Kimball Glassco Residential Center, Inc. v. Terrance Shanks ( 2009 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-IA-01617-SCT
KIMBALL GLASSCO RESIDENTIAL CENTER,
INC. AND VERA RICHARDSON
v.
TERRANCE SHANKS AS NEXT OF KIN OF LOIS
SHANKS
DATE OF JUDGMENT: 09/15/2009
TRIAL JUDGE: HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: WADE G. MANOR
JAMIE LEIGH HEARD
ATTORNEY FOR APPELLEE: ELLIS TURNAGE
NATURE OF THE CASE: CIVIL - TORTS - OTHER
DISPOSITION: REVERSED AND RENDERED - 06/09/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. Terrance Shanks filed this personal-injury action on behalf of his mother, Lois
Shanks, against Kimball Glassco Residential Center, Inc. and Vera Richardson. Shanks
alleged that Lois was injured when Richardson lost control of a van she was driving, in
which Lois was a passenger. Richardson filed a motion to dismiss, asserting that she was
employed by Delta Community Mental Health Service (DCMHS), not Kimball Glassco, and
that the action was barred by the one-year statute of limitations under the Mississippi Tort
Claims Act (MTCA). Miss. Code Ann. § 11-46-11(3) (Rev. 2002). Kimball Glassco’s
answer asserted that Kimball Glassco is a state entity entitled to the protections of the
MTCA.
¶2. At the hearing on the motion to dismiss, Kimball Glassco and Richardson argued that
Shanks’s action was time-barred under the MTCA. The trial court denied the motion to
dismiss, holding that the defendants had waived their statute-of-limitations defense by failing
to timely raise and pursue the defense while actively participating in the litigation. The trial
court held alternatively that the defendants were estopped from asserting the MTCA’s one-
year statute of limitations based on a misrepresentation by the Mississippi Tort Claims Board
(MTCB) that DCMHS was not a state entity. This Court has granted the defendants’ petition
for an interlocutory appeal. Because the defendants did not waive their statute-of-limitations
defense, and Kimball Glassco and Richardson were not equitably estopped by the
misrepresentation of the MTCB, we reverse and render the decision of the trial court.
FACTS
¶3. Shanks filed the instant lawsuit on April 8, 2008, alleging that, on April 15, 2005, Lois
had been a passenger in an automobile owned by Kimball Glassco and driven by Richardson.
Shanks claimed that Lois had been injured when Richardson negligently failed to keep a
proper lookout and lost control of the automobile. Shanks alleged that Richardson was
employed by Kimball Glassco, and that Kimball Glassco was vicariously liable for
Richardson’s negligence because the accident had occurred in the course and scope of
Richardson’s employment.
¶4. Richardson filed a motion to dismiss, alleging that she was employed by DCMHS and
that, because DCMHS is a state entity, she is entitled to the protections of the MTCA.
2
Richardson admitted that Shanks had given a notice of claim to DCHMS as required by
Mississippi Code Section 11-46-11(3). However, she alleged that Shanks’s lawsuit was time-
barred by the MTCA’s one-year statute of limitations. See Miss. Code Ann. § 11-46-11(3)
(Rev. 2002). In its answer, Kimball Glassco averred that it is a corporation created under the
laws of the State of Mississippi by the board of DCMHS. On that basis, Kimball Glassco
asserted that it is a state entity covered by the MTCA. Kimball Glassco also averred that
Richardson had been employed by DCMHS, not Kimball Glassco.
¶5. Shanks filed a response disputing the applicability of the MTCA and alleging that, in
the July 28, 2006, letter, the defendants and the MTCB 1 had made misrepresentations that
detrimentally had induced Shanks to file suit outside the MTCA’s limitations period.
Therefore, Shanks argued, the defendants were equitably estopped from relying on the MTCA
statute of limitations as an affirmative defense. Shanks also argued that the statute of
limitations was tolled by the defendants’ fraudulent concealment. The same day, Shanks filed
a motion for leave to amend the complaint to add the MTCB as a defendant and add claims
for concealment, equitable and judicial estoppel, waiver, detrimental reliance, and deprivation
of notice and due process of law.
