Jones v. FLUOR DANIEL SERVICES CORP.

• Decision Date: 29 April 2010
• Docket Number: No. 2008-CA-00456-SCT.,2008-CA-00456-SCT.
• Citation: 32 So.3d 417
• Court: Mississippi Supreme Court
• Parties: Gene JONES, Ashley Craft, Ralph Scott, Hardy Gordon, James Williams and Reggie Williams v. FLUOR DANIEL SERVICES CORPORATION.

32 So.3d 417

Gene JONES, Ashley Craft, Ralph Scott, Hardy Gordon, James Williams and Reggie Williams v.FLUOR DANIEL SERVICES CORPORATION.

No. 2008-CA-00456-SCT.

Supreme Court of Mississippi.

February 18, 2010.

Rehearing Denied April 29, 2010.

Thomas Quitman Brame, Jr., attorney for appellants.

Gary E. Friedman, Steve J. Allen, Saundra Brown Strong, attorneys for appellee.

EN BANC.

PIERCE, Justice, for the Court.

¶ 1.This case comes before this Court for the second time on appeal from the Jasper County Circuit Court's grant of Fluor Daniel Services Corporation's Motion for Summary Judgment.The trial court dismissed the plaintiffs' claims of intentional infliction of emotional distress with prejudice as barred by the statute of limitations.We affirm the trial court on all issues.

FACTS

¶ 2.The six plaintiffs in this case are all African-American males and former employees of Fluor Daniel Services Corporation.While employed with Fluor Daniel, they worked under the direct supervision of Rudy Amaro, a Mexican man.The plaintiffs' complaint alleges Amaro committed a number of racially-motivated offenses while acting in the scope, course, and authority of his employment.The plaintiffs filed a joint action against Fluor Daniel, claiming Fluor Daniel is vicariously liable for Amaro's actions.The complaint alleges these actions constitute "a wrongful and malicious discharge, a negligent infliction of emotional distress, a willful and malicious breach of the duty of good faith and fair dealings, a retaliatory discharge, and a grievous and malicious tort under other various theories of the law."Amaro also was named a defendant, but was never served with process and is believed to have returned to Mexico.

¶ 3.This case came before this Court on appeal previously from the trial court's prior grant of summary judgment.Jones v. Fluor Daniel Services Corp.,959 So.2d 1044(Miss.2007)("Jones I").In Jones I,this Court reversed the trial court's grant of summary judgment as to the claim of "tortious infliction of emotional distress" and remanded the matter to the trial court for further proceedings on that issue alone.We stated, "in viewing the record in its entirety in the light most favorable to the plaintiffs, we find there is enough evidence to maintain a cause of action for intentional infliction of emotional distress."Id. at 1050.This Court affirmed the trial court's grant of summary judgment as to all other issues.

¶ 4.On remand, Fluor Daniel again moved for summary judgment—this time alleging the statute of limitations had run on the plaintiffs' intentional-infliction-of-emotional-distress claim.All the plaintiffs were laid off between October 27, 2001, and February 22, 2002.This action was not commenced until April 4, 2003.The trial court found that, although intentional infliction of emotional distress is not listed specifically as one of the intentional torts barred by a one-year statute of limitations in Mississippi Code Section 15-1-35, this Court established that the one-year statute of limitations applies to claims for intentional infliction of emotional distress in CitiFinancial Mortgage Co., Inc. v. Washington,967 So.2d 16, 19(Miss.2007).The trial court further found that the defendant did not waive the statute-of-limitations defense, granted Fluor Daniel's motion for summary judgment, and dismissed the plaintiffs' claim as time-barred.Aggrieved by the trial court's grant of summary judgment, the plaintiffs again appeal to this Court.

ANALYSIS

¶ 5.The plaintiffs raise the following issues on appeal:

I.Whether the trial court erred by granting summary judgment as to the plaintiffs' intentional-infliction-of-emotional-distress claims.

II.Whether the trial court erred in applying a one-year statute of limitations to an intentional-infliction-of-emotional-distress claim.

III.Whether the trial court abused its discretion by allowing the defendant to file its Answer to the Amended Complaint four years late.

IV.Whether the trial court abused its discretion by allowing the defendant to propound initial discovery more than four years late.

