dissenting.
Because the majority errs in reaching the merits of Tilley’s argument that pre-litigation waivers of the right to a jury trial are unenforceable under the Arkansas Constitution, I respectfully dissent.
In reversing the circuit court’s order striking Tilley’s jury-trial demand, the majority accepts Tilley’s argument that the Arkansas Constitution prohibits pre-litigation waivers of the right to a jury trial. Regardless of the merits of Tilley’s argument, it should not be considered because Tilley first raised it in his reply to appel-lees’ response to his motion for a new trial. We have long held that arguments made for the first time in a motion for a new trial are not timely.
This court has repeatedly held that an objection first made in a motion for new trial is not timely. Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208 S.W.3d 792 (2005); Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003); Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Any error argued on appeal must have first been directed to the circuit court’s attention in some appropriate manner so that the court has an opportunity to address the issue; Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). A party cannot wait until the outcome of a case to bring an I terror to the circuit court's attention. Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003).
Quarles v. Courtyard Gardens Health &, Rehab., LLC, 2016 Ark. 112, at 11-12, 488 S.W.3d- 513, 521. This is true even when the issue is constitutional in nature. Plymate v. Martinelli, 2013 Ark. 194, 2013 WL 1932918. Moreover, the appellant must present his or her theory to the circuit court at the earliest opportunity in order to preserve it for appeal. Id.; see Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (holding the argument that the state and federal constitutions required appointed counsel in adoption proceeding was not preserved). Tilley’s' constitutional argument is one step further removed from being timely than those in Courtyard Gardens. This is because Tilley did not make his argument in his motion for a new trial itself, but-only in his reply to MNB and Moore’s response to his motion for a new trial.
The majority correctly states that an appellant must present his or her theory to the circuit, court at the earliest opportunity in order to preserve it for appeal, and that Tilley’s earliest opportunity was in his response to MNB and Moore’s motion to strike his demand for a jury trial. However, the majority errs in finding that Tilley presented his constitutional argument regarding waivers in this response. Tilley did argue that the Arkansas Constitution protects his right to a jury trial on his legal claims and that no clean-up doctrine could deprive him of that right. However, under his argument section entitled “Waiver,” Tilley cited the Arkansas Constitution but proceeded to argue that for a pre-litigation waiver to exist, the waiver must be knowingly, intelligently, and voluntarily made. |1flClearly, Tilley’s response to MNB and Moore’s motion to strike assumed the constitutionality of a pre-litigation waiver. Til-ley did not argue that preditigation waivers are unenforceable under the Arkansas Constitution, and he implicitly conceded that pre-litigation waivers are enforceable as long as they are knowingly, intelligently, and voluntarily made. In short, Tilley argued the Arkansas Constitution protects his right to a jury trial, but he did not argue that the Arkansas Constitution prohibits the pre-litigation waiver of that right. Tilley first argued that pre-litigation waivers are unconstitutional after the trial ended.
As we held in Lee v. Daniel, supra, even a constitutional argument" must be made before the entry of final judgment, and we noted there that the reason for the rule is to discourage lawyers “who might otherwise take a chance on a favorable result, and subsequently raise a constitutional claim if the gamble did not pay off.” Id. at 476-77, 91 S.W.3d 464. We should apply the same rule here.
Although Tilley did argue that the waiver was not knowingly, intelligently, and voluntarily executed, he presents himself as a sophisticated business person who expected to reap, substantial profits from development projects he was planning. Additionally, Tilley was well aware of his potential claims against MNB and Moore because the alleged misconduct by . MNB and Moore had already occurred. In fact, Tilley had already threatened litigation bet fore he signed the loan agreement. Tilley therefore knew, before he signed. the agreement containing the waiver, that he was waiving the right to a jury trial on the claims he later filed. Further, although Tilley argues, that he signed the. agreement after |ana “heated meeting,” and he did not have a “whole lot of choices left,” his vague statements are insufficient evidence of any alleged involuntariness.
Finally, Tilley failed to develop his argument before the circuit court that the waiver, even if valid, could not apply to his claims against Moore. When an argument is not fully developed at the trial level or on appeal, it is not preserved for review. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
Tilley’s constitutional argument was not preserved for appellate review, and the jury waiver was otherwise enforceable; therefore, the circuit court properly decided all claims without a jury, and Tilley’s other arguments are moot. Accordingly, I must dissent.