*1 39 error, an We find that such made admittedly defendant, for a criminal cause to attorney good grant Cases, motion. SeeIn Re Belated Criminal Ark. 964 Appeals curiam). (1979) (per is, therefore,
The motion A of this granted. copy will be forwarded the Committee on Professional Conduct. PROPERTIES, INC.,
Robbie R.
v. DOUBLE “D”
JONES
Daniels,
an Arkansas
and Charlie
Corporation
Lands,
Commissioner of State
State of
Arkansas
Buck D. JONES
02-717
Supreme delivered Opinion February denied rehearing April [Petition 2003.] *3 .42 Robbie R. for Filyaw, appellant Jones.
James for Buck Oscar Stilley, appellant Jones. Gean, “D” Double
David Charles appellee Properties. Gen., A. W. Black and Carol Mark Att’y by: Pryor, Anthony Lincoln, *4 Gen., for Daniels. Ass’t Charlie Att’ys appellee This involves a married Glaze, case Jus who in Ft. tic tic e.e. Buck reside
Tom Jones, couple, the record of their resident Robbie owner prop- Smith. Jones 1963, and, handled the since over the she ensuing pay- erty years, 1996, However, in ment of the taxes and bills. beginning couple’s result, As she her real estate taxes. Mrs. stopped paying Jones taxes, which led to the on her real became property delinquent Inc. After the sale and land to Double “D” sale Properties, of a limited warranty the State Land Commissioner’s issuance “D”, “D” suit Double deed to Double Mrs. against brought Jones had failed the Commissioner and the She alleged Commissioner. 1983, as of Act 626 of with notice comply provisions therefore, amended, and, and the the sale was void Commis- deed “D” sioner’s should be cancelled. Double and the Land answered, and, Commissioner Mrs. in denying allegation, Jones’s addition, counterclaimed, Double “D” an order seeking directing Mrs. to vacate. Double “D” filed a third-party subsequently Buck the same relief as complaint against Jones, seeking previously Robbie. Robbie’s answer on requested against attorney behalf, Mr. claims that the sale of reasserting Joneses’ their residence was with Act 626. compliance . 2, This was tried on November 2001. The trial dispute letter judge, entered on held that the January sale of Commissioner’s delinquent property complied Joneses’ 626, with Act and the Commissioner’s deed issued to Double “D” was valid. Buck Following new attor- judge’s ruling, counterclaim, filed a that the ney had alleging property Joneses’ assessed, unlawful, been that an illegally unconstitutional amount and, therefore, of taxes had been imposed, Commissioner’s addition, deed should set aside. In Mrs. tried to question Act 626’s notice unconstitutional requirements being of their depriving of due The rights process. Joneses court considered these 1, new aat arguments March hearing 2001, and it entered two orders on April holding again that the Commissioner had with the notice strictly complied of Act provisions further had deciding Joneses failed to raise their constitutional in a arguments manner. timely the trial court’s challenge decisions this appeal. Joneses We first address whether Land State Commissioner with notice complied Act 626. The pertinent is codified at provision Ark. Code Ann. 26-37-301 (Repl. § 1997), which as follows: provides (a)(1) land, Subsequent receiving tax-delinquent owner, Commissioner of State Lands shall at the notify address, mail, owner’s last known by certified of the owner’s right taxes, interest, costs,
to redeem by paying all penalties, including the cost of the notice. All
(2) interested known to the parties Commissioner of *5 State Lands shall receive notice of the sale from the Commis- sioner of State Lands in the same manner.
