Cite as 2013 Ark. 232
Alpha asserts that the Commission waived the defense of sovereign immunity. Alpha’s waiver argument is predicated on the proposition that the Commission waived sovereign immunity by seeking affirmative relief. The Commission could not raise the defense of sovereign immunity if it has been a moving party seeking specific relief. See LandsnPulaski, LLC v. Ark. Dep't of Corr., 372 Ark. 40, 43, 269 S.W.3d 793, 796 (2007). Alpha primarily focuses on the paragraph in the Commission’s answer to the original complaint in which, under the heading, "Affirmative Defenses," it stated as follows:
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 registrations of the trademarks "Arkansas Lottery," "Lottery Arkansas," and "Arkansas Lotto" and for all other just and proper relief.
The Commission argues that there was no waiver because it dropped the request for declaratory judgment in its answer to the amended complaint, and, similarly, its answer to the second amended complaint did not contain a request for affirmative relief. It posits that these subsequent pleadings supersede and replace its original answer. By analogy, it cites to Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 577, 916 S.W.2d 114, 116–17 (1996), in which the court observed that "an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint."
In response, Alpha contends that the Commission's subsequent amended answer incorporated by reference a request for affirmative relief. Alpha points to paragraph 34 of the Commission's amended answer, where it stated that Alpha was legally ineligible to use the
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