Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/25

 complaint. This position is factually untenable because the Commission filed its answer to the second-amended complaint two weeks after the circuit court ruled that the Commission had waived sovereign immunity. Thus, this single pleading cannot and did not work to dissolve the waiver that had already occurred. The majority should explain how the belated filing of this answer could effectively overrule the circuit court's previous decision that the Commission had waived immunity. Indeed, the majority opinion hatches a curious, new legal concept of an "after-the-fact unwaiver."

In addition, the Commission did not argue to the circuit court that its answer to the second amended complaint superceded its previous answers and operated as a retraction of its waiver. How could it have made this argument? The answer to the second amended complaint was not even filed at the time the circuit court issued its ruling that a waiver had occurred. The majority thus departs from the settled rule that this court will not reverse a circuit court's decision on the basis of an argument not raised or ruled upon below. See LaFont v. Mooney Mixon, 2010 Ark. 450, 374 S.W.3d 668; Beverly Enters.-Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445 (2007).

The majority's decision is either based on faulty logic, or the majority is not in full command of the facts and procedural history of this case. Either way, its decision is wrong.

The concurring opinion stands on no firmer ground in its reliance on the fact that the circuit court first issued an oral ruling denying the motion to dismiss and the fact that the answer to the second amended complaint preceded the entry of the circuit court's order memorializing its decision. Of course, an order is not effective until it is entered of record.