44 shall also to the owner or interested
(b) The notice if not redeemed land will be sold that the tax-delinquent indicate shall also indicate sale to the date of sale. notice prior date, (2) after the years be no earlier than two and that date shall of State Lands. is certified to the Commissioner land lands, this court of tax-delinquent In cases redemption involving notice of with the strict has stated that compliance requirement can an owner before the tax sales themselves required Robertson, 692, Ark. v. 313 of his or her Pyle property. deprived Ward, 286 First Church Trustees (1993); Baptist 858 S.W.2d 238, 151 (1985). 691 S.W.2d 181, Daniels, S.W.2d Wilson v. App. us, court of like the one before our appeals a case much (1998), Hills, There, El lived in Dorado appellant construed 26-37-301. § California, Taxes the Pine in Pine Bluff. on but owned property 1990, was had not been since property Bluff paid property 1994, of 1994. On September certified delinquent July last mailed a certified letter Wilson’s Land Commissioner taxes tax her on address in the records notifying known redeem were that she could the Pine Bluff property delinquent, offered for sale on and that the would be property property, in Fol- The letter was addressed Wilson 1996. September som, California; not known.” it was returned marked “attempted address, a letter second certified of Wilson’s correct learning Upon Hills, 25, 1996, in El Dorado Califor- mailed to her on was June nia, that she could her delinquent, notifying property and that the would be offered for redeem the property, property This letter was returned “unclaimed 1996. sale September or refused.” of the letters mailed
Wilson denied ever either receiving Commissioner, she had called the Land and she testified that she had not received her and state offices to why county inquire statements; address. The also that office her correct tax she gave with the address and tax court found that there was problem however, office; concluded that the the court from the tax billings address was cured notice that was mailed to wrong first The court mailed to the correct address. second letter that was *6 ruled that the Commissioner had with the fully complied applica- ble statutes. affirmed, that
On Wilsoncourt appeal, stating tax-delin Code Ann. 26-37-301 that after receiving “provides § land, the Commissioner of Lands shall quent notify State redeem, sold, owner of his/her the land that will notify right Wilson, owner the sale date.” at notify App. 184. The court continued as follows: section,
Under this the Commissioner is required notify owner, at the owner’s last known certified mail. After address evidence, Commissioner, it is clear that the reviewing subse- land, quent receiving the sent notice tax-delinquent certified last known address. first Even notice though [Wilson’s] address, mailed the Commissioner to the was mailed wrong the Commissioner sent a second notice to the correct address of where she had resided since 1980. We cannot say [Wilson] the chancellor’s decision that second notice satisfied statu- was tory requirement erroneous. clearly Id.
The Wilson case is to the factually analogous present instances, case. In both the certified letter was returned marked Nevertheless, Wilson, “unclaimed.” the court of held appeals that the Commissioner had with the of the complied case, statute. In the instant testimony that the undisputed letter, Commissioner mailed certified and that the required, office made the post to deliver it. The appropriate statute attempts does not the Land require Commissioner to take every step possi ble to see that hand; the letter arrives in the owner’s it property owner, only Commissioner requires “shall at notify address, mail, owner’s last known certified of the owner’s to redeem right property.]” [the concedes that this Wilson, case is similar to but factually
asserts that the court nevertheless reserva- appeals “expressed tions about “reservations,” deficiencies in the notice.” The how- ever, consisted of the court’s concern about the of the timing — i.e., notice that it could be sent close in time to the relatively time of the sale. That was never an issue in precise question this two sent full
case, years the notice was as it was undisputed sale date. the scheduled before *7 Further, her brief that strict in compli argues Jones that, and because Legislature the statute is
ance with required, mail, a that was clear be via certified notice to sent required that the given intended taxpayer that the indication legislature However, in con of his property. actual notice jeopardy it statute, it reads. to construe just it is court’s duty a struing 289, Const., Ark. 993 v. 338 Paul & Marine Ins. Fire St. Griffin 485, S.W.2d v. 281 Ark. 665 Heard (1999); Payne, S.W.2d 485 16, 261 North Little Rock (1984); City Montgomery, 865 of statute, a we look we construe 154 When (1977). 546 S.W.2d the words their the statute and at of give first language plain & Sales v. ContractorYard See ERC and meaning. ordinary plain 63, Robertson, If the of 212 (1998). language 977 S.W.2d a clear and defi and conveys a statute is and unambiguous, plain of con no to resort to rules statutory nite there is need meaning, Constr., Here, the statute notice requires struction. supra. Griffin Commissioner sent notice certified mail.” The Land “by Jones Therefore, in court did not err con trial certified mail. with the that the had strictly complied Commissioner cluding statute. Next, in conclud- that the trial court erred argues Joneses were timely. that constitutional not Mrs. arguments ing order, in Mrs. the issues raised with dealing
