Hutzel v. City Of Jackson

• Decision Date: 06 May 2010
• Docket Number: No. 2008-CA-02134-SCT.,2008-CA-02134-SCT.
• Citation: 33 So.3d 1116
• Parties: Homer HUTZELv.CITY OF JACKSON, Mississippi.
• Court: Mississippi Supreme Court

33 So.3d 1116

Homer HUTZELv.CITY OF JACKSON, Mississippi.

No. 2008-CA-02134-SCT.

Supreme Court of Mississippi.

May 6, 2010.

[33 So.3d 1116 1117]

Steven Price Nixon, Sean A. Milner, Clinton, attorneys for appellant.

James Richard Davis, Jr., Lara E. Gill, Ridgeland, attorneys for appellee.

Before WALLER, C.J., DICKINSON and KITCHENS, JJ.

KITCHENS, Justice, for the Court:

¶ 1. Homer Hutzel filed suit for damages against the City of Jackson and Hemphill Construction Company alleging inverse condemnation, negligence, trespass, and nuisance arising out of the City of Jackson's efforts to improve the High Street corridor. The trial court granted summary judgment in favor of the City, finding that Hutzel had released the City from any and all claims arising from the High Street project, and that the consideration paid for the release was an accord and satisfaction of such claims. Hutzel appeals.

FACTS AND PROCEDURE

¶ 2. The relevant facts of the case are not in dispute. In 1999, the City of Jackson sought to improve the segment of High Street between North State Street and Interstate 55. To that end, City Project Number 464, commonly known as the High Street Improvement Project, was approved, and the City proceeded with the improvements.

¶ 3. During the course of the project, a ten-foot strip of land on the south side of High Street, owned by Three W, a Mississippi general partnership, and subject to a leasehold held by Hutzel, was needed for the widening of the street. The City of Jackson approached Three W and Hutzel and ultimately obtained a warranty deed from Three W, conveying the strip of land to the City, and a quitclaim deed from Hutzel, conveying his interest in the property to the City. Hutzel was paid $2,500 as consideration for the conveyance. In addition to the legal description and the conveyance language of the quitclaim deed, the document contained a release provision, which read:

It is further understood and agreed that the consideration herein named is full, complete and final payment and settlement of any claims or demands for damage accrued, accruing, or to accrue to the grantors herein, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed project No. 464, grade, water damage, and/or any other damage, right or claim whatsoever.

The quitclaim deed also said, “[i]t is further understood and agreed that this instrument constitutes the entire agreement

[33 So.3d 1116 1118]

between the grantor and the grantee, there being no oral agreements or representation of any kind.”

¶ 4. Prior to the conveyance of the land to the City, Hutzel had erected on the parcel a sign for Homer's Barbecue, which was removed after the strip of land had been conveyed to the City. After the conveyance and the removal of the sign, however, Hutzel retained a leasehold interest in the parcel adjacent to (immediately south of) the ten-foot strip of land, where he continued to operate the restaurant, Homer's Barbecue.

¶ 5. After commencement of the High Street Improvement Project, Homer's Barbecue allegedly began to suffer financially. Hutzel claimed that the City and its contractors had placed equipment, including machinery, barrels, traffic signs, and vehicles, in front of Homer's Barbecue during peak business hours and against the terms of the project, hindering customers from accessing the restaurant. Hutzel alleged that, as a consequence of these actions, Homer's Barbecue had suffered financially and eventually was forced to close its doors because of lost revenues.

¶ 6. Hutzel filed suit against the City of Jackson and its contractor, Hemphill Construction Company, on January 13, 2003, alleging that the City's actions that negatively had affected the parcel that was not conveyed, on which Homer's Barbecue was located, were tantamount to an unconstitutional taking, negligence, nuisance, and trespass.¹ On February 11, 2003, the City of Jackson filed its answer and affirmative defenses.

¶ 7. After engaging in discovery, on April 1, 2005, more than two years after the case had been filed, the City filed a motion for leave to amend its initial answer to include the affirmative defenses of release and accord and satisfaction. In its motion, the City alleged that certain events had transpired in the matter since the filing of its original answer, and that additional investigation had revealed additional defenses that were available to the defendant. The City did not reveal what events or investigation had led to the discovery of the new defenses. Hutzel objected to the motion, arguing that, because the City had failed to plead the defenses in compliance with Mississippi Rule of Civil Procedure 8(c), the City had waived its right to assert them.

