Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/20

 court noted that the ADC had clearly asserted the defense of sovereign immunity in its answer and disagreed that "all other appropriate relief" was specific:

LandsnPulaski argues that the phrase "all other appropriate relief" is a request for affirmative relief that waived the ADC's sovereign immunity. However, in order to waive sovereign immunity, the request for relief must be specific. See Fireman's Ins. [Co. v. Arkansas State Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990)]. Because "all other appropriate relief" is not a request for specific relief, we hold that the ADC did not waive its sovereign immunity and is therefore immune from suit.

Id., 269 S.W.3d at 796–97.

The apposite question, then, appears to be: did the Commission make a request for specific relief? Like the circuit court, I conclude that it did. A review of the Commission's answer reveals that it pled, as an affirmative defense:

Pleading affirmatively, Plaintiff is legally ineligible to use "Arkansas Lottery," "Lottery Arkansas," and "Arkansas Lotto" as trademarks. Plaintiff's registration of these trademarks is contrary to law, and the registrations should be canceled.

WHEREFORE, Defendant Arkansas Lottery Commission requests that this Court deny Plaintiff any relief and enter a declaratory judgment canceling Alpha Marketing's registration of the trademarks "Arkansas Lottery," "Lottery Arkansas," and "Arkansas Lotto" and for all other just and proper relief.

When considering whether the State has sought specific relief, this court has drawn a distinction between the simple filing of an answer, asserting sovereign immunity and praying for "all other appropriate relief," and the filing of an answer, a compulsory counterclaim, and a third-party complaint, concluding that the latter filing operated as a request for affirmative relief. See LandsnPulaski, supra; ''see also Travelers Cas. & Sur. Co. v. Arkansas State Highway Comm'n'', 353 Ark. 721, 120 S.W.3d 50 (2003); Arkansas Game & Fish Comm'n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989); Arkansas Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987).