affirmative defense in Arkansas

2022We therefore treat sovereign immunity like an affirmative defense that a party must first raise below.3 Id. at 5, 540 S.W.3d at 267 ; see also id. at 16, 540 S.W.3d at 273 (“I join the majority 2 “All other classified or unclassified felons who are incarcerated therefor shall be eligible for transfer to community punishment after having served one-third (1/3) or one- half (1/2), with credit for meritorious good time, of their sentences depending on the seriousness determination made by the Arkansas Sentencing Commission, or one-half (1/2), with credit for meritorious good time, of the time to

2022We therefore treat sovereign immunity like an affirmative defense that a party must first raise below.3 Id. at 5, 540 S.W.3d at 267 ; see also id. at 16, 540 S.W.3d at 273 (“I join the majority 2 “All other classified or unclassified felons who are incarcerated therefor shall be eligible for transfer to community punishment after having served one-third (1/3) or one- half (1/2), with credit for meritorious good time, of their sentences depending on the seriousness determination made by the Arkansas Sentencing Commission, or one-half (1/2), with credit for meritorious good time, of the time to

2019See , e.g. , Walther v. FLIS Enters., Inc. , 2018 Ark. 64 , 540 S.W.3d 264 (sovereign immunity is an affirmative defense that must be raised in a responsive pleading) and Arkansas Dep't of Veterans Affairs v. Mallett , 2018 Ark. 217 , 549 S.W.3d 351 (without overruling FLIS , failure to raise sovereign immunity as affirmative defense in responsive pleading simply does not matter).

2018FLIS provides that the failure to assert sovereign immunity as an affirmative defense amounts to a waiver of this doctrine, but in *204 Arkansas Department of Veterans Affairs v. Mallett , 2018 Ark. 217 , 549 S.W.3d 351 , this court held that the failure to assert sovereign immunity simply does not matter.

2025This court explained, “We will not address moot issues or issue advisory opinions even on subject-matter jurisdiction.”4 We should not delay justice 2 Vent v. Johnson, 2009 Ark. 92, at 14 , 303 S.W.3d 46, 53 (“[W]e hold that the immunity afforded by section 21-9-301 is an affirmative defense that must be specifically pled and proven in order to be considered by the circuit court.”(emphasis added)); Seth v. St.

2025This court explained, “We will not address moot issues or issue advisory opinions even on subject-matter jurisdiction.”4 We should not delay justice 2 Vent v. Johnson, 2009 Ark. 92, at 14 , 303 S.W.3d 46, 53 (“[W]e hold that the immunity afforded by section 21-9-301 is an affirmative defense that must be specifically pled and proven in order to be considered by the circuit court.”(emphasis added)); Seth v. St.

2016The defendant’s burden of proof was clearly stated in Doles v. State, 275 Ark. 448 , 631 S.W.2d 281 (1982): “Justification is not an affirmative defense which must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it.” Id. at 450 , 631 S.W.2d at 282 (emphasis added).

2016The defendant’s burden of proof was clearly stated in Doles v. State, 275 Ark. 448 , 631 S.W.2d 281 (1982): “Justification is not an affirmative defense which must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it.” Id. at 450 , 631 S.W.2d at 282 (emphasis added).

2012See, e.g., Rodgers v. CWR Constr., Inc., 343 Ark. 126 , 33 S.W.3d 506 (2000).

2012See, e.g., Rodgers v. CWR Constr., Inc., 343 Ark. 126 , 33 S.W.3d 506 (2000).

2020He asserts that Otis did not file an answer that claimed any affirmative defenses; thus, the defense of statute of limitations was waived. 2 While it is true that failure to plead an affirmative defense can result in a waiver and exclusion of the defense from the case, Poff v. Brown, 374 Ark. 453, 455 , 288 S.W.3d 620, 622 (2008), what Harris’s argument fails to do is discuss how Otis’s amended answer affects the case at bar.

2020He asserts that Otis did not file an answer that claimed any affirmative defenses; thus, the defense of statute of limitations was waived. 2 While it is true that failure to plead an affirmative defense can result in a waiver and exclusion of the defense from the case, Poff v. Brown, 374 Ark. 453, 455 , 288 S.W.3d 620, 622 (2008), what Harris’s argument fails to do is discuss how Otis’s amended answer affects the case at bar.

2025Ctr., 375 Ark. 413, 419 , 291 S.W.3d 179, 184 (2009) (“[C]haritable immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Ark.

2025Ctr., 375 Ark. 413, 419 , 291 S.W.3d 179, 184 (2009) (“[C]haritable immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Ark.

2019Dep't of Human Servs. , 2018 Ark. 358 , at 5-6, 562 S.W.3d 201 , 203-04 (Hart, J., concurring) (" FLIS provides that the failure to assert sovereign immunity as an affirmative defense amounts to a waiver of this doctrine, but in [ Mallett ], this court held that the failure to assert sovereign immunity simply does not matter.

2019These cases are at odds on this question, and the majority's decision here to cite FLIS as controlling authority only renders our jurisprudence further indiscernible."); Id. at 8, 562 S.W.3d at 205 (Wynne, J., dissenting) ("The majority cites [ FLIS ] for the proposition that sovereign immunity is not a matter of subject-matter jurisdiction that may be addressed for the first time on appeal; rather, it is an affirmative defense that must be raised and ruled on at the circuit court level in order to preserve the issue.

