author: Tom Glaze, Justice.

text:
    ARKANSAS PHARMACIST’S ASSOCIATION, INC., Sunnymede Pharmacy, Inc., Bryant’s Investments and Holding, Inc., Sims Drug, Inc., Gary Fancher, P.D., d/b/a Flippin Pharmacy v. ARKANSAS STATE and PUBLIC SCHOOL LIFE and HEALTH INSURANCE BOARD, Arkansas Department of Finance and Administration-Employee Benefits Division, and Advance PCS, Inc.
    02-929
    98 S.W.3d 27
    Supreme Court of Arkansas
    Opinion delivered February 13, 2003

      The Health Law Firm, by: Harold H. Simpson and Seth Ward III, for appellants.

      Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry III, Michael Emerson, and D. Keith Fortner, and Steptoe & Johnson, LLP, by: Martin Schneiderman; and Mark Pryor, Att’y Gen., by: Patricia Van Ausdall Bell, Ass’t Att’y Gen., for appellees.
   Tom Glaze, Justice.

This case requires us to determine stice. actions of the Arkansas State and Public School Life and Health Insurance Board constituted rule-making and whether those actions had to be taken in accordance with the Arkansas Administrative Procedures Act, Ark. Code Ann. § 25-15-201 et seq. (Repl. 2002).

Appellee State and Public School Life and Health Insurance Board (Board) is a statutorily created board that sets policy and selects plans and coverages for the state employee and public school personnel health and life insurance and self-funded medical programs. Ark. Code Ann. § 21-5-401 (Supp. 2001). Appellee AdvancePCS Health, L.P. (APCS) provides pharmacy benefits management services for health-benefit plans. The Employee Benefits Division of the Arkansas Department of Finance & Administration (the Division) contracts for health and life insurance coverage on behalf of state and public school employees; the Division also provides state and public school employees with prescription benefits through APCS.

On March 1, 2001, APCS’s predecessor, Advance Paradigm, entered into a contract with the Division to provide pharmacy benefits management services for State and public school employees. Under this benefit services contract, prescription drug purchases by state and public school employees are covered under the plan if the purchases are made at APCS network pharmacies. The network is a group of pharmacies that have contracted with APCS to provide pharmacy services to state and public school employees covered by the plans and to receive reimbursements according to a specific formula. The appellants in this case — the Arkansas Pharmacist’s Association, Sunnymede Pharmacy, Bryant’s Investments and Holding, Sims Drug, Inc., and Gary Fancher, P.D., d/b/a Flippin Pharmacy — alleged they were participating pharmacies in the APCS pharmacy network.

After reviewing various proposals regarding changes to the pharmacy benefit services agreement, the Board recommended two changes to the Division’s and APCS’s agreement at an October 17, 2001, board meeting. First, the Board passed a motion to recommend the implementation of an optional mail service to state and public school employees, whereby certain prescriptions could be filled through the mail. Second, the Board moved to recommend a change in the rate at which pharmacists were reimbursed. Discussions at the board meeting indicated that changing the reimbursement rate could save the State about $5 million annually. On January 17, 2002, the Division and APCS executed an amended agreement incorporating the Board’s recommended changes to the reimbursement rates and the mail-order service; the amended agreement also extended the term of the agreement until December 31, 2002.

The Arkansas Pharmacist’s Association, Inc., and the pharmacies named above (collectively referred to as the Association) filed a declaratory judgment action against the Board and, by way of an amended complaint, included the Division and APCS as defendants. The complaint alleged that, in making the recommendations at the October 17 meeting, the Board engaged in rule-making within the meaning of the Arkansas Administrative Procedures Act, Ark. Code Ann. § 25-15-201 (Repl. 2002) (APA). Further, the complaint alleged that the Board failed to comply with the notice and hearing provisions of the APA, and as a result, the “rules” should be declared invalid.

The opposing parties filed cross-motions for summary judgment. After a hearing on May 16, 2002, the trial court granted the summary-judgment motion filed by the Board, the Division, and APCS, and denied the Association’s motion. The trial court held that the Board’s actions at its October 17 meeting, recommending the mail order provision and lower reimbursement rates, were not “rules” or “rule making” under the APA; it also determined the Division’s and APCS’s conduct in adopting these two recommendations by amending their contract did not constitute “rules” or “rule making.” From the trial court’s order granting summary judgment in favor of the Board, the Division, and APCS, the Association brings this appeal.

For its first point on appeal, the Association argues that the trial court erred in finding that the Board’s action did not constitute rule-making. Under the Administrative Procedures Act, a “rule” is defined as “any agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of any agency and includes, but is not limited to, the amendment or repeal of a prior rule.” Ark. Code Ann. § 25-15-202(8)(A) (Repl. 2002). Moreover, the APA defines “rule making” as meaning an “agency process for the formulation, amendment, or repeal of a rule.” § 25-15-202(9). The Association asserts that the Board’s decision to amend the pharmacy benefit services agreement between the Division and APCS amounted to “rule making.”

In support of its argument, the Association asserts that the Board’s actions were indisputably of “future effect” and amounted to a prescribing of policy; the “only dispute,” according to the Association, is whether the Board’s actions were “of general applicability.” The Association insists that the Board’s decision was of general applicability, because the amendment 1) changed the reimbursement formula for all current and future pharmacies that provide services to plan members, and 2) offered the mail order benefit to all current and future members.

The Association is in error on this point. The only Arkansas case that discusses the meaning and import of “general applicability” within the framework of the APA is Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989). In that case, Steve Eldridge brought suit for declaratory and injunctive relief challenging the site selection for an adult detention facility by the Department of Correction; Eldridge claimed that the Department failed to comply with the notice and hearing provisions of the APA. The trial court granted summary judgment in favor of the Department, finding that the site-selection decision did not constitute the adoption of a rule. In affirming the trial court, this court held as follows:

Eldridge strongly argues that the decision by the Department of Correction to establish an adult detention facility is a statement of general applicability that implements the law authorizing the Department to establish such facilities. While this construction perhaps involves an interesting argument in semantics, the action of the Department was no more than the carrying out of legislatively mandated administrative duties under section 12-27-103 and not the adoption of a rule within the meaning of section 25-15-202(4) and (5).
Here, the term “rule” has been defined for us, and subsections (4) and (5) of section 25-15-202 were obviously drafted to address those instances in which an agency subject to the Act either formulates, amends, or repeals statements of general applicability and future effect which implement, interpret, or set out provisions having legal consequences, or which describe departmental policies, or explain the organization, procedure, or practice of an agency. Our first rule of construction as to the language of any piece of legislation is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). Site selection for the construction of an adult detention facility does not fall anywhere within the definition of the term “rule” as contained in the Act, if for no other reason than that it does not constitute an agency statement of general applicability.

