Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/19

 S.W.3d ___. Where the pleadings show that the action is, in effect, one against the State, the circuit court acquires no jurisdiction. See id. In determining whether the doctrine of sovereign immunity applies, the court must decide if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. See id. If so, the suit is one against the State and is barred by the doctrine of sovereign immunity, unless an exception to sovereign immunity applies. See id. This court has recognized three ways in which a claim of sovereign immunity may be surmounted: (1) where the State is the moving party seeking specific relief, (2) where an act of the legislature has created a specific waiver of sovereign immunity, and (3) where the state agency is acting illegally or if a state-agency officer refuses to do a purely ministerial action required by statute. See id. At issue here is whether the first exception to sovereign immunity applies.

Alpha Marketing claimed, and the circuit court found, that the Commission waived its immunity when it subjected itself to the circuit court's jurisdiction by seeking affirmative relief. The only exception to total and complete sovereign immunity that we have recognized occurs when the State is the moving party seeking specific relief. See LandsnPulaski, LLC v. Arkansas Dep't of Correction, 372 Ark. 40, 269 S.W.3d 793 (2007). In that instance, this court has held that the State is prohibited from raising the defense of sovereign immunity as a defense to a counterclaim or offset. See id.

In LandsnPulaski, the appellant urged that the Arkansas Department of Correction ("ADC") had not merely filed an answer, but had sought affirmative relief from the circuit court when it requested "all other appropriate relief." 372 Ark. at 44, 263 S.W.3d at 796. This