Kelley v. Johnson

Paul E. Danielson, Justice, dissenting.

laJ respectfully dissent. This court lacks jurisdiction to hear this appeal because there was no specific ruling on the issue of sovereign immunity. Arkansas Rule of Appellate Procedure — Civil 2(a)(10) (2015) permits an appeal from an interlocutory order denying a motion to dismiss based on the defense of sovereign immunity. See Ark. Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23 , 386 S.W.3d 400 . However, before an interlocutory appeal may be pursued from the denial of a motion to dismiss on the ground of sovereign immunity, we must have in place an order denying the motion to dismiss on that basis. Id.

Here, the ADC filed an interlocutory appeal from the circuit court’s order dated December 3, 2015. Therefore, this court’s review is limited to the December 3, 2015 order in determining whether the circuit court ruled on sovereign immunity. In that order, the circuit court makes very specific rulings on each claim, yet makes no ruling on sovereign immunity.

Contrary to the assertion of the majority, Alpha Marketing does apply in this case. This court has been clear that it will not presume a ruling from the circuit court’s silence, as we have held that we will not review a matter on which the circuit court has not ruled, “and a ruling should not be presumed.” Alpha Mktg., 2012 Ark. 23, at 7 , 386 S.W.3d at 404 (emphasis in original). As such, this court lacks jurisdiction to hear the instant appeal. Accordingly, I would dismiss this appeal without prejudice.