Eldridge, 298 Ark. at 470-71 (emphasis added).

It is clear from Eldridge that a state agency can carry out its statutorily appointed day-to-day tasks without every action being considered an exercise in “rule making.” In Eldridge, this court noted that the Department of Correction had the “function, power, and duty ... to establish and operate regional adult detention facilities.” Id. at 470. Similarly, in the instant case, the Board is statutorily charged with the following powers, functions, and duties:

(1) To explore various cost containment measures and funding options;
* * * *
(6) To evaluate responses to requests for proposals, select contractors for all services, approve the award of contracts resulting from bids for all health and life insurance offerings for participants of the various plans;
* * * *
(8) To promote increased access to various health plan options and models;
(9) May, at the discretion of the board, direct the Office of State Purchasing to contract with all qualified vendors, as defined by the board, offering the health benefit plans prescribed by the board without regard to § 19-11-228 or other statutes requiring competitive bidding.

§ 21-5-404 (emphasis added).

In making its recommendations, the Board was exploring various cost-containment measures, in that it determined that changing the reimbursement rate would save up to $5 million annually. In addition, it was promoting increased access to various health-plan options and models, by deciding to offer the mail-service option to its members.

As to the question of whether the Board’s actions were of “general applicability,” the Association attempts to distinguish Eldridge on the basis that the issue in that case “only concerned the specific location in which the agency decided to build a single, specific adult detention facility.” Because the decision in Eldridge was of “particular applicability,” to use the Association’s phrase, it did not constitute rule making. Here, however, the Association asserts that the Board’s decisions are of future effect, and act on unnamed and unspecified pharmacies and plan members, and are therefore of “general applicability.”

However, it is difficult to conclude that the Board’s recommendations to the'Division were of “general applicability,” because these recommendations were of no effect until the Division and APCS negotiated and executed the terms of their amended contract. Moreover, the record reveals that the Board’s recommendations impacted only the Division’s contract with APCS for a limited time, ending on December 31, 2002. Obviously, as in Eldridge, the action of the Board was “no more than the carrying out of legislatively mandated administrative duties under section [21-5-404,] and not the adoption of a rule within the meaning of [the APA].” See Eldridge, 298 Ark. at 471.

Bearing on this point, Ark. Code Ann. § 21-5-406 (Supp. 2001) sets out that the Board must choose an executive director with the approval of the executive director of the Department of Finance & Administration (DF&A), and the selected director is located in the Employment Benefits Division of DF&A. The Board’s executive director is charged with the duty to administer the Board’s day-to-day functions, and this includes having the authority to supervise the implementation and day-to-day management of the health insurance programs and other employee benefit programs and plans.

In the present case, due to information provided to the Board, the Board approved motions that led its executive director to renegotiate the Division’s contract with APCS, so state and public school employees had an option for mail-order pharmacy services, in addition to overall plan savings by lowering the rate of reimbursement to network pharmacists. This action falls entirely within the statutorily mandated duties of the Board, and the trial court did not err in concluding that the Board’s conduct did not amount to rule-making within the meaning of the APA. •

We note that the Association refers to four cases from other jurisdictions, but we believe the Eldridge decision and our court’s interpretation of Arkansas’s APA rule and rule-making provisions are sufficient to decide the situation before us. We also conclude those decisions relied on by the Association are inapposite or distinguishable. For instance, the Association cites National Association of Psychiatric Treatment Centers for Children v. Weinberger, 658 F. Supp. 48 (D. Colo. 1987), wherein the federal district court addressed the failure of the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) to provide notice about proposed changes in participation agreements that affected every participating treatment center within the CHAMPUS plan. There, the court noted that the challenge was not to the implementation of a single participation agreement, but instead was directed at CHAMPUS’s creation of a policy applicable to all participation agreements. Weinberger, 658 F. Supp. at 54. Here, on the other hand, there is only one agreement, and the Board’s proposed changes were negotiated and agreed upon by the parties to that contract; there was no unilateral imposition of the changes, as there was in Weinberger.

Next, the Association cites Failor’s Pharmacy v. Department of Social & Health Services, 886 P.2d 147 (Wash. 1994). There, the issue was whether a decision by the Washington State Department of Social and Health Services to unilaterally alter the state’s Medicaid reimbursement payment schedules to prescription drugs constituted rule-making under that State’s APA. The Washington Supreme Court held that it did, because the reimbursement schedules “constituted an order, directive, or regulation of general applicability relating to a benefit conferred by law.” Failor’s Pharmacy, 886 P.2d at 494. Because the reimbursement schedules were uniformly applied to all members of the class of Medicaid prescription providers, it was generally applicable. Unlike the Failor’s Pharmacy decision, the case before us involved the Board’s recommendations to amend a single pharmacy benefit services contract.

The Association also cites Senn Park Nursing Center v. Miller, 470 N.E.2d 1029 (Ill. 1984), for its statement that an amended “inflation-update procedure” was an agency statement of general applicability because it “does implement a policy of the agency and is not a statement dealing only with the internal management of the agency. The rifle does affect the rights and procedures available to people outside the agency.” Senn Park, 470 N.E.2d at 178. But again, as in Failor’s Pharmacy, the amended procedure was a unilateral alteration to a state Medicaid plan that affected every nursing home facility that participated in the Medicaid program. See also, NME Hospitals, Inc. v. Department of Social Services, 850 S.W.2d 71 (Mo. 1993) (wherein the Missouri Supreme Court held that a change to the formula used to reimburse Medicaid mental health provides was of “general applicability,” and that court held that the amended formula was a rule of general applicability because the Medicaid reimbursement policy applied generally to all participants in the Medicaid program, and because “[definition of the reasonable costs, manner, extent, quantity, quality, charges, and fees of medical assistance under the program must be made by rule and regulation” under Rev. Stat. Mo. § 208.153.1). NME Hospitals, 850 S.W.2d at 74.

