Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/24

 its specific request for relief from its later pleadings is simply irrelevant. It is because the Commission sought specific relief from the circuit court that the waiver occurred and it was prohibited from employing the defense of sovereign immunity. For that reason, the circuit court did not abuse its discretion in denying the Commission's motion to dismiss on the basis of waiver, and I would affirm the circuit court's orders.

C and G, JJ., join.

C H G, Justice, dissenting. I dissent because the circuit court did not err in ruling that the Commission waived the defense of sovereign immunity. In reaching a contrary conclusion, the majority rests its decision on a glaring factual error. Worse, it reverses based on an argument that was neither raised nor ruled upon below. Although I fully join the dissenting opinion authored by Justice Danielson, I write separately to underscore the fallacy of the majority's decision.

Sovereign immunity can be surmounted where the state is the moving party seeking specific relief. See Weiss v. McLemore, 371 Ark. 538, 268 S.W.3e 897 (2007). In its answers to the original and first amended complaints, as well as in both motions to dismiss, the Commission consistently maintained that Alpha Marketing's trademarks were invalid, and it persistently sought specific relief for the trademarks to be cancelled. By taking this position, the Commission manifestly indicated that it was ready, willing, and eager to litigate the validity of Alpha Marketing's trademarks with the goal of cancelling their registrations. This much is clear. Yet, the majority holds that the Commission's waiver evaporated, as if by magic, because the Commission dropped the request for specific relief in its answer to the second amended