Cite as 2013 Ark. 232
answer to the second amended complaint was filed prior to the entry of the circuit court's order denying the motion to dismiss. The written order from the circuit court, rather than the hearing, is the operative procedural fact pertinent to the resolution of this issue. Furthermore, the court prefaced its findings by stating that it had reviewed "the pleadings, responses, replies, supporting briefs, and arguments of counsel." This language necessarily leads to the conclusion that the circuit court considered the Commission's answer to the second amended complaint and that it considered and ruled on the issue of waiver, which both parties argued at the hearing and which Alpha Marketing asserted in its amended response to the Commission's motion to dismiss the second amended complaint.
Finally, sovereign immunity is jurisdictional immunity from suit, see Arkansas Dep't of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 32, 285 S.W.3d 654, 658 (2008), and it can be pleaded at any time.[1] See Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 291 S.W.3d 179 (2009) (noting that the doctrine of charitable immunity provides charitable organizations with immunity both from liability and from suit and that the defense of charitable immunity was not waived by failure to plead it in the original answer).
PAUL E. DANIELSON, Justice, dissenting. I respectfully, but most vigorously, dissent. To simply say that the majority has erred in its reversal on the issue of the Commission's waiver of sovereign immunity is but an understatement, as the record and this court's case law make
- ↑ Pursuant to Arkansas Rule of Civil Procedure 12(h), certain defenses must be raised in the original responsive pleading or by motion. Because sovereign immunity, like charitable immunity, is not listed among the defenses in Arkansas Rule of Civil Procedure 12(h), it is not waived if not asserted in the original answer.
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