¶ 6.This Court reviews an order granting summary judgment de novo.Mantachie Natural Gas Dist. v. Miss. Valley Gas Co.,594 So.2d 1170, 1172(Miss.1992)(citingClark v. Moore Mem'l United Methodist Church,538 So.2d 760, 762(Miss.1989)).Furthermore, this Court reviews questions of law, including statute-of-limitations issues, de novo.Stephens v. Equitable Life Assurance Soc'y of U.S.,850 So.2d 78, 81(Miss.2003)(quotingABC Mfg. Corp. v. Doyle,749 So.2d 43, 45(Miss.1999)).Where summary judgment is at issue, "the evidence must be viewed in the light most favorable to the party against whom the motion has been made."Id.In those instances, "all that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact."Simmons v. Thompson Mach. of Miss., Inc.,631 So.2d 798, 801(Miss.1994).

I.

¶ 7.The plaintiffs contend that the court erred in allowing Fluor Daniel to maintain the defense of statute of limitations asserted in the original answer.The plaintiffs allege that Fluor Daniel has waived its right to rely on the statute of limitations as a defense in this matter, and rely on the fact that Fluor Daniel pleaded the statute of limitations as a defense in nonspecific terms.The exact language on which the plaintiffs focus comes from Fluor Daniel's original answer, in which it stated that the claim "may be barred by statutes of limitations."(Emphasis added.)The plaintiffs essentially assert that the use of the word "may" rather than "is" is a failure to plead affirmatively the defense of statute of limitations.This argument is without merit.

¶ 8.The plaintiffs allege that "more critical to the determination of this point is the fact that the Defendant did absolutely nothing to advance or assert any argument that the statute of limitations had run . . . while participating in this litigation for years and years."This Court has said, "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."Miss. Credit Center, Inc. v. Horton,926 So.2d 167(Miss.2006).

¶ 9.The relevant issue in Horton was whether or not the defendant waived his right to compel arbitration by waiting more than eight months to pursue his right to arbitrate, while actively participating in the litigation.The defendant asserted that right in his answer, but did not file a motion to compel arbitration or request a hearing on the motion within what this Court considered a reasonable time.Furthermore, the defendant in Horton substantially engaged in the litigation "by consenting to a scheduling order, engaging in written discovery, and conducting a deposition."Id. at 180.He provided no explanation for the delay.

¶ 10.This Court held, "although participation in the litigation is an important factor to be considered, more is required to constitute a waiver."Id.We found that participation in the litigation, coupled with substantial and unreasonable delay in pursuing the right to compel arbitration, constituted a waiver of that right.Id.We further pointed out that "prejudice to the party resisting arbitration is a factor to be considered."Id. at n. 7(citingRussell v. Performance Toyota, Inc.,826 So.2d 719, 724(Miss.2002)).

¶ 11.Finally, the Horton Court said, "our holding today is not limited to assertion of the right to compel arbitration."Id. at 180.We found that unreasonable failure to timely assert any right which could terminate the litigation could lead to a waiver of such right if coupled with participation in the litigation process.In an attempt to define what constitutes an unreasonable delay, this Court stated:

We decline today to set a minimum number of days which will constitute unreasonable delay in every case, but rather we defer such findings for the trial court on a case by case basis.We do hold however that—absent extreme and unusual circumstances—an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.

Id.(emphasis added).

¶ 12.In the present matter, there is uncertainty as to when the plaintiffs' claim for intentional infliction of emotional distress was raised.The plaintiffs' original complaint states that the defendant's actions constitute "a negligent infliction of emotional distress."The complaint does not mention intentional infliction of emotional distress.The defendant stated in its answer that "the plaintiffs' claims, to the extent any are stated, may be barred by statutes of limitations."

¶ 13.In a written response to Fluor Daniel's motion for summary judgment in Jones I,the plaintiffs stated that they had demonstrated "a viable cause of action on a theory of infliction of emotional distress."Their argument is based on two cases which directly address intentional infliction of emotional distress.¹At the hearing on the motion for summary judgment in Jones I,the plaintiffs' counsel referred to the claims as "intentional infliction of emotional distress."The trial court's order granting summary judgment in Jones I described the cause of action as "tortious infliction of emotional distress."

¶ 14.The plaintiffs' brief in Jones I refers to its emotional-distress claim as simply "infliction of emotional distress."However, Fluor Daniel's brief in Jones I refers to the plaintiffs' claim as "intentional infliction of emotional distress," and was filed with this Court on September 9, 2006.This Court...