Temco Construction, LLC v. Gann

KAREN R. BAKER, Justice,

dissenting.

The majority concludes that the circuit court did not rule on whether TEMCO was exempted from the notice requirement of Arkansas Code Annotated section 18^44— 115(a)(4). I dissent.

The circuit court found that TEMCO’s complaint failed to state a claim upon which relief could be granted because TEMCO was barred from bringing the claim by Arkansas Code Annotated section 18-44-115(a)(4). The court’s order specifically stated that it considered all | ^arguments made by TEMCO and ruled that its claim was barred. Those arguments included TEMCO’s contention that it was exempted from the requirements of section 18-44-115(a)(7).

In support of their holding that this issue was not preserved for appeal, the majority cites Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400. Athough I still believe that Alpha Marketing was wrongly decided for the reasons stated in my dissent in that case, its holding simply does not apply here.

In Alpha Marketing, the plaintiff filed a complaint for declaratory judgment against the defendant, the Arkansas Lottery Commission, seeking a determination that its trademarks were valid and that it was entitled to exclusive use of those marks, and included a claim for trademark infringement. The defendant filed a motion to dismiss asserting various defenses, including sovereign immunity. The circuit court entered an order providing, “After reviewing the motion, response, reply, supporting briefs, and after considering the argument made by counsel during a February 24, 2011 hearing on the motion to dismiss, the Court denies the motion.” The circuit court’s order did not specifically state that the defendant’s motion to dismiss based on sovereign immunity was denied. The defendant brought an interlocutory appeal, arguing that the circuit court erred in denying its motion to dismiss based on sovereign immunity. However, holding that the circuit court had not ruled on the issue, this court dismissed the appeal for lack of jurisdiction to hear to hear the interlocutory appeal.

Ordinarily, an appeal must be taken by a final judgment or decree entered by the circuit court. Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745. However, Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure — Civil permits an appeal from an interlocutory | inorder denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity of a government official. The rational for this exception is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007).

In TEMCO’s case, the motion to dismiss was granted, thus the order is final and appealable. Our jurisdiction is based on Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure — Civil. Because TEM-CO’s appeal is not an interlocutory appeal based on sovereign immunity, our ruling in Alpha Marketing does not apply.

Though not cited by either party, the majority cites Ground Zero Construction, Inc. v. Walnut Creek, LLC, 2012 Ark. 243, 410 S.W.3d 579, as being “on all fours” with this case. Ground Zero is distinguishable, however, because there the circuit court did not include a ruling on an issue in the final written order, but decided the case on another issue without consideration of the argument made on appeal.

Because the circuit court did rule in its written order, after consideration of TEM-CO’s arguments, that the suit was barred by Arkansas Code Annotated section 18-44-115(a)(4), I would decide this case on the merits.

Accordingly, I dissent.

HART, J., joins in this dissent.