dissenting.
|,,Because I believe the majority wrongly concludes that the issue of sovereign immunity is not preserved for appellate review, I dissent.
There is no dispute that this court will not consider arguments that are not preserved for appellate review. Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008). This requires litigants to present arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Appellate review is available when the trial court “rules on the issue” presented. Doe v. Baum, 348 Ark. 259, 277, 72 S.W.3d 476, 486 (2002).
Here, the circuit court’s order states that “[ajfter reviewing the motion, response, reply, supporting briefs, and after considering the arguments made by counsel during a February 24, 2011 hearing on the motion to dismiss, the court denies the motion.” The issue of sovereign immunity was raised in the motion, response, reply, supporting briefs, and during the hearing on the motion. The order explicitly states that the filings had been reviewed and the arguments considered in denying the motion to dismiss. Therefore, the issue of sovereign immunity is preserved for appellate review. This is especially true where, as here, our review is pursuant to Arkansas Rule of Appellate Procedure — Civil 2(a)(10). An “interlocutory appeal is allowed by Arkansas Rule of Appellate Procedure — Civil 2(a)(10) solely because [a] motion to dismiss was based on the defense of sovereign immunity.” Univ. of Ark. for Med. Seis. v. Adams, 354 Ark. 21, 24, 117 S.W.3d 588, 590 (2003). An order denying without explanation a motion to dismiss preserves the issue of sovereign immunity for appellate review because it was raised as a ground for dismissal. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007).
112The majority asserts that “logic dictates” the issue of sovereign immunity is not preserved for appellate review and relies upon cases that are easily distinguished. Carquest of Hot Springs held that “where the underlying claims in a potential class action are dismissed, and those claims are fewer than all of the claims in the lawsuit, the dismissal of such claims without resolution of the remaining claims does not constitute a ‘final order.’ ” Carquest of Hot Springs, Inc. v. General Parts, Inc., 361 Ark. 25, 32, 204 S.W.3d 53, 58 (2005). We said that “the circuit court’s order granting the motion to dismiss does not indicate that the court considered the issue of class certification.” Id. at 31, 204 S.W.3d at 57. Here, the circuit court’s order states that the issue of sovereign immunity was considered. Malone & Hyde, Inc. v. West & Co. of La., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989), held that while Arkansas Rule of Appellate Procedure — Civil 2 allows an appeal from a denial of an injunction, an order denying summary judgment that did not deny the request for an injunction was not immediately appealable. We said that “[i]t is clear the chancellor has not made a decision on the matter of injunctive relief except to say that he will not grant one by way of summary judgment. The possibility of an injunction being granted after the facts are developed remains.” Malone & Hyde, 300 Ark. at 437-38, 780 S.W.2d at 15. Here, the Lottery Commission presented its motion to dismiss on grounds of sovereign immunity to the trial court, the trial court considered this motion and entered an order denying the motion.
Next, the majority errs in concluding that the circuit court was silent on the issue of sovereign immunity by comparing this case to McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), and White v. Davis, 352 Ark. 183, 99 S.W.3d 409 (2003). The Wilcox court said | wthat “[wjhile the statement of facts in appellant’s brief recites that the attorneys for both parties met in chambers, that the motion in limine was heard by the trial court and the motion denied at that time, there is nothing in the record, nor consequently in appellant’s appendix, to show that the motion was ever ruled on.” Wilcox, 300 Ark. at 447, 780 S.W.2d at 18. The court further said that “[tjhere is no written order showing denial of the motion nor is there any record of proceedings in chambers where, appellant contends, the motion was denied.” Id. Here, it is undisputed that there are no “off the record” proceedings regarding sovereign immunity and the circuit court entered a written order denying appellant’s motion to dismiss.
Any relianee on White is also unsound, which is apparent when the concluding paragraph quoted by the majority is placed in the context of the preceding paragraph in the White opinion.
Here, Noel Baker’s counsel told the judge that he did not agree to the hearing, and it was counsel’s position that venue was in Searcy County, not Faulkner County. However, counsel made no mention of the venue statute, § 16-13-317, he now attempts to argue on appeal. Although the statute authorized the judge to hold the hearing in Faulkner County to render “appropriate orders” with respect to the pending cause in Searcy County, counsel failed to point out to the judge that only “contested cases” may not be tried outside the county of venue of the case without agreement of the parties. Despite this failure, Noel Baker now raises those specific venue issues in this appeal, although those issues were never brought to the trial judge’s attention for a ruling below.
Consistency requires that we follow our longstanding rule that a moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling, the issues are not preserved for our review. Because Baker did not properly obtain a ruling on his objection to venue being in Faulkner County, we are unable to reach the merits of this appeal, and the decision of the trial court is affirmed.
White, 352 Ark. at 186-87, 99 S.W.3d at 412-13 (footnotes and internal citations omitted). | MHere, it is uncontested that the Lottery Commission advanced the same argument below that it advances now on appeal. And again, there is a written order in this case, something that was lacking in White.
Because the issue of sovereign immunity was presented to the circuit court in a motion to dismiss and the circuit court’s order denying the motion to dismiss stated that it considered the issue of sovereign immunity, the issue is properly before us for review. I would review the issue on its merits.
HANNAH, C.J., and BROWN, J., join in this dissent.