same transaction or occurrence that was the subject matter of Double \u201cD\u2019\u201ds claim and Robbie Jones\u2019s claim, and that Mr. Jones\u2019s claim was a compulsory counterclaim. The court continued by noting that, under cases such as Foundation Telecommunications, Inc. v. Moe Studios, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000), an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, and a party may not wait until the outcome of a case to bring an error to the trial court\u2019s attention. Because Mr. Jones\u2019s earliest opportunity to present his claim occurred when, on August 10, 2001, an answer was filed on behalf of Mr. Jones by his first attorney, and because Mr. Jones never presented his claim prior to or at the trial on November 2, 2001, the court concluded that this pleading failed to comply with Rule 13(a), and dismissed the \u201ccounterclaim.\u201d\nOn appeal, Buck Jones argues that the trial court erred in its conclusion. In support of his argument, he cites Allison v. Long, 336 Ark. 432, 985 S.W.2d 314 (1999), and in particular, he notes that case\u2019s statement that, under Rule 13(e), a pleader may assert his counterclaim by amended or supplemental pleading subject to the requirements of Rule 15. Rule 15, in turn, provides as follows:\nWith the exception of pleading the defense mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.\nArk. R. Civ. P. 15(a). Thus, Mr. Jones argues, to strike a counterclaim without a finding of prejudice or delay amounts to reversible error.\nFirst, Mr. Jones ignores the fact that the trial court did find prejudice. In its findings, the court expressly found the following:\nMr. Jones\u2019s earliest opportunity to present his claim occurred when, on August 10, 2001, an answer was filed on behalf of Mr. Jones by Mr. Filyaw. Mr. Jones never presented his claim prior to or at the trial on November 2, 2001. However, Mr. Jones waited until after he had notice of the outcome of the case, the court\u2019s letter opinion of December 27, 2001, before he raised his claim on January 16, 2002.\nWe further point out that the \u201ccounterclaim\u201d to which Jones refers was not an \u201camended\u201d pleading; rather, it amounts to a counterclaim that raises a bevy of new issues. The court in Allison stated that the purpose of the compulsory counterclaim rule is the \u201cavoidance of multiple lawsuits on the same facts with the same parties.\u201d Allison, 336 Ark. at 434. This is exactly what the trial court was accomplishing by dismissing Mr. Jones\u2019s \u201ccounterclaim,\u201d .which, under a plain reading of Rule 13(a), was truly a compulsory counterclaim and should have been brought before or during the trial of this matter.\nEven assuming that Rule 15(b) is applicable, and that Jones\u2019s \u201ccounterclaim\u201d should be considered an amended pleading under Rule 15(b), that rule still only permits amendments to conform to the pleadings \u201cwhen issues not raised by the pleadings are tried by express or implied consent of the parties.\u201d In such a situation, those issues \u201cshall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment[.]\u201d However, this Rule presupposes that these issues were \u201ctried by express or implied consent of the parties.\u201d See, e.g., Shinn v. First Nat\u2019l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App. 1980) (noting that the rule has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, so long as it was clear that all the relevant evidence was in the record or the issue was clearly one the parties contemplated as being before the court).\nHere, the issues raised by Mr. Jones\u2019s \u201ccounterclaim\u201d were never tried, whether by express or implied consent of the parties, and there was no evidence whatsoever on these issues in the record. The trial court was correct to conclude that these issues raised by Mr. Jones were not timely presented to the court, and the dismissal of his \u201ccounterclaim\u201d is affirmed.\nBrown and Imber, JJ., concur.\nAccording to her testimony, when the Fort Smith property was purchased in 1963, Mr. Jones was unavailable, and Mrs. Jones signed the papers on the house herself; the deed was only issued in her name.\nSuch a creature does not exist in the Rules of Civil Procedure, which provide that \u201c[t]here shall be a complaint and an answer; a counterclaim; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third party answer, if a third party complaint is served. No other pleadings shall be allowed.\u201d Ark. R. Civ. P. 7(a).\nThe Commissioner also argued that the issues raised in the \u201ccounterclaim\u201d related to the actions of the Sebastian County Assessor, who, although necessary, had not been named as a party.\nThe so-called \u201ccross claim complaint\u201d is certainly not a \u201csupplemental pleading,\u201d in the sense of Rule 15(d), which permits a party \u201cat any time without leave of court [to] file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.\u201d", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I concur with stice, by one aspect of the majority\u2019s reasoning. The issue raised by Buck Jones is whether he could file a compulsory counterclaim raising new issues after the circuit court had issued his letter opinion resolving the case. Clearly, he could not, because he was simply too late.