¶6. In support of the equitable-estoppel argument, Shanks attached to the motion to amend
a letter from Bruce Donaldson of the MTCB to Shanks’s counsel, dated July 28, 2006. The
letter acknowledged that Shanks had given a notice of claim to DCMHS and the Mississippi
1
The powers and duties of the MTCB are codified at Mississippi Code Section 11-46-
19 (Supp. 2010). These powers and duties include, inter alia, overseeing the Tort Claims
Fund, assigning litigated claims to attorneys where necessary, and purchasing insurance
policies for the protection of the State. Id.
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Department of Mental Health.2 The letter stated that the MTCB had been advised by the
Mississippi Department of Mental Health that DCMHS was not a state agency or a department
or division of the Mississippi Department of Mental Health. Shanks alleged that the MTCB’s
misrepresentation had induced him to file suit outside the one-year statute of limitations
applicable to a state entity under the MTCA.
¶7. On June 8, 2009, Kimball Glassco and Richardson filed a notice of hearing of the Motion
to Dismiss. The hearing occurred on August 19, 2009. On the day of the hearing, Shanks filed
a supplemental response, claiming that the defendants had waived their affirmative defenses
under the MTCA by failing to seek a timely hearing. The trial court held that Kimball Glassco
and Richardson had waived their MTCA defenses because they had failed timely and
reasonably to raise and pursue enforcement of those defenses while actively participating in the
litigation. Alternatively, the trial court found that Kimball Glassco and Richardson were
equitably estopped from pursuing their MTCA defenses based on the letter from the MTCB that
stated DCMHS was not a state entity.
STANDARD OF REVIEW
¶8. This Court applies de novo review to the grant or denial of a motion to dismiss or a
motion for summary judgment. Price v. Clark, 21 So. 3d 509, 517 (Miss. 2009).
DISCUSSION
I. WHETHER THE TRIAL COURT ERRED IN DENYING SHANKS’S
MOTION TO DISMISS.
A. Waiver
2
Shanks filed the notice of claim on April 4, 2006.
4
¶9. The MTCA provides the exclusive civil remedy against a governmental entity and its
employees. Miss. Code Ann. § 11-46-7(1) (Rev. 2002). All actions brought under the MTCA
are subject to a one-year statute of limitations, which is tolled by a timely-filed notice of claim.
Miss. Code Ann. § 11-46-11(3) (Rev. 2002). A party instigating a claim under the MTCA must
file a notice of claim with the chief executive officer of the governmental entity ninety days
before maintaining an action. Miss. Code Ann. § 11-46-11(1) (Rev. 2002).
¶10. A governmental entity includes the State and its political subdivisions. Miss. Code Ann.
§ 11-46-1(g) (Rev. 2002). The “State” includes “the State of Mississippi and any office,
department, agency, division, bureau, commission, board, institution, hospital, college,
university, airport authority, or other instrumentality thereof, . . . .” Miss. Code Ann. § 11-46-
1(j) (Rev. 2002). The definition of “political subdivision” encompasses “any county,
municipality, school district, community hospital . . . airport authority or other instrumentality
thereof . . . .” Miss. Code Ann. § 11-46-1(i) (Rev. 2002). Any claim against an employee of
a governmental entity for acts arising out of his or her employment must be brought pursuant
to the MTCA. Miss. Code Ann. § 11-46-7 (Rev. 2002). In City of Hattiesburg v. Region XII
Commisson on Mental Health and Retardation, 654 So. 2d 516, 517 (Miss. 1995), this Court
held that a regional mental-health commission is a state agency.
¶11. Kimball Glassco and Richardson assert that they are entitled to the privileges and
immunities of the MTCA. The trial court implicitly held that Kimball Glassco and Richardson
were covered by the MTCA by holding that they had waived their MTCA defenses or were
estopped from asserting them. On appeal, Shanks does not dispute that Kimball Glassco and
Richardson are covered by the MTCA. Rather, Shanks argues that, as found by the trial court,
5
Kimball Glassco and Richardson either waived their MTCA defenses, or they are estopped from
asserting them by the MTCB letter.
¶12. Kimball Glassco and Richardson argue that the trial court erred by finding that they had
waived their affirmative defenses by failing to timely and reasonably pursue those defenses
while actively participating in the litigation. This Court has held 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.” MS Credit Ctr.,
Inc., v. Horton, 926 So. 2d 167, 180 (Miss. 2006). To pursue an affirmative defense means “to
plead it, bring it to the court’s attention, and request a hearing.” Estate of Grimes v.
