Pruitt v. Sargent, 2021-CA-00511-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtKITCHENS, PRESIDING JUSTICE
PartiesKELVIN PRUITT, A MINOR BY AND THROUGH HIS MOTHER, LATRICE BROOKS v. JASON SARGENT, IN HIS OFFICIAL CAPACITY, DR. EARL WATKINS, IN HIS OFFICIAL CAPACITY, DR. ERRICK L. GREENE, IN HIS OFFICIAL CAPACITY, AND JACKSON PUBLIC SCHOOL DISTRICT
Docket Number2021-CA-00511-SCT
Decision Date20 October 2022

KELVIN PRUITT, A MINOR BY AND THROUGH HIS MOTHER, LATRICE BROOKS
v.

JASON SARGENT, IN HIS OFFICIAL CAPACITY, DR. EARL WATKINS, IN HIS OFFICIAL CAPACITY, DR. ERRICK L. GREENE, IN HIS OFFICIAL CAPACITY, AND JACKSON PUBLIC SCHOOL DISTRICT

No. 2021-CA-00511-SCT

Supreme Court of Mississippi, En Banc

October 20, 2022


DATE OF JUDGMENT: 12/21/2020

CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY HON. TOMIE T. GREEN TRIAL JUDGE:

TRIAL COURT ATTORNEYS: CYNTHIA HEWES SPEETJENS STEVEN LLOYD LACEY BRETT RAY KOEHN ALLISON PERRY FRY SONDRA OLIS MONCURE

ATTORNEY FOR APPELLANT: CYNTHIA HEWES SPEETJENS

ATTORNEYS FOR APPELLEES: ALLISON PERRY FRY STEVEN LLOYD LACEY

KITCHENS, PRESIDING JUSTICE

¶1. In the case before us, we find that the defendants waived the statute of limitations affirmative defense by failing to plead it adequately under Mississippi Rule of Civil Procedure 8(c).

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¶2. In 2008, minor Kelvin Pruitt lost two fingers in a bicycle chain accident shortly after accepting a ride home from school from another student. According to the complaint, Kelvin was a special needs student who had been ordered off the school bus and told to walk home. The plaintiff initially filed suit against the school district and two of the district's employees in 2009, but the action was dismissed voluntarily in 2018 in light of defects related to service of process. The plaintiff filed a second suit in 2018, which also was dismissed voluntarily. Third, the plaintiff filed the present lawsuit on January 16, 2020. The defendants submitted their answer and defenses on February 20, 2020. The parties engaged in discovery for several months, including preliminary interrogatories.

¶3. In June of 2020, the defendants filed a motion to dismiss on the ground that the statute of limitations had expired in 2010.[1] They argued that the statute of limitations, while initially tolled by the minors' saving statute,[2] had run without interruption from the filing of the first complaint on the minor's behalf in 2009. The plaintiff argued that the defendants had waived the statute of limitations defense by failing to raise it in their initial responsive pleading and, in the alternative, that the minors' saving statute continues to operate when a case brought on behalf of a minor is dismissed for reasons other than the merits. By the plaintiff's calculation, the statute of limitations did not expire until February 28, 2020, a year after Kelvin's twenty-first birthday. The circuit court granted the defendants' motion to dismiss, and the plaintiff now appeals.

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STANDARD OF REVIEW

¶4. A trial court's determination of whether an affirmative defense has been waived is reviewed for abuse of discretion. Est. of Puckett v. Clement, 238 So.3d 1139, 1144 (Miss. 2018).

DISCUSSION

¶5. Mississippi Rule of Civil Procedure 8(c) (emphasis added) provides in full:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counter-claim or a counter-claim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been proper designation.

"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." Hutzel v. City of Jackson, 33 So.3d 1116, 1119 (Miss. 2010) (quoting Pass Termite &Pest Control, Inc. v. Walker, 904 So.2d 1030, 1033 (Miss. 2004)). "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." MS Credit Ctr, Inc. v. Horton, 926 So.2d 167, 181 (Miss. 2006) (footnote omitted).

¶6. The defendants argue that the following responses were sufficient to preserve the affirmative defense under Rule 8(c) and the notice pleading standard:

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SECOND DEFENSE
The defendants are exempt from liability on the claims asserted herein by virtue of provisions of the Mississippi Tort Claims Act ("MTCA"), Miss. Code Ann. Section 11-46-1, et [s]eq.[;] therefore, the doctrine of sovereign immunity applies to bar the claims asserted in the Complaint.
TENTH DEFENSE
The facts not having been fully developed, the Defendants further affirmatively plead the following affirmative defenses as may be applicable in this action: assumption of risk, contributory negligence, and any other matter constituting an avoidance or affirmative defense.

The above responses contain no reference to the statute of limitations defense and are insufficient to put a plaintiff on notice to defend against it, even under Mississippi's generous notice pleading standard.

¶7. The defendants would have us construe the answer's broad reference to the entirety of Mississippi's Tort Claims Act as identification and preservation of a statute of limitations defense. The answer's Second Defense cites "Miss. Code Ann. § 11-46-1, et [s]eq." for its assertion that "the...

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