¶ 8. Rejecting Hutzel's argument, the trial court granted the City leave to amend, and the City's amended answer was filed on August 29, 2005, affirmatively asserting release and accord and satisfaction. Shortly thereafter, the City filed a motion for summary judgment, alleging that the release provision in the quitclaim deed signed by Hutzel had released the City from any and all liability related to the High Street Improvement Project. On April 23, 2007, the trial court entered a memorandum opinion and order granting the City's summary judgment motion, and a final judgment for the City was entered. It is from this order that Hutzel appeals.

ISSUES

¶ 9. The two issues presented on appeal are (1) whether the trial court erred in allowing the City of Jackson to amend its answer, and (2) whether summary judgment in the City's favor was proper.² The adjudication of this matter

[33 So.3d 1116 1119]

on the first issue eliminates the need to address the second.

STANDARD OF REVIEW

¶ 10. When considering a trial court's decision to grant or deny a motion to amend a pleading, the standard of review is abuse of discretion. Pratt v. City of Greenville, 804 So.2d 972, 978 (Miss.2001).

ANALYSIS

¶ 11. Hutzel contends that, according to Mississippi Rule of Civil Procedure 8(c), the City waived its right to assert the affirmative defenses of release and accord and satisfaction when it failed to plead them in its initial answer and waited more than two years to assert these defenses. The City vaguely alleges that these defenses were not apparent at the time it filed the initial answer, and that pursuant to Rule 15(a), leave to amend the pleadings should be given freely. M.R.C.P. 15(a).

¶ 12. Rule 8(c) specifically requires that, in pleading to a preceding pleading, a party shall set forth affirmatively certain listed defenses, including accord and satisfaction and release.³ M.R.C.P. 8(c). This Court has interpreted this rule to mean that, generally, if a party fails to raise an affirmative defense in its original answer, the defense will be deemed waived. Pass Termite and Pest Control, Inc. v. Walker, 904 So.2d 1030, 1033 (Miss.2004) (holding that defendant had waived the right to compel arbitration). “Ordinarily, delay coupled with active participation in a lawsuit serves to waive affirmative defenses that otherwise would terminate the action.” Price v. Clark, 21 So.3d 509, 524 (Miss.2009) (citing MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006)). This rule aids in “this Court's effort to ensure judicial efficiency and the expeditious resolution of disputes.” Walker, 904 So.2d at 1035. Moreover, this approach gives parties incentive “to be more diligent in submitting defenses.” Id.

¶ 13. In MS Credit Center, Inc. v. Horton, 926 So.2d 167, this Court was presented with the question of whether a defendant's failure to pursue actively the right to compel arbitration for eight months amounted to a waiver of that defense. The defendant in Horton had asserted an affirmative defense in prior pleadings, yet proceeded to engage in the litigation process by “consenting to a scheduling order, engaging in written discovery, and conducting Horton's deposition.” Id. at 180. The Court in Horton noted that “[a] defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. at 181. The Court added that a party

[33 So.3d 1116 1120]

does not have an established number of days within which he or she must raise an affirmative defense; but, unless there are “extreme and unusual” circumstances which prohibit the party from asserting the defense, “an eight month unjustified delay in the assertion and pursuit of any affirmative defense ... coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Id. at 181.

¶ 14. Ultimately, the Court found no reasonable explanation for the eight-month delay in asserting the arbitration defense, and it held that the defendant had waived its right to compel arbitration. Id. at 181. Importantly, the Court added that its holding in Horton was not limited to the assertion of the right to compel arbitration, but that its pronouncement should be taken as the general rule for all affirmative defenses. Id. at 180.

¶ 15. In compliance with the rule announced in Horton, this Court consistently has held that, absent a reasonable explanation, failure to plead an affirmative defense according to Rule 8(c) will result in a waiver of that defense. In Estate of Grimes v. Warrington, 982 So.2d 365 (Miss.2008), the defendant doctor pled that he was entitled to tort immunity under the Mississippi Tort Claims Act (MTCA), but did not pursue the affirmative defense until five years later in his motion for summary judgment. Id. at 370. On appeal, this Court affirmed the trial court's finding that the doctor was immune from tort liability under the MTCA; however, because the doctor had actively engaged in the litigation and had failed to provide a reasonable explanation for his...