Warrington, 982 So. 2d 365, 370 (Miss. 2008) (citing Horton, 926 So. 2d at 181). Because
MTCA immunity is considered to be an affirmative defense, this Court has held that a
governmental entity’s immunity under the MTCA is subject to waiver. Id.
¶13. In his brief, Shanks makes several admissions that both Kimball Glassco and Richardson
raised their MTCA defenses on May 12, 2008. Nothing further transpired in the case until April
6, 2009, when Shanks noticed the service of discovery on the defendants, including
interrogatories, requests for production of documents, and requests for admissions. On May 14
and May 22, 2009, the defendants served discovery responses on Shanks. The trial court’s
order recites correspondence between the parties concerning the motion to dismiss as follows:3
3
Although copies of this correspondence are included in Kimball Glassco’s and
Richardson’s record excerpts, this correspondence was not made a part of the official record
in this case. This correspondence and other extra-record documents included in the record
excerpts are the subject of a motion to dismiss filed by Shanks. “‘[T]his Court will not
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Correspondence dated June 27, 2008 from defense counsel to counsel for
the Plaintiff reaffirmed the Defendant’s assertion of the statute of limitations
defense. On January 13, 2009, counsel for the Defendants against [sic] asserted
the same position and informed Plaintiff’s counsel of his intent to set the motion
for hearing. On April 8, 2009, available hearing dates were provided by defense
counsel to counsel for the Plaintiff. After receiving no response from Plaintiff’s
counsel, on May 12, 2009, counsel for the Defendant again requested dates that
Plaintiff’s counsel could be made available for hearing. On May 21, 2009,
Plaintiff’s counsel responded by requesting additional dates for the following
month. Finally, on June 4, 2009, counsel for both parties agreed on a hearing
date. On June 8, 2009, Defendants formally noticed their Motion to Dismiss for
hearing. On August 19, 2009, a hearing was held on Defendants’ Motion to
Dismiss.
¶14. Thus, after the defendants had asserted their statute-of-limitations defense, the case lay
dormant on the docket for approximately eleven months, from May 12, 2008, until April 6,
2009. During this dormancy period, on January 13, 2009, Kimball Glassco and Richardson
asserted their statute-of-limitations defense in correspondence to Shanks. Approximately three
months later, on April 6, 2009, Shanks served discovery on the defendants. Two days later,
Kimball Glassco and Richardson proposed available hearing dates for the motion to dismiss.
When they received no response from Shanks, they again requested proposed hearing dates on
May 12, 2009. They responded to Shanks’s discovery requests on May 14 and May 22. On
May 21, 2009, Shanks responded with proposed hearing dates. On June 4, 2009, both parties’
consider matters which do not appear in the record and must confine itself to what actually
does appear in the record.’” Rushing v. State, 711 So. 2d 450, 454 (Miss. 1998) (quoting
Medina v. State, 688 So. 2d 727, 732 (Miss. 1996)). If a party believes that the appellate
record contains errors or omissions, the proper procedure for “Correction or Modification of
the Record” is outlined in Mississippi Rule of Appellate Procedure 10(e). See M.R.A.P.
10(e). This Court will not consider the extra-record materials filed with the record excerpts,
and Shanks’s motion to strike these materials is granted. However, it is apparent from the
trial court’s order that the correspondence was considered by the trial court in making its
ruling. Because this order is a part of the official record, we are able to rely on its discussion
of the correspondence in determining the issues on appeal.
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counsel agreed to a hearing date. Kimball Glassco noticed the hearing on the motion to dismiss
on June 8, 2009, and it occurred on August 19, 2009.
¶15. In Horton, the defendants asserted their right to arbitration in their answer, but then they
participated in the litigation by consenting to a scheduling order, engaging in discovery, and
taking a deposition. Horton, 926 So. 2d at 180. After eight months of substantial participation
in the litigation, they filed a motion to compel arbitration. Id. This Court held that the
defendants had waived their right to compel arbitration by substantially participating in the
litigation for eight months. Id. at 181. The Court held that the determination of whether a delay
in pursuing an affirmative defense is unreasonable is subject to a case-by-case analysis, and that
no minimum number of days would constitute an unreasonable delay in every case. Id. The
Court stated that:
[O]rdinarily, neither delay in pursuing the right to compel arbitration nor
participation in the judicial process, standing alone, will constitute a waiver. That
is to say, a party who invokes the right to compel arbitration and pursues that
right will not ordinarily waive the right simply because of involvement in the
litigation process, and a party who seeks to compel arbitration after a long delay
will not ordinarily be found to have waived the right where there has been no
participation in, or advancement of, the litigation process.
