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.