\nThe majority\u2019s analysis, in part, deals with whether Buck Jones could amend his answer to include a counterclaim, using as a vehicle Arkansas Rule of Civil Procedure 15(a). Rule 15(a) permits amendments to pleadings \u201cat any time without leave of the court.\u201d Rule 15(a) further states that if the circuit court determines prejudice would result to the opposing party by the amendment and the case would be unduly delayed, it may strike the amended pleading. Despite Rule 15(a), Arkansas Rule of Civil Procedure 13(a) mandates that compulsory counterclaims be filed at the time of a responsive pleading, and this is the rule that the circuit court relied on in dismissing the counterclaim. The circuit court did not even address or rule on Jones\u2019s Rule 15(a) argument. Moreover, a new pleading raising a new claim after the case is decided and a letter opinion issued is simply too late, either under Rule 13(a) regarding compulsory counterclaims or under Rule 15(a) regarding amended pleadings. Accordingly, I would not engage in a Rule 15(a) analysis, because I conclude the rule has no relevance to the facts at hand.\nIn addition, I would hold that amendments to pleadings raising new issues after the judge has made his decision should not occur under any circumstances. Policy considerations do not support any other conclusion. No party should be permitted to wait for a decision and then bring, in effect, a new lawsuit after losing on the merits of his initial claim. This flies in the face of the whole notion of compulsory counterclaims and runs directly counter to an orderly resolution of litigant issues.\nIn short, I would not analyze whether prejudice accrued to Double D Properties under Rule 15(a), because I determine Rule 15(a) is simply inapplicable to the facts of this case. That essentially is what the circuit court decided.\nFor these reasons, I respectfully concur.", "type": "concurrence", "author": "Robert L. Brown, Justice," }, { "text": "Annabelle Clinton Imber, Justice,\nconcurring. I agree stmajority ice, Land Commissioner complied with the notice requirements of Act 626 and that the issues raised in Mrs. Jones\u2019s motion for new trial were not timely raised. The majority also concludes that the trial court\u2019s dismissal of Mr. Jones\u2019s counterclaim should be affirmed. A consistent and harmonious interpretation of our rules of civil procedure governing counterclaims, amended pleadings, and motions for new trial, supports the conclusion reached by the majority. See Ark. R. Civ. P. 13, 15, 59 (2002).\nRule 15(a) requires the trial court to determine \u201cthat prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment . . . .\u201d By requiring a determination of prejudice or undue delay, Rule 15(a) necessarily contemplates the filing of an amendment prior to or at trial. Once the trial is over and the outcome is known, as in the instant case, prejudice is inherent and undue delay is obvious and unavoidable. On the other hand, Rule 15(b) contemplates an amendment asserted even after judgment \u201c[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties . . . .\u201d As such, Rule 15(b) only permits amendments after trial \u201cas may be necessary to cause [the pleadings] to conform to the evidence . . . .\u201d\nTo the extent that the majority opinion might imply that a counterclaim may not be an amended pleading, I would disagree. We have held that a counterclaim, compulsory or otherwise, may be asserted by amended or supplemental pleading subject to the requirements of Rule 15. Allison v. Long, 336 Ark. 432, 985 S.W.2d 314 (1999). A counterclaim asserted in the form of an amended pleading pursuant to Rule 15(a) must be filed prior to or at the trial and before the outcome is known. To hold otherwise would allow a party to file, by way of a counterclaim, what in essence is a motion for new trial and, thereby, circumvent the requirements of our rule governing the granting of new trials \u2014 Ark. R. Civ. P. 59. Likewise, Rule 15(b), which sets forth the limited circumstances under which pleadings may be amended to conform to the evidence, would be unnecessary \u2014 mere surplusage.\nFor the above stated reasons, I concur with the majority that the trial court\u2019s dismissal of Mr. Jones\u2019s counterclaim should be affirmed.", "type": "concurrence", "author": "Annabelle Clinton Imber, Justice," } ], "attorneys": [ "James R. Filyaw, for appellant Robbie Jones.", "Oscar Stilley, for appellant Buck Jones.", "David Charles Gean, for appellee Double \u201cD\u201d Properties.", "Mark Pryor, Att\u2019y Gen., by: Anthony W. Black and Carol A. Lincoln, Ass\u2019t Att\u2019ys Gen., for appellee Charlie Daniels." ], "corrections": "", "head_matter": "Robbie R. JONES v. DOUBLE \u201cD\u201d PROPERTIES, INC., an Arkansas Corporation and Charlie Daniels, Commissioner of State Lands, State of Arkansas v. Buck D. JONES\n02-717\n98 S.W.3d 405\nSupreme Court of Arkansas\nOpinion delivered February 20, 2003\n[Petition for rehearing denied April 3, 2003.]\nJames R. Filyaw, for appellant Robbie Jones.\nOscar Stilley, for appellant Buck Jones.\nDavid Charles Gean, for appellee Double \u201cD\u201d Properties.\nMark Pryor, Att\u2019y Gen., by: Anthony W. Black and Carol A. Lincoln, Ass\u2019t Att\u2019ys Gen., for appellee Charlie Daniels." }, "file_name": "0039-01", "first_page_order": 61, "last_page_order": 77 }