1991See also McCaslin v. State, 298 Ark. 335 , 767 S.W.2d 306 (1989), in which we affirmed a trial courts’ denial of a motion for directed verdict based on the affirmative defense of entrapment because the defendant failed to prove entrapment as a matter of law; Owens v. State, 300 Ark. 73 , 777 S.W.2d 205 (1989), also holding that an affirmative defense is established as a matter of law only if there are no factual issues remaining to be resolved by the trier of fact.

1991See also McCaslin v. State, 298 Ark. 335 , 767 S.W.2d 306 (1989), in which we affirmed a trial courts’ denial of a motion for directed verdict based on the affirmative defense of entrapment because the defendant failed to prove entrapment as a matter of law; Owens v. State, 300 Ark. 73 , 777 S.W.2d 205 (1989), also holding that an affirmative defense is established as a matter of law only if there are no factual issues remaining to be resolved by the trier of fact.

2021Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003).

2021Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003).

2025Ctr., Inc., 373 Ark. 472 , 480–81, 284 S.W.3d 486 , 492–93 (2008) (“We agree and hold that charitable immunity is an affirmative defense . . . [and] must be specifically pled to be considered by the circuit court.” (emphasis added)).

2025Ctr., Inc., 373 Ark. 472 , 480–81, 284 S.W.3d 486 , 492–93 (2008) (“We agree and hold that charitable immunity is an affirmative defense . . . [and] must be specifically pled to be considered by the circuit court.” (emphasis added)).

2000See Southern Farmers Assoc., Inc. v. Wyatt, 234 Ark. 649 , 353 S.W.2d 531 (1962).

2000See Southern Farmers Assoc., Inc. v. Wyatt, 234 Ark. 649 , 353 S.W.2d 531 (1962).

1991The State then cites McCaslin v. State, 298 Ark. 335 , 767 S.W.2d 306 (1989), in which we made it clear that a jury is not required to believe a defendant’s evidence on the affirmative defense of entrapment.

1991The State then cites McCaslin v. State, 298 Ark. 335 , 767 S.W.2d 306 (1989), in which we made it clear that a jury is not required to believe a defendant’s evidence on the affirmative defense of entrapment.

2025See, e.g., Beeson v. Beeson, 11 Ark.

2007App. 284 , 198 S.W.3d 127 (2004) (stating that because comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff was at fault); Beeson v. Beeson, 11 Ark.

2019Dr. Wood opined that appellant’s schizoaffective disorder prevented her from appreciating the criminality of her conduct or to conform her conduct to the law on September 25, 14 (Repl. 2013). 15 Marcyniuk v. State, 2010 Ark. 257 , 373 S.W.3d 243 . 16 Davis v. State, 368 Ark. 401 , 246 S.W.3d 862 (2007). 17 Navarro v. State, 371 Ark. 179 , 264 S.W.3d 530 (2007). 13 2016.

2019Dr. Wood opined that appellant’s schizoaffective disorder prevented her from appreciating the criminality of her conduct or to conform her conduct to the law on September 25, 14 (Repl. 2013). 15 Marcyniuk v. State, 2010 Ark. 257 , 373 S.W.3d 243 . 16 Davis v. State, 368 Ark. 401 , 246 S.W.3d 862 (2007). 17 Navarro v. State, 371 Ark. 179 , 264 S.W.3d 530 (2007). 13 2016.

2019Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, at 6 , 386 S.W.3d 400, 404 (concluding that the trial court's failure to rule on sovereign immunity prevented appellate review).” Following the majority’s decision in Andrews, saying that sovereign immunity is like an affirmative defense is akin to saying a Bengal tiger is like a house cat.

2019Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, at 6 , 386 S.W.3d 400, 404 (concluding that the trial court's failure to rule on sovereign immunity prevented appellate review).” Following the majority’s decision in Andrews, saying that sovereign immunity is like an affirmative defense is akin to saying a Bengal tiger is like a house cat.

2015Wedgeworth v. State, 301 Ark. 91, 93 , 782 S.W.2d 357, 358 (1990).

2015Wedgeworth v. State, 301 Ark. 91, 93 , 782 S.W.2d 357, 358 (1990).

2005Allen v. Wallis, 279 Ark. 149 , 650 S.W.2d 225 (1983); Kendrick v. Bowden, 211 Ark. 196 , 199 S.W.2d 740 (1947).

2005Allen v. Wallis, 279 Ark. 149 , 650 S.W.2d 225 (1983); Kendrick v. Bowden, 211 Ark. 196 , 199 S.W.2d 740 (1947).

2001See, e.g., Davasher v. State, 308 Ark. 154 , 823 S.W.2d 863 (1992).

2001See, e.g., Davasher v. State, 308 Ark. 154 , 823 S.W.2d 863 (1992).

2001See also Mask v. State, 314 Ark. 25 , 86 S.W.2d 91 (1993) (once the State meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence).

2001See also Mask v. State, 314 Ark. 25 , 86 S.W.2d 91 (1993) (once the State meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence).

1995Walker v. State, 308 Ark. 498 , 825 S.W.2d 822 (1992).

1995Walker v. State, 308 Ark. 498 , 825 S.W.2d 822 (1992).

1993Davasher v. State, supra; Robertson v. State, 304 Ark. 332 , 802 S.W.2d 920 (1991); Campbell v. State, 265 Ark. 77 , 576 S.W.2d 938 (1979).

1993Davasher v. State, supra; Robertson v. State, 304 Ark. 332 , 802 S.W.2d 920 (1991); Campbell v. State, 265 Ark. 77 , 576 S.W.2d 938 (1979).