its April brief,” the matter trial noted first that court “post 2, 2001. After receiving tried to the court on November briefs, entered a letter on January the court post-trial “D” that counsel for Double prece- prepare requested if the other no objections attorneys; dent copies present would be within five signed were received days, precedent “filed then noted that Mrs. The 12 order entered. April [a] Jones the court con- which 2002], brief January post-trial [on trial, the five The days. for new within judg- sider a motion [ed] resolution of the and entered not been ment has signed pending and the motion issues responses presented [Mrs. Jones’s] “D” and the Land Commissioner].” [Double Act motion filed Mrs. that alleged January Jones of 1983 was defective as to its notice constitutionally require- ments with to the and that it was respect right redemption, brief, due therefore her In her right deprivation process. she had that and her husband a vested interest in the argued that entitled them to actual notice of the property question pro- and that mere with the did scheme ceedings, compliance statutory Further, of due asserted satisfy process. no fact that notice whatsoever is second required statute, under the which runs for redemption period period from the time the land tax thirty days commissioner issues the deed; the omission of notice about the second requirement also rendered the statute unconstitutional. redemption period motion, In its order the trial court found denying Jones’s *8 the constitutional were never issues raised at trial Mrs. by Jones, law, and that she had not to the objected error of properly alleged isas Ark. R. P. Civ. The court required by 59(a)(8). submitted for a new only trial was Rule possible ground 59(a)(8), which that a new trial when there has provides may granted been an error of law at the trial and to the occurring objected by Therefore, wrote, the making the court party application. “since the to has failed establish aggrieved to party grounds, pursuant trial, Rule for a 59(a), new the court granting does have the the record to authority amend its of open fact and findings of conclusions law.” On Mrs. asserts that the trial appeal, court erred in that her
concluding constitutional issues were not raised. properly She maintains that Rule was because no inapplicable, judgment motion, and, had been entered as of the yet date she filed her for time, the first she asserts that “it would have been more proper that the motion ... be treated the court as governed being Rule Rule 52 52(b)(1).” for pertains the requests findings by court, trial and a to move the trial court to permits party amend its of fact Here, within ten after findings days of entry judgment. however, never to the trial court suggested that it should consider her motion as a for under Rule 52. request findings event, did not err in concluding the trial court any Ark. untimely. the constitutional issue was of raising trials, and of new P. 59 the provides
R. Civ. governs granting a of materially number grounds a trial be granted new may as noted the of a including, substantial rights affecting party, above, at the trial oflaw occurring objected error P. The Rule 59(a)(8). Ark. R. Civ. making application. that, new in an action motion for a trial states further “[o]n if has one court may judgment tried without jury, open fact entered, amend findings take additional testimony, been conclusions, and or make new conclusions oflaw findings of a new direct entry judgment.” filed, shall be establishes when new motion Rule 59(b) and reads follows: A for a trial shall be filed for Motion. motion new
(b) Time A motionmade judgment. not later than 10 after days entry shall become and be treatedas entry judgment effective filed before is If the court neither nor grants entered. day judgment after which it denies motion within 30 date on is days filed, day. treated as it shall be deemed denied as of 30th or added.) (Emphasis law that a for new trial
Our case
is well-settled
motion
court,
the trial
and the trial
is
the sound discretion of
addressed to
unless an
refusal
it will not be reversed on
court’s
appeal
grant
v. Northeast
abuse of discretion
shown.
Co.
Sharp
Planning
*9
336,
Co.,
An
(1980).
&
269 Ark.
Mrs. Jones’s therefore, This was correct. the court denied her motion. decision in a held an first made court has objection This repeatedly Daniel, 466, is Lee v. 350 Ark. 91 for new trial not timely. motion must be another an issue S. 464 Stated (2002). way, W.3d
49
at
to the trial court
the earliest
in order
opportunity
presented
a
be
it for
and even
constitutional
issue must
preserve
appeal,
it for
raised at
in order
Foundation
preserve
appeal.
Inc.,
231,
Telecom.,
Moe
531
Studio,
Inc. v.
341 Ark.
16 S.W.3d
A
not
until the
of a case to
wait
outcome
(2000).
bring
party may
Lee,
to the trial court’s
The court in
an error
attention.
Id.
supra,
further on
issue
stated
this
as follows:
State,
197,
v.
(1978),
264
court noted that the reason for
an
objection before
requiring
trial court is to
on the
discourage “sandbagging”
lawyers
part
result,
take
might
who
otherwise
a chance on a
favorable
raise a constitutional claim if the
did
subsequently
gamble
not pay
Wilson,
Ark. at
off.
204. Seealso Wilsonv.
Selph,
270 Ark.
State,
S.W.2d
(1980);
Hodges
App.