Before leaving this point, we would be remiss to fail to mention APCS’s out-of-state cases that can be said to support its position that the amended agreement APCS entered into with the Division did not constitute a rule. For example, in Alabama Department of Transp. v. Blue Ridge Sand & Gravel, Inc., 718 So.2d 27 (Ala. 1998), the court held that certain amended standard specifications were not “rules” within the context of Alabama’s APA, but were rather only specifications for engineering details and materials that may be incorporated by reference into a request for bids for highway construction contracts. The Blue Ridge court further stated that the specifications did not describe the organization, procedure, or practice requirements of the Department of Transportation or constitute a regulation of general applicability, but were simply terms that could be incorporated into a contract between the Department and some other party. APCS also referred to Alca Industries, Inc. v. Delaney, 686 N.Y.S.2d 356 (1999), where that court declined to hold that bid-withdrawal procedures were rules, because “[c]hoosing to take an action or write a contract based on individual circumstances is significantly different from implementing a standard or procedure that directs what action should be taken regardless of individual circumstances; rule making, in other words, sets standards that substantially alter or, in fact, can determine the result of future agency adjudications”; see also Dep’t of Health & Mental Hygiene v. Chimes, Inc., 681 A.2d 484 (Md. Ct. App. 1996) (institution of cost containment measures did not constitute a rule because it did not change existing law, formulate new rules of widespread application, or apply new standards retroactively to the detriment of an entity that had relied upon the agency’s past pronouncements; rather, the “growth cap” applied only to a limited number of providers in their capacity as contractors with a state agency pursuant to contracts between the parties subject to termination by either side, and applied only in a particular program), and Dep’t of Transp. v. Blackhawk Quarry Co. of Florida, Inc., 528 So.2d447 (Fla. Dist. Ct. App. 1988) (standard contract specifications for building materials did not qualify as rules because they were “more in the nature of a contract term between the contractor and the [Department of Transportation] as opposed to a rule”). In sum, we hold that the trial court was correct in ruling that the Board’s actions in this matter did not constitute rule making.

For its second point on appeal, the Association contends that Paragraph 4 of the trial court’s order is erroneous “in that the amendment of the contract between the Division and APCS does not establish the terms and conditions of the plan.” That paragraph reads as follows:

The conduct of defendants in establishing the mail order provisions and lower reimbursement rates by amending the [pharmacy benefit management] contract between the Division and APCS do not constitute “rules” or “rule making” under the [APA].

Although the court’s order does not mention the word “plan,” the Association argues in its brief that this statement is in error because it “assumes that the terms and conditions of the Plan are governed by the contract between the Division and APCS.” The Association asserts that the Board, as a policy-making body, modified the “Plan” when it made its recommendations on October 17, 2001, and this action constituted the adoption of a new policy to amend the health benefits plan offered to employees. The Association further contends that, since the APA rule-making procedures were not followed, the amendment to the “Plan” was invalid. In support of its argument, the Association cites § 21-5-401, which provides for the Board’s creation and states that the Board is to “set policy and select plans and coverages for the state employee and public school personnel health and life insurance and self-funded medical programs.”

The Board responds that it did not adopt a new policy, or amend any “Plan” because there was no “Plan” to amend. Instead, as previously discussed, the Board merely recommended an amendment to an existing contract between the Division and APCS, and there was no independent or separate “Plan,” as now alleged by the Association. The evidence clearly supports the Board’s position.

It should be noted that the Association does not refer to any document it claims to be a “Plan,” and, while the Association refers to certain testimony in support of its suggestion that such a “Plan” exists, the Association never makes clear exactly what the “Plan” contains, where it is located, or what it sets out. Further, although the Association points to snippets of testimony from the current and imm ediate past executive directors of the Division and from the chairman of the Board, this testimony, taken as a whole, does not support the Association’s conclusions.

For example, John Greer, the former executive director of the Division, was asked whether there is “a written plan providing for prescription drug benefits for state employees and public school teachers”; he responded, “I would answer no, and I don’t know of any plan existing anywhere that has a written plan for pharmacy and health or life benefits.” Similarly, Sharon Dickerson, the current executive director of the Division, testified that “[t]here is not a document, per se, not one document.” Rather, she stated, “[t]he plan consists of the drugs that are on the formulary. . . . The plan consists of the relationship between the — APCS and [the Division] as related to the performance guarantees. The plan is the pre-op, the quality versus time, the step therapy, you know, the reimbursement, the claims payment. You know, it’s — the whole thing is the plan.”

The Association also refers to the testimony of John Hartnedy, the chairman of the Board, who said that it was Board policy to determine the benefits of the plan. Hartnedy also averred that DF&A required action by the Board before the reductions in pharmacy reimbursement rates could take place and before the mail-order program could be implemented. However, Hartley’s testimony never revealed what the plan was or where it was set out.

In sum, no independent, overarching “Plan” was developed by Hartnedy’s, Greer’s, or Dickerson’s testimony. Instead, the testimony and evidence clearly supports a conclusion that the prescription drug benefits plan offered to Arkansas state and public school employees consists of the terms and conditions of the pharmacy benefits management contract, not some independent “Plan” developed and ordered by the Board. The trial court did not err in granting summary judgment in favor of the Board, the Division, and APCS. Therefore, we affirm.

       The Arkansas Pharmacist’s Association is a non-profit corporation that represents pharmacists throughout the State. Initially, a fifth pharmacy, Yellville Drug Store, Inc. d/ b/a Clinic Pharmacy, had joined in this litigation.

       Because the changes were required to be made by rule, the concerns presented in the Missouri case are different from the instant situation.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Raymond C. SANDERS Jr. v. STATE of Arkansas
    CR 01-95
    98 S.W.3d 35
    Supreme Court of Arkansas
    Opinion delivered February 13, 2003

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Raymond C. stJr. ice. two counts of capital murder in the Grant County Circuit Court and was sentenced to death. On appeal, this court affirmed his conviction, but reversed his death sentence and remanded the case for resentencing. See Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992) (“Sanders I”). Upon remand, Appellant was again sentenced to death, and this court affirmed. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, 513 U.S. 1162 (1995) (“Sanders II”). Subsequent to this court’s decision, Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition without holding a hearing. We now reverse and remand for an evidentiary hearing pursuant to Rule 37.

In light of the fact that there have been two previous direct appeals in this matter, it is not necessary to go into a lengthy recitation of the underlying facts. See Sanders I and Sanders II. Suffice it to say, Appellant was convicted of the murders of Nancy and Charles Brannon on February 28, 1991. Following his conviction, Appellant filed two petitions under Rule 37. The first petition was eleven pages long, with the eleventh page containing only the certificate of service. The second petition was a sixteen page “enlarged” version of the first petition. In support of his petition, Appellant alleged that: (1) venue was changed without Appellant’s consent and out of his presence; (2) several conflicts of interests precluded Appellant from receiving a fair trial; (3) Appellant’s counsel was ineffective in both the guilt and penalty phases of his trial; and (4) the State improperly admitted a subsequent homicide as an aggravator during sentencing. Along with these petitions, Appellant also filed a motion seeking the court’s permission to file the enlarged Rule 37 petition. He also filed a motion to supplement his petition on the basis that he had obtained newly discovered evidence regarding a criminal association between Dan Harmon, the prosecutor in his case, and William Murphy, one of his attorneys in this case.

