Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/26

 Ark. R. Civ. P. 58. To suggest, however, that a litigant can overturn a circuit court's ruling on waiver by beating the court in a race to the clerk's office for filing is utterly ridiculous. Moreover, applying this logic would effectively write the law of waiver out of existence if a state agency were allowed to upend a circuit court's ruling and retract a finding of waiver by the simple expediency of filing a pleading withdrawing its waiver before the court enters its order.

The concurring opinion also errs by taking the position that the circuit court must have considered the second amended complaint based on the boilerplate language contained in the order that all pleadings were reviewed. In the first appeal of this very case, our court rejected the argument that such language constitutes a specific ruling on any given issue. ''Ark. Lottery Comm'n v. Alpha Marketing'', 2012 Ark. 23, 386 S.W.3d 400. The fact remains that the Commission did not raise the "unwaiver" issue below, and the circuit court never ruled on this argument.

Finally, the concurring opinion is mistaken that a waiver did not occur. To be sure, the Commission did not file a formal counterclaim or third-party complaint. However, the Commission did seek declaratory relief for the cancellation of the trademarks in its initial answer, and it consistently sought that relief in its subsequent pleadings. Plainly, the Commission moved for specific relief, regardless of the label placed on the pleading. This court