Id. at 180. However, the Court stated that “[w]e do hold . . . 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. at
181.
¶16. Shanks admits that Kimball Glassco and Richardson timely raised the statute-of-
limitations defense on May 12, 2008. The trial court found that they had waived the defense
8
by failing to pursue it by timely noticing a hearing on the motion to dismiss. The record reveals
an approximately eleven-month delay during which nothing occurred of record in the case.
During this time, Kimball Glassco and Richardson requested that Shanks propose dates for a
hearing on the motion to dismiss. Activity of record resumed on April 6, 2009, when Shanks
served discovery requests on the defendants. At that point, the defendants promptly requested
that Shanks propose hearing dates. Upon receiving no response to two requests for proposed
hearing dates, the defendants responded to the discovery requests a few days after the thirty-day
deadline for discovery responses had passed. See M.R.C.P. 33(b)(3), 34(b), 36. Finally, the
parties agreed on a hearing date for the motion to dismiss.
¶17. The facts in this case do not indicate that Kimball Glassco and Richardson waived their
MTCA defenses. Although there was an approximately eleven-month delay in the case, during
the delay no party took any action to advance the litigation. During the delay, Kimball Glassco
and Richardson pursued their affirmative defense by informing Shanks of their intent to seek
a hearing on the motion to dismiss. When Shanks resumed activity in the case by filing
discovery, Kimball Glassco and Richardson immediately resumed their effort to secure
proposed hearing dates for the motion to dismiss. Although Kimball Glassco and Richardson
responded to the discovery requests, they were required to do so by the Rules of Civil
Procedure, and they simultaneously sought opposing counsel’s agreement on proposed hearing
dates on the motion to dismiss. The record shows that Kimball Glassco and Richardson acted
reasonably in pursuing the statute-of-limitations defense and that their conduct did not operate
as a waiver.
B. Equitable Estoppel
9
¶18. The trial court alternatively found that the MTCB’s letter equitably estopped Kimball
Glassco and Richardson from asserting their MTCA defenses. In the letter, the MTCB
informed Shanks that it had received the notice of claim which Shanks had directed to the
Mississippi Department of Mental Health. The MTCB stated that the Mississippi Department
of Mental Health had advised the MTCB that DCMHS was not a state agency or a department
or division of the Mississippi Department of Mental Health. The MTCB stated that, for this
reason, it was unable to consider the claim. The trial court held that Shanks detrimentally had
relied upon this letter in concluding that DCMHS was not a governmental entity covered by the
MTCA, and in waiting to sue Kimball Glassco and Richardson until after the expiration of the
one-year statute of limitations under the MTCA.
¶19. Kimball Glassco and Richardson argue that the trial court’s ruling was error because the
elements of equitable estoppel were not met. Equitable estoppel is generally defined as “the
principle by which a party is precluded from denying any material fact, induced by his words
or conduct upon which a person relied, whereby the person changed his position in such a way
that injury would be suffered if such denial or contrary assertion was allowed.” Simmons
Housing, Inc. v. Shelton, 36 So. 3d 1283, 1287 (Miss. 2010) (quotation omitted). Because
equitable estoppel is an extraordinary remedy, it is one that should be applied with caution. Id.
“Inequitable or fraudulent conduct must be established to apply the doctrine of equitable
estoppel to a statute of limitations,” including the statute of limitations under the MTCA.
Trosclair v. Miss. Dep’t of Transp., 757 So. 2d 178, 181 (Miss. 2000).
¶20. For the doctrine of equitable estoppel to apply, the plaintiff must have relied on a
misrepresentation by the defendant and not on a misrepresentation by some other individual or
10
entity. For example, in Trosclair, this Court found that the Mississippi Department of
Transportation (MDOT) was equitably estopped from asserting the MTCA statute of limitations
because it erroneously had informed the plaintiff that certain roadwork had been performed by
a private entity, when, in fact, it had been performed by MDOT. Id. Assuming for the sake of
argument that Shanks can establish that the MTCB letter contained a misrepresentation,
Shanks’s allegation is that it was the MTCB, not Kimball Glassco, Richardson, or her employer,
DCMHS, that erroneously informed Shanks that DCMHS was a nongovernmental entity. And,
according to the letter, it was the Mississippi Department of Mental Health, not Kimball
Glassco, DCMHS, or Richardson that had provided the MTCB with that alleged
misinformation. There was no showing of inequitable conduct on behalf of Kimball Glassco
or Richardson. We find that no action by Kimball Glassco or Richardson reasonably could have
induced Shanks to believe Kimball Glassco and Richardson were not entitled to the privileges
and immunities of the MTCA. The trial court erred by finding that the doctrine of equitable
estoppel prevented Kimball Glassco and Richardson from asserting the MTCA statute of
limitations.