The trial court concluded that both motions exceeded the ten-page limit set forth in Rule 37.1(e) and summarily dismissed both petitions. The trial court then denied Appellant’s motion to file the enlarged petition. The court also denied Appellant’s motion requesting permission to supplement his original Rule 37 petition. The trial court then went on to state, however, that even if he were to consider Appellant’s substantive arguments, he still would not prevail under Rule 37. According to the trial court, there was no genuine issue as to any material fact in Appellant’s petition; thus, the State’s motion for summary judgment under Ark. R. Civ. P. 56 was proper. The trial court based this finding on his conclusion that the Arkansas Rules of Civil Procedure are applicable to Rule 37 proceedings.

The trial court also determined that Appellant’s petition failed under Rule 37.3(a), because it contained only conclusory allegations that lacked any factual support and did not warrant an evidentiary hearing. The trial court acknowledged that Appellant attempted to set forth additional facts in support of his petition regarding the criminal association between Harmon and Murphy that led to their indictments and ultimate convictions in federal court. The trial court concluded, however, that these facts were irrelevant to Appellant’s petition, because Appellant failed to tie the crimes of Murphy and Harmon to his prosecution for the Brannon murders. This appeal followed.

Appellant raises several arguments on appeal. First, Appellant contends that it was error for the trial court to dismiss his original Rule 37 petition on the basis that it exceeded the page limits of Rule 37.1(e). Next, Appellant argues that the trial court erred in denying his motion to file an enlarged Rule 37 petition and his motion to supplement the petition. Appellant also contends that the trial court erred in applying the principles of Rule 56 to a Rule 37 proceeding. Finally, Appellant contends that his Rule 37 petition demonstrates that he is entitled to a hearing. We agree that Appellant has set forth sufficient facts in support of his petition for postconviction relief to warrant an evidentiary hearing. Having so concluded, it is unnecessary for us to consider the merits of Appellant’s remaining arguments on appeal. For purposes of clarity, however, we will address each of the points raised by Appellant.

For his first point on appeal, Appellant argues that the trial court erred in denying his Rule 37 motion on the basis that the motion was eleven pages long. According to Appellant, the petition’s eleventh page contained nothing but the certificate of service, which is not even required under any provision of Rule 37. Thus, Appellant argues the trial court erred in dismissing his petition on this procedural basis.

Under Ark. R. Crim. P. 37.1(e), petitions for postconviction relief shall not exceed ten pages in length. This court has held that the rule limiting petitions to ten pages is an entirely reasonable restriction on petitioners seeking postconviction relief. See Washington v. State, 308 Ark. 322, 823 S.W.2d 900 (1992); Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989). In fact, this court has stated that due process does not require courts to provide an unlimited opportunity to present postconviction claims or prevent a court from establishing limits on the number of pages in a petition. Id. Moreover, this court has held that any exhibits attached to a petition filed under Rule 37 are counted for purposes of determining whether the petition conforms to the ten-page limitation. Washington, 308 Ark. 322, 823 S.W.2d 900. This court has not, however, considered the issue of whether a page containing only a certificate of service should count towards that page limitation. We think that it should not.

This court has repeatedly stated that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure the denial rests on solid footing. Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001); Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). In this case, the substance of Appellant’s petition was concluded half-way through the tenth page. Appellant’s counsel’s signature followed on the remainder of the tenth page, with the certificate of service carried over to the next page. It is, therefore, unreasonable to dismiss a petition as too long under these circumstances. Accordingly, the trial court abused its discretion in summarily dismissing Appellant’s original Rule 37 petition because it exceeded ten pages.

With regard to Appellant’s contention that the trial court erred in denying his motion to file an enlarged petition, we disagree. This court’s Rules of Criminal Procedure do allow for the amendment of Rule 37 petitions, but only with leave of the court. Ark. R. Crim. P. 37.2(e). In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), the trial court found that the appellant failed to set forth any legitimate ground or justification for fifing the enlarged petition. This court affirmed on appeal. Likewise, in the present matter, Appellant fails to establish that the trial court abused its discretion in denying the motion to file an enlarged petition. As the trial court pointed out, Appellant spent the majority of his motion attacking the page restrictions of Rule 37.1(e), rather than estabhshing a need to exceed that limitation. Accordingly, the trial court did not err on this point.

Appellant also argues that the trial court erred in denying his motion to supplement his Rule 37 petition so that he could raise the allegations regarding the criminal relationship between the prosecutor, Harmon, and his own defense counsel, Murphy. The trial court denied this motion on the ground that it was facially meritless. Specifically, the trial court stated that the motion failed to demonstrate any nexus between the criminal activities of Murphy and Harmon with the prosecution of Appellant for the Bran-non murders. While we agree that there is a lack of proof of any such nexus, we think the trial court abused its discretion in denying the motion to supplement on this basis.

The motion at issue here set forth in detail the offenses that Harmon and Murphy were accused of, as well as the time periods in which these offenses allegedly occurred. The offenses included attempts to extort money from criminal defendants that occurred around the time that Appellant was represented by Murphy and prosecuted by Harmon. While it is not clear whether there is any nexus between the two, the facts alleged by Appellant in his petition raise more than the mere specter of an improper relationship between the prosecutor and defense counsel that may have prejudiced Appellant in his trial. Accordingly, the trial court abused its discretion in refusing to allow Appellant to supplement his petition with this newly obtained information.

Appellant’s next argument is that the trial court erred in granting the State’s motion for summary judgment under Ark. R. Civ. P. 56, as that rule is not applicable in Rule 37 proceedings. The State counters that even if Rule 56 is not applicable, the trial court still based his denial of Appellant’s claims under both Rule 56 and Rule 37.3; thus, Appellant’s argument on this point is without merit. We agree with the State that the trial court’s application of Rule 56 did not prejudice Appellant, because the trial court alternatively relied on Rule 37.3. Again, though, we address this issue in order to prevent any future confusion.