Lee,
Clearly, party may raise constitutional for the first time in a objection motion for new trial. The prob here, discussed, that, lem as has been at the time Mrs. trial,” her “motion for new the trial court had not entered a final order; instead, it had issued its letter dated only December 27, 2001, how the court was informing parties rule. going However, Rule 59(b) “motion made provides before entry shall become effective and be judgment treated as filed on the Here, after the day is entered.” judgment judgment entered on which would April cause the motion to become effective and be treated as filed on 2002. April Apply — the rules in this ing i.e., manner leads to the same conclusion that the constitutional issues were not raised This result timely. rule, Lee, serves the purpose discussed supra: should to wait until he or permitted she knows how the rule, trial court is and then going raise a consti “subsequently tutional if the Therefore, *10 claim not off.” we gamble pay [does] that did err in finding trial court not
conclude that the Jones’s not timely. were constitutional arguments discussed, into was initially brought Buck As previously Jones it Double “D” when was defendant this case as a third-party time, At that Robbie was married.1 that Mrs. discovered Jones Filyaw. Mrs. attorney, was Mr. represented James Jones however, trial, had a new Buck the November 2001 After Jones On Buck his behalf. January on attorney appear Jones (hereafter a “Cross Claim Complaint,”2 filed pleading captioned he for the first time wherein termed the “counterclaim”) alleged taxes, were assessed the the State to that claimed by delinquent, such, as the consti- taxes the result of an illegal reappraisal, exaction. tuted an illegal 24, 2002, a motion to dismiss Double “D” filed
On January “counterclaim,” Mr. that the arguing pleading Jones a counterclaim that should have be considered should compulsory case. the merits of the The Com- filed before the trial on been dismiss, to that issues missioner also filed a motion asserting trial court were not raised in the “counterclaim” presented that out the November hearing during pointing the issues leave to “cross claimant” raise court had given now.3 Mr. “counterclaim” The trial court dismissed P. which as follows of Ark. R. Civ. 13(a), basis provides counterclaims:
with compulsory respect 1 According was to her when the Fort Smith testimony, property purchased signed herself; on the house unavailable, Mr. and Mrs. papers name. deed was issued in her only Procedure, Civil which a creature does not exist in Rules of Such provide a counterclaim answer; counterclaim; be a and an shall reply “[t]here complaint cross-claim; to a if the answer contains a such; cross-claim, denominated as an answer original under the was not an is summoned third if a who party party complaint, person third served. No 14; a third if a answer, of Rule party complaint provisions 7(a). pleadings R. P. shall be allowed.” Ark. Civ. other raised related argued also issues “counterclaim” The Commissioner although had not been who, Assessor, to the actions of Sebastian necessary, County as a named party. *11 which,
A shall state as a claim at counterclaim pleading the time of pleading, againstany has filing pleader oppos- if it arises out of the transaction occurrence that is ing or party, matter of the claim subject and does not opposing party’s adjudication its of third of whom require presence parties the court cannot acquire jurisdiction. court found that Mr. claims arose out of same Jones’s transaction or occurrence that was the of matter Double subject claim, “D’”s claim and Robbie Mr. claim Jones’s Jones’s
was a
counterclaim. The court continued
compulsory
by noting
that, under cases
as
Telecommunications,
such
Foundation
Inc. Moe
Inc.,
Studios,
341 Ark.
behalf of
Jones
Jones
However,
2, 2001.
on November
to or at the trial
prior
claim
of
outcome of the
after he had notice
the
Mr.
waited until
Jones
case,
he
of December
before
the court’s
letter
16, 2002.
his claim on January
raised
that the “counterclaim” to
We further
out
point
rather, it
not an “amended” pleading;
which
refers was
Jones
a
of new issues.4 The
a
that raises bevy
amounts to counterclaim
coun
the
the
stated that
of
compulsory
court in Allison
purpose
same
lawsuits
terclaim rule
the “avoidance of
is
multiple
Allison,
Ark. at 434. This is
facts
the same
with
parties.”
Mr.
dismissing
what the trial court was
by
accomplishing
exactly
“counterclaim,” .which,
Rule
under a
of
reading
plain
Jones’s
and should have been
a
counterclaim
was
13(a),
truly compulsory
of
matter.
before or
trial
this
brought
during
is
and that
15(b)
Even
that Rule
assuming
applicable,
under
considered an amended
should be
pleading
“counterclaim”
to conform to
that rule still
amendments
only
Rule 15(b),
permits
are
tried by
“when issues
raised by
pleadings
pleadings
situation,
of the
such
or
consent
parties.”
express
implied
as
had been
be
in all
if they
those issues “shall
treated
respects
as
may
in the
Such amendment
raised
pleadings.
pleadings
evidence
to cause them conform
necessary
at any
made
motion of any party
raise these issues
bemay
upon
time,
However, this Rule
even after judgment[.]”
presupposes
were “tried
or
consent
that these issues
by express
implied
See,
First
Bank
Shinn v.
Nat’l
e.g.,
Hope,
parties.”
rule has been
(Ark.