II. WHETHER THIS MATTER SHOULD BE REMANDED FOR A
DETERMINATION OF LOIS’S COMPETENCY.
¶21. Before the briefing was completed, Shanks filed a motion to remand for a determination
of unsoundness of mind concerning Lois. In support of the motion, Shanks filed copies of a
1999 court order committing Lois to the Mississippi State Hospital, medical records, and a 2000
court order for continued treatment through outpatient commitment. In the motion, Shanks
argues that a determination of unsoundness of mind is required because, if Lois was under a
11
disability on the date of her accident on April 15, 2005, then the one-year statute of limitations
under the MTCA would not begin to run until the removal of the disability. Mississippi Code
Section 11-46-11(4) provides:
From and after April 1, 1993, if any person entitled to bring any action
under this chapter shall, at the time at which the cause of action accrued, be under
the disability of infancy or unsoundness of mind, he may bring the action within
the time allowed in this section after his disability shall be removed as provided
by law. The savings in favor of persons under disability of unsoundness of mind
shall never extend longer than twenty-one (21) years.
Miss. Code Ann. § 11-46-11(4) (Rev. 2002). To invoke this statute, the claimant need not show
a formal adjudication of incompetency, but may “present alternative evidence to prove that he
lacked the requisite understanding for handling his legal affairs.” Rockwell v. Preferred Risk
Mut. Ins. Co., 710 So. 2d 388 (Miss. 1998).
¶22. We find that Shanks’s motion is not well-taken. First, Shanks did not request a
determination of unsoundness of mind from the trial court; issues not raised in the trial court
are barred from consideration at the appellate level. Town of Terry v. Smith, 48 So. 3d 507,
509 (Miss. 2010). Second, because Shanks brought this action on behalf of Lois, and Lois is
not the plaintiff in this case, Lois’s competence to assert her rights in this lawsuit is not at
issue. See U.S. Fid. & Guar. Co. v. Conservatorship of Melson, 809 So. 2d 647, 654 (Miss.
2002). Shanks’s authority to assert Lois’s rights in this lawsuit has never been questioned. We
deny Shanks’s motion to remand for a determination of unsoundness of mind.
CONCLUSION
¶23. We hold that the trial court erred by finding that waiver and estoppel barred Kimball
Glassco and Richardson from asserting the statute of limitations under the MTCA. Shanks
12
filed the complaint after the expiration of the one-year statute of limitations. Therefore, we
reverse the denial of the motion to dismiss, and render a judgment in favor of Kimball Glassco
and Richardson.
¶24. REVERSED AND RENDERED.
WALLER, C.J., RANDOLPH, PIERCE AND KING, JJ., CONCUR. KITCHENS,
J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED
BY CARLSON, P.J., AND LAMAR, J. DICKINSON, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION. LAMAR, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION.
KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:
¶25. While I agree that the doctrine of equitable estoppel4 is not applicable in this case, I
respectfully disagree with the majority’s reasoning. The majority finds that Kimball Glassco
and Richardson are not equitably estopped from asserting the Mississippi Tort Claims Act’s
(MTCA’s) one-year statute of limitations because it was the Mississippi Tort Claims Board, and
not Kimball Glassco or Richardson, that made the alleged misrepresentation. However, the
doctrine of equitable estoppel does not apply, because the board in fact never represented to the
plaintiff that Delta Community Mental Health Service (DCMHS) was not covered by the
Mississippi Tort Claims Act (MTCA).
¶26. The Tort Claims Fund was established in accordance with Mississippi Code Section 11-
46-17, and distinguishes between “governmental entit[ies]” and “political subdivisions.”
Subsection (1) provides that “each governmental entity other than political subdivisions shall
participate in a comprehensive plan of self-insurance and/or one or more policies of liability
4
In his brief, the plaintiff does not address this issue, although he did raise it in the trial court.
13
insurance administered by the Department of Finance