This court has long recognized that Rule 37 proceedings are civil in nature. See State v. Hardin, 347 Ark. 62, 60 S. W.3d 397 (2001); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Arkansas Pub. Defender Comm’n v. Greene County Cir. Court, 343 Ark. 49, 32 S.W.3d 470 (2000). Moreover, this court has referred to and applied the Rules of Appellate Procedure— Civil when necessary in criminal appeals. Id; Byndom v. State, 344 Ark. 391, 39 S.W.3d 781 (2001). Usually, this court’s discussion of the civil nature of Rule 37 proceedings is in the context of a petitioner seeking the appointment of counsel for the pursuit of his Rule 37 petition. See, e.g., Greene County, 343 Ark. 49, 32 S.W.3d 470. This court has also applied a civil appellate rule in a Rule 37 proceeding where the State seeks to appeal from the grant of postconviction relief. See, e.g., State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). We have not, however, applied the Rules of Civil Procedure to a Rule 37 action.

Here, the State attempts to rely on this court’s decision in Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999), in support of its argument that Rule 56 is applicable. Nance is of no help to the State. That case involved an appeal from the denial of a Rule 37 petition, following a motion by the State for summary judgment on the pleadings. The trial court determined that the pleadings were conclusory and insufficient to warrant postconviction relief. This court affirmed the trial court’s denial of the petition, but analyzed the denial of the claim under Rule 37.3(a). Nothing in the opinion indicates that Rule 56 is applicable to Rule 37 proceedings.

The very provisions of Rule 56 demonstrate its inapplicability to the present matter. Rule 56(c)(2) states in pertinent part:

The judgment sought shall be. rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion.

There are no depositions, interrogatories, or other pleadings at issue in Rule 37 proceedings. In determining whether a petitioner has established grounds entitling him to Rule 37 relief, the trial court relies on the Rule 37 petition itself. Rule 37.3(a) provides its own mechanism for dealing with conclusory petitions. It states in relevant part:

If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.

Accordingly, it was error for the trial court to apply the summary-judgment principles of Rule 56 to this case.

For his final point on appeal, Appellant argues that he was entitled to a hearing on his Rule 37 petition, as he set forth numerous grounds entitling him to relief. The State counters that Appellant’s allegations are either procedurally barred or amount to nothing more than mere conclusory allegations. The trial court agreed with the State that Appellant’s petition contained only conclusory allegations and adopted the assertions set forth by the State in its Rule 56 motion as its findings of fact. This was error.

It is undisputed that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. See Bilyeu v. State, 337 Ark. 304, 987 S.W.2d 277 (1999); Luna-Holbird v. State, 315 Ark. 735, 871 S.W.2d 328 (1994). This court has previously interpreted Rule 37.3 to “provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief.” Wooten, 338 Ark. 691, 694, 1 S.W.3d 8, 10 (emphasis added) (quoting Bohanan v. State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997) (per curiam)). Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court’s decision. Id.; Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Bohanan, 327 Ark. 507, 939 S.W.2d 832.

In the present case, we are confronted with two problems. First, even if we were to accept the trial court’s adoption of the State’s assertions as sufficient findings of fact, the trial court’s order still fails to comply with the requirements of Rule 37.3(a), because the order does not specify those parts of the record relied on to form the basis of the order. As we stated in Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988), such a failure constitutes reversible error, unless this court can determine from the record as a whole that the petition has no merit. Upon reviewing this record, we cannot say that it conclusively shows that Appellant’s petition is without merit.

Appellant has submitted a petition that states facts sufficient to render his allegations more than conclusory. In addition, he attempted to supplement his petition with facts regarding the relationship between Harmon and Murphy that call into question the fairness of his capital-murder trial. We believe the instant case is analogous to the United States Supreme Court’s decision in Bracy v. Gramley, 520 U.S. 899 (1997). There, the defendant was convicted of armed robbery, aggravated kidnapping, and murder and was sentenced to death. Following a denial of his request for postconviction relief, the defendant sought federal habeas corpus relief. The federal district court denied his petition, and he appealed to the United States Supreme Court. At issue was whether the defendant had shown good cause to prove his claim that he was denied a fair trial, because the judge who presided at his trial was later convicted of taking bribes from criminal defendants.

On appeal, the Supreme Court reversed and remanded the matter to the federal district court with instructions that the defendant be allowed to conduct discovery into his allegation. The Court recognized that there was no allegation that the trial judge tried to obtain a bribe from this particular defendant, but expressed concern over evidence that the trial judge “fixed” other murder cases around the same time as this defendant’s case was pending. The Court determined that the defendant had shown good cause for conducting discovery into his allegation that the trial judge was biased in favor of the prosecution in order to cover up the fact that the judge accepted bribes from other defendants.

We find Bracy to be more persuasive than Lovell v. State, 984 P.2d 382 (Utah 1999), a case relied on by the State in support of its contention that Appellant is not entided to an evidentiary hearing. That case involved an attorney who had an extensive, but legal, relationship with the prosecutor. The Utah Supreme Court determined that there was no conflict of interest, because the defendant failed to demonstrate that other counsel would have approached the case differendy. The State ignores, however, the fact that the defendant had previously been granted an evidentiary hearing into his allegation that he was prejudiced by the conflict of interest between his counsel and the prosecutor.

Finally, we note that in Sanchez v. State, 290 Ark. 39, 716 S.W.2d 747 (1986), this court allowed the appellant to proceed with an evidentiary hearing pursuant to Rule 37, despite the conclusion that the majority of the appellant’s claims were not cognizable under Rule 37 or failed to demonstrate that he was entided to relief under the rule. Nonetheless, this court determined that a hearing was warranted on the allegation of ineffective assistance of counsel, because the appellant discovered after his trial that his attorney was under indictment at the time of this trial in the same court as the appellant was being tried. Recognizing that this may have created a conflict of interest, this court granted the appellant a hearing on this issue.

. In summary, this court cannot ignore the fact that Appellant was represented in a capital-murder case by someone who was later indicted on charges of racketeering and conspiracy along with the man who prosecuted Appellant. Appellant has set forth sufficient facts in his petition demonstrating that he is entitled to pursue these claims in the course of an evidentiary hearing. We are mindful of our previous acknowledgment that death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Echols, 344 Ark. 513, 42 S.W.3d 467; ACLU, Inc. v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). With that said, we remind Appellant that this evidentiary hearing is strictly limited to those issues already raised by Appellant in his petition. This is not an opportunity to raise new issues.