1980)
were never whether or of the consent by express implied and there no evidence whatsoever on issues in these parties, court record. was correct to conclude that these court, issues raised Mr. were not to the timely presented dismissal of his “counterclaim” is affirmed. Imber, concur. Brown JJ., Brown, L. I concur with concurring. Ju e,e, i i c c one of the Robert major- aspect st st The issue raised Buck is whether ity’s reasoning. he file a could counterclaim new after the compulsory issues raising circuit court had issued letter his the case. opinion resolving *13 not, he could he Clearly, because was too late. simply in deals with majority’s analysis, whether Buck part, counterclaim, could amend his answer to include a as a using vehicle Arkansas of Rule Civil Procedure Rule 15(a). 15(a) per- mits amendments to “at time without of leave pleadings any court.” Rule further 15(a) states that if the circuit court deter- mines would result prejudice the amend- opposing party by ment and the case would be it unduly delayed, strike the may amended Rule of pleading. Despite 15(a), Arkansas Rule Civil Procedure mandates 13(a) be compulsory counterclaims at the time of this is rule that responsive pleading, circuit court relied inon the counterclaim. The dismissing circuit court did not even address or rule on Rule 15(a) argument. Jones’s Moreover, newa a new claim after the case pleading raising is late, decided and a letter issued is too either under simply Rule 13(a) counterclaims or under regarding compulsory Rule 15(a) amended regarding I pleadings. would not Accordingly, in a Rule I engage 15(a) because analysis, conclude the rule has no relevance to the facts at hand. addition,
In I would hold amendments rais- pleadings new issues after the has made his ing decision should not judge do not considerations sup- under circumstances. Policy
occur be wait No should conclusion. permitted other port any effect, new after lawsuit losing then a decision and bring, flies the face of the claim. This of his initial on the merits runs counterclaims and directly whole notion compulsory issues. to an resolution orderly litigant counter accrued to short, whether I would not analyze prejudice because I determine Rule D under Rule 15(a), Double Properties this That essen- to the facts of case. is 15(a) simply inapplicable decided. what the circuit court tially reasons, I concur. For these respectfully I Imber, concurring. Clinton Ju e,e, c c Land Commis- s s t t i i agree majority Annabelle of Act 626 and that the notice with sioner complied for new trial were not in Mrs. motion the issues raised the trial also concludes that court’s raised. The majority timely A be con- should affirmed. of Mr. counterclaim dismissal civil our rules of proce- sistent harmonious interpretation counterclaims, amended motions dure pleadings, governing trial, reached the majority. the conclusion for new supports R. P. 59 (2002). Civ. See to determine “that the trial court Rule 15(a) requires of the cause would result or disposition would prejudice . . . .” of an amendment By because of filing unduly delayed undue Rule 15(a) or delay, determination of prejudice requiring at an amendment or filing prior necessarily contemplates *14 known, as in the trial is and the outcome trial. Once the over case, is obvious and is inherent and undue delay instant prejudice hand, 15(b) the other Rule contemplates unavoidable. On after issues amendment asserted even judgment “[w]hen tried or consent are implied raised by express pleadings such, amendments . . .” As Rule 15(b) only permits . parties to cause con- trial be necessary pleadings] after “as may [the . . .” to the evidence . form that a imply
To extent majority opinion might I would not be an amended disagree. counterclaim may pleading, counterclaim, otherwise, that a We have held or compulsory may be or asserted amended to the supplemental pleading subject Rule 15. Allison requirements Long, S.W.2d 314 A counterclaim asserted in the form of an (1999). amended be Rule must to or 15(a) pleading pursuant prior at the trial and before the outcome is known. To hold otherwise file, counterclaim, would allow a of a what in way and, essence is a motion new circumvent the thereby, — our rule of new trials governing granting Likewise, Ark. R. Civ. P. 59. Rule which forth 15(b), sets limited circumstances under which be amended to pleadings may — evidence, conform to the would mere unnecessary surplusage. reasons,
For the above stated I concur with the majority the trial court’s dismissal Mr. counterclaim should be affirmed. WILLIS, KING,
Arnell
et al. v. Barbara
et al.
02-988
Supreme delivered Opinion February notes particular, that, that case’s statement under Rule 13(e), assert pleader may his counterclaim amended or supplemental pleading subject turn, of Rule 15. Rule provides follows: With the exception pleading defense mentioned Rule 12(h)(1), a amend party may his at pleadings any time without Where, however, leave of the court. motion upon oppos- ing court determines party, would result or prejudice of the cause disposition would be unduly delayed because of the amendment, of an filing court strike such may amended or pleading grant continuance of the proceeding. Thus, Ark. R. P. Civ. Mr. 15(a). strike coun- argues, terclaim without a or finding amounts revers- prejudice delay ible error. court did find First, that the trial Mr. the fact ignores found following: the court expressly its findings, prejudice. claim his earliest opportunity present Mr. when, an answer filed on August occurred