Appellant also urges this court to remand this matter for a hearing before a different judge. He contends that the trial judge in this case has already expressed his opinion regarding the merits of his petition and, thus, is biased against Appellant. We disagree. It is well settled that there is a presumption of impartiality on the part of judges. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001); Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). The question of bias is usually confined to the conscience of the judge. Id.; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). Appellant has failed to overcome the presumption of impartiality. Accordingly, we decline to remand this case to a different trial judge.

As a final note, Appellant asks this court to make a determination of whether the protections of Rule 37.5 should be applied to him in this case. Rule 37.5, which became effective on August 1, 1997, provides the method for pursuing postconviction relief in death-penalty cases. The rule evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16 — 91— 201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Appellant recognizes that the rule is inapplicable to his case, because he became eligible to file his Rule 37 petition prior to the effective date of Rule 37.5. See Rule 37.5(k). He argues, though, remanding his case without providing him counsel under Rule 37.5 amounts to a denial of equal protection in violation of the Fourteenth Amendment and Article 2, § 18, of the Arkansas Constitution. Although this court in Wooten, 338 Ark. 691, 1 S.W.3d 8, addressed the application of the principles of Rule 37.5 to a petition filed before the rule’s effective date, we are unaware of such a need in the instant case. It is apparent from the record before us that Appellant is already represented by qualified counsel; thus, any discussion of appointing counsel pursuant to Rule 37.5 is moot.

Reversed and remanded.

       The “enlarged” petition did not raise any additional claims supporting Appellant’s entitlement to Rule 37 relief; rather, the longer petition simply expands on those claims raised by Appellant in the first petition.


author: Ray Thornton, Justice.

text:
    Donna SUMMERS v. Richard David GARLAND
    02-462
    98 S.W.3d 23
    Supreme Court of Arkansas
    Opinion delivered February 13, 2003
    [Petition for rehearing denied March 13, 2003.]

      Kennard K. Helton, for appellant.

      Richard David Garland, for appellee.
   Ray Thornton, Justice.

On October 1, 1992, the stice. Trust was established. The trust was created pursuant to the terms of William Otis Garland, Jr.’s will. Appellant, Donna Summers, was the executrix of Mr. Garland’s estate. First Commercial Bank was appointed the trustee of the Richard David Garland Trust. The trust consisted of a certificate of deposit worth $100,000.

The terms of the trust provided that appellee, Richard Garland, could use the interest generated by the trust property until he was thirty years old. The trust agreement further provided that if appellee died or was convicted of a felony prior to becoming thirty years old, the corpus of the trust would be divided equally between appellant and Ruby Jo Garland Warren.

On December 3, 1993, prior to appellee turning thirty, he pleaded guilty to a class C felony in Johnson County Circuit Court. Appellee was placed on probation for five years, ordered to pay a fine of $1,000, and ordered to pay court costs in the amount of $397.25. Appellee turned thirty on August 9, 2000.

On August 16, 2000, appellee filed a petition in the Johnson County Circuit Court requesting that the previous charges filed against him be dismissed and that the records involved in his case be sealed. On August 23, 2000, the Johnson County Circuit Judge entered an order finding that appellee had satisfactorily complied with the terms of his probation. The circuit judge also dismissed appellee’s class C felony offense, and sealed all records involved in appellee’s case.

Appellant and appellee each made demands upon the trustee for the trust property. On October 3, 2000, the trustee filed an interpleader complaint in the Pope County Chancery Court. On October 19, 2000, appellant filed a cross-claim stating that appellee had been convicted of a felony, and requesting that the court award her one-half of the trust property pursuant to the trust agreement. On January 10, 2001, an order was entered authorizing the trustee to retain possession of the trust property until the trial court determined the rightful owner of the property.

On February 13, 2001, appellee filed a motion for summary judgment. In his motion, appellee argued that he was entitled to the trust property. Specifically, he argued that because he was placed on probation, had his charges dismissed, and had his record expunged, he was not “convicted” of a felony. He further argued that the sealed documents were privileged from introduction into evidence. Finally, he argued that because “by law” he was not convicted of a felony prior to his thirtieth birthday, he was entitled to the trust property.

On March 26, 2001, appellant responded to appellee’s motion for summary judgment. She argued that it was William Garland’s intent that appellee not receive the trust property if he was convicted of a felony. She argued that the term “convicted” in Mr. Garland’s will and the trust agreement was to have a layman’s definition. Appellant further explained that Mr. Garland requested that this provision be included in the trust agreement as an incentive to his son, who had previously demonstrated irresponsible behavior.

On October 2, 2001, a hearing was held on appellee’s motion for summary judgment. At the hearing, the trial court found that appellee was convicted of a felony prior to his thirtieth birthday. However, the trial court also found that because the charges against appellee had been dismissed and the records sealed, the conduct was deemed not to have occurred. The trial court further concluded that because the records were sealed, appellant would not be able to prove that appellee was convicted of a felony.

On November 9, 2001, an order granting appellee’s request for summary judgment was entered. It is from this order that appellant appeals. We reverse the trial court, and remand this matter for distribution of the trust funds in accordance with this opinion.

On appeal, appellant argues that the trial court erred when it granted appellee’s motion for summary judgment. In Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999), we summarized our standard of review of a summary-judgment order. We explained:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Id. (citing Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999)).

Appellant argues that summary judgment was not proper because there was an unresolved fact question. Specifically, she argues that whether William Garland intended the word “convicted,” as used in his will and the trust agreement, to be given a layman’s definition or whether he intended the word to be given a legal definition is unresolved. The language to which appellant refers appears in paragraph five of the trust agreement. It states:

Principal and income of this trust shall be administered according to the terms of the last will and testament of William Otis Garland, Jr., which was probated in Johnson County, Arkansas, in Johnson County Probate Court case number 91-13. Specifically, the trust property shall be held for the benefit of and ultimately distributed unto Richard David Garland upon his attaining 30 years of age; provided,
(a) that until Richard David Garland attains thirty (30) years of age, he shall be entitled to the use of the interest only generated by the trust property;
(b) that should Richard David Garland die before obtaining thirty (30) years of age or should he be convicted of a felony prior to attaining thirty (30) years of age, then upon the happening of either of these events, then the trust property shall be divided equally between Ruby Jo Garland Warren and Donna Garland Summers.

At the hearing on the motion for summary judgment, the trial court found:

Mr. Garland did plead guilty to a felony and an order of probation was entered finding him guilty of that. In my opinion, therefore, he was convicted of a felony prior to the time he was thirty years old.

The trial court’s determination that appellee was convicted of a felony is correct. We have explained that a plea of guilty, coupled with a fine and probation, constitutes a conviction. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). Appellee pleaded guilty to manufacturing a controlled substance in violation of Ark. Code Ann. § 5-64-401. This offense is a class C felony. After pleading guilty, appellee was ordered to pay a $1,000 fine and placed on probation for five years. Based on our holding in Carter, supra, we conclude that the trial court correctly determined that appellee was convicted of a felony.

Having made this determination, we must now consider whether the trial court erred when it found that appellant was prohibited by an order entered after appellee attained thirty years of age from introducing evidence of appellee’s conviction for the purpose of establishing that appellee was not entitled to collect the trust property. The trial court found that because the charges against appellee had been dismissed and the record of appellee’s criminal case was sealed, appellant was prohibited from introducing evidence concerning appellee’s conviction to establish that appellee had violated the terms of the trust. We conclude that the trial court erred.

The facts presented in this case require consideration of a future interest problem. To determine what, if any, effect appellee’s expungement may have on the rights of the parties to collect the trust property, we must first determine what interest each person may have had. Looking to the language of the trust, we conclude that Mr. Garland gave appellee and appellant alternative contingent remainder interests in the trust property. “Alternative contingent remainders occur when two contingent remainders follow an estate and the condition precedent for one is the opposite of the condition precedent for the other.” John Makdisi, Estates in Land and Future Interest, 2d ed. (1995). “A contingent remainder is a remainder that is subject to a condition precedent.” Id. A “condition precedent is a condition that must occur before the remainder will be allowed to take following the termination of the preceding life estate(s) and/or fee tail(s).” Id.

In the case now on review, the conditions precedent to appellee’s possession vesting in the trust property were: (1) attainment of age thirty, and (2) not being convicted of a felony prior to turning thirty. The conditions precedent to appellant’s remainder interest were: (1) appellee’s death before attainment of age thirty, or (2) appellee being convicted of a felony prior to turning thirty.

Appellee failed to meet one of the conditions precedent. Specifically, appellee was convicted of a felony prior to turning thirty. When appellee’s conviction occurred, appellant’s remainder interest immediately vested and appellee’s remainder interest was simultaneously destroyed. The law desires property to vest as soon as possible. Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994). See also Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 2d ed. (1984) (writing that a contingent remainder becomes a present estate immediately upon the expiration of the prior estate). Because appellant’s interest in the trust property vested in 1993, when appellee was convicted of a felony, the dismissal of the charges and the sealing of the record that occurred in 2000 were of no consequence. Accordingly, we conclude that one-half of the trust property vested in appellant on December 3, 1993.

Appellant raises one additional point in which she contends that the Johnson County Circuit Court was without jurisdiction to dismiss appellee’s conviction and seal the records from his criminal case. Because we have determined that the dismissal of appellee’s conviction, and the sealing of his criminal records did not interfere with appellant’s right to the trust property, we decline to consider this point on appeal.

Reversed and remanded.

       First Commercial Bank is now Regions Bank.


author: Per Curiam.

text:
    James Ken ANDERSON v. STATE of Arkansas
    CR 02-1175
    98 S.W.3d 403
    Supreme Court of Arkansas
    Opinion delivered February 13, 2003

      Appellant, pro se.
    No response.
   Per Curiam.

In 1992, James Ken Anderson entered a plea m. guilty to murder in the second degree and was sentenced to eleven years’ imprisonment. On July 23, 2001, Anderson filed a pro se petition for writ of error coram nobis in the trial court. He later amended the petition to allege that he was entitled to a writ of habeas corpus on the ground that he was actually innocent of the offense. The petition was denied after a hearing, and petitioner Anderson has appealed to this court. Now before us are a series of motions filed by appellant.

The appeal is dismissed as it is clear that the appellant could not prevail on appeal. The motions are moot. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

It was adduced at the hearing on appellant’s petition that he was released from custody in 1997, having completed his sentence. (He was subsequently convicted in Miller County of second-degree murder and sentenced to a term of forty years’ imprisonment.) Thus, when appellant filed his petition in 2001 challenging the 1992 conviction, he was not in custody as a result of that judgment of conviction even though that judgment was used to enhance the later sentence. When a court finds cause to grant a writ of error coram nobis, the remedy is a new trial. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Inasmuch as appellant had already served the sentence imposed, his petition is moot and a new trial would not have been an appropriate remedy even if there were cause to grant the writ with respect to his 1992 conviction.

Likewise, appellant’s request that a writ of habeas corpus be issued on the basis that he was actually innocent of the offense of which he was convicted in 1992 was also moot. As stated, appellant was not incarcerated as a result of the 1992 judgment; therefore, a writ of habeas corpus could not be issued to obtain his release from custody arising from that judgment. An issue is moot when any judgment rendered would have no practical legal effect upon an existing legal controversy. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999).

Appeal dismissed; motions moot.

Imbbr, J., not participating.

       The eleven-year sentence was considered completed in 1997 as a result of the accumulation by appellant of credits against the sentence such as “good time.”


text:
    Jason J. GULLEY v. STATE of Arkansas
    CR 03-83
    98 S.W.3d 403
    Supreme Court of Arkansas
    Opinion delivered February 13, 2003

      Don Gillespie, for appellant.
    No response.
   Per Curiam.

Appellant Jason J. Gulley, by and through am. attorney, has filed a motion for belated appeal. Attorney, Ron Gillespie, states in the motion that the notice of appeal was filed late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice. Robert L. Brown, Justice, Annabelle Clinton Imber, Justice,

text:
    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
    02-717
    98 S.W.3d 405
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003
    [Petition for rehearing denied April 3, 2003.]

      James R. Filyaw, for appellant Robbie Jones.

      Oscar Stilley, for appellant Buck Jones.

      David Charles Gean, for appellee Double “D” Properties.

      Mark Pryor, Att’y Gen., by: Anthony W. Black and Carol A. Lincoln, Ass’t Att’ys Gen., for appellee Charlie Daniels.
   Tom Glaze, Justice.

This 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’s 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 “D” Properties, Inc. After the sale and the State Land Commissioner’s issuance of a limited warranty deed to Double “D”, Mrs. Jones brought suit against Double “D” 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’s deed should be cancelled. Double “D” and the Land Commissioner answered, denying Mrs. Jones’s allegation, and, in addition, Double “D” counterclaimed, seeking an order directing Mrs. Jones to vacate. Double “D” subsequently filed a third-party complaint against Buck Jones, seeking the same relief as previously requested against Robbie. Robbie’s attorney filed an answer on Mr. Jones’s behalf, reasserting the Joneses’ claims that the sale of their residence was not in compliance with Act 626.

. This dispute was tried on November 2, 2001. The trial judge, by letter opinion entered on January 2, 2002, held that the Commissioner’s sale of the Joneses’ delinquent property complied with Act 626, and the Commissioner’s deed issued to Double “D” was valid. Following the judge’s ruling, Buck Jones’s new attorney filed a counterclaim, alleging that the Joneses’ property had been illegally assessed, that an unlawful, unconstitutional amount of taxes had been imposed, and, therefore, the Commissioner’s deed should be set aside. In addition, Mrs. Jones tried to question Act 626’s 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’s decisions in this appeal.

We first address whether the State Land Commissioner complied with the notice requirements of Act 626. The pertinent provision is codified at Ark. Code Ann. § 26-37-301 (Repl. 1997), which provides as follows:

(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(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.
(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.

In 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).

In 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 § 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’s 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 “attempted not known.” Upon learning of Wilson’s 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 “unclaimed or refused.”

Wilson 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.

On appeal, the Wilson court affirmed, stating that Ark. Code Ann. § 26-37-301 “provides 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.” Wilson, 64 Ark. App. at 184. The court continued as follows:

Under this section, the Commissioner is required to notify the owner, at the owner’s 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’s] 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’s decision that the second notice satisfied the statutory requirement was clearly erroneous.

Id.

The Wilson case is factually analogous to the present case. In both instances, the certified letter was returned marked “unclaimed.” 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’s hand; it only requires that the Commissioner “shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem [the property.]”

Jones concedes that this case is factually similar to Wilson, but asserts that the court of appeals nevertheless “expressed reservations about deficiencies in the notice.” The “reservations,” however, consisted of the court’s concern about the timing of the notice — 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.

Further, 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’s 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 “by certified mail.” 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.

Next, the Joneses argues that the trial court erred in concluding that Mrs. Jones’s constitutional arguments were not timely. In its April 12, 2002, order, dealing with the issues raised in Mrs. Jones’s “post trial brief,” 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 “D” 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 “filed [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’s] motion and the responses filed by [Double “D” and the Land Commissioner].”

The 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.

In its order denying Jones’s 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, “since 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.”

On 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 “it would have been more proper that the motion ... be treated by the court as being governed by Rule 52(b)(1).” 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.

In any event, the trial court did not err in concluding that Jones’s 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, “[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.”

Rule 59(b) establishes when a new trial motion shall be filed, and reads as follows:

(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.

(Emphasis added.)

Our 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’s 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).

The trial court here found that the issues raised in Mrs. Jones’s 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’s attention. Id. The court in Lee, supra, stated further on this issue as follows:

In 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 “sandbagging” 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 “license to lie behind the log,” 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.

Lee, 350 Ark. at 476-77.

Clearly, 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 “motion for new trial,” 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 “motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered.” 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 — 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 “subsequently raise a constitutional claim if the gamble [does] not pay off.” Therefore, we conclude that the trial court did not err in finding that Jones’s constitutional arguments were not timely.

As previously discussed, Buck Jones was initially brought into this case as a third-party defendant by Double “D” when it was discovered that Mrs. Robbie Jones was married. At that time, Mr. Jones was represented by Mrs. Jones’s 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 “Cross Claim Complaint,” (hereafter termed the “counterclaim”) 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.

On January 24, 2002, Double “D” filed a motion to dismiss the “counterclaim,” 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 “counterclaim” were not presented to the trial court during the November 2, 2001, hearing and pointing out that the court had not given leave to “cross claimant” to raise the issues now.

The trial court dismissed Mr. Jones’s “counterclaim” on the basis of Ark. R. Civ. P. 13(a), which provides as follows with respect to compulsory counterclaims:

A 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’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

The trial court found that Mr. Jones’s claims arose out of the same transaction or occurrence that was the subject matter of Double “D’”s claim and Robbie Jones’s claim, and that Mr. Jones’s 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’s attention. Because Mr. Jones’s 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 “counterclaim.”

On 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’s 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:

With 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.

Ark. R. Civ. P. 15(a). Thus, Mr. Jones argues, to strike a counterclaim without a finding of prejudice or delay amounts to reversible error.

First, Mr. Jones ignores the fact that the trial court did find prejudice. In its findings, the court expressly found the following:

Mr. Jones’s 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’s letter opinion of December 27, 2001, before he raised his claim on January 16, 2002.

We further point out that the “counterclaim” to which Jones refers was not an “amended” 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 “avoidance of multiple lawsuits on the same facts with the same parties.” Allison, 336 Ark. at 434. This is exactly what the trial court was accomplishing by dismissing Mr. Jones’s “counterclaim,” .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.

Even assuming that Rule 15(b) is applicable, and that Jones’s “counterclaim” should be considered an amended pleading under Rule 15(b), that rule still only permits amendments to conform to the pleadings “when issues not raised by the pleadings are tried by express or implied consent of the parties.” In such a situation, those issues “shall 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[.]” However, this Rule presupposes that these issues were “tried by express or implied consent of the parties.” See, e.g., Shinn v. First Nat’l 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).

Here, the issues raised by Mr. Jones’s “counterclaim” 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 “counterclaim” is affirmed.

Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. I concur with stice, by one aspect of the majority’s 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.

The majority’s 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 “at any time without leave of the court.” 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’s 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.

In 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.

In 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.

For these reasons, I respectfully concur.

Annabelle Clinton Imber, Justice,

concurring. I agree stmajority ice, Land Commissioner complied with the notice requirements of Act 626 and that the issues raised in Mrs. Jones’s motion for new trial were not timely raised. The majority also concludes that the trial court’s dismissal of Mr. Jones’s 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).

Rule 15(a) requires the trial court to determine “that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment . . . .” 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 “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties . . . .” As such, Rule 15(b) only permits amendments after trial “as may be necessary to cause [the pleadings] to conform to the evidence . . . .”

To 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 — 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 — mere surplusage.

For the above stated reasons, I concur with the majority that the trial court’s dismissal of Mr. Jones’s counterclaim should be affirmed.

       According 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.

       Such a creature does not exist in the Rules of Civil Procedure, which provide that “[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.” Ark. R. Civ. P. 7(a).

       The Commissioner also argued that the issues raised in the “counterclaim” related to the actions of the Sebastian County Assessor, who, although necessary, had not been named as a party.

       The so-called “cross claim complaint” is certainly not a “supplemental pleading,” in the sense of Rule 15(d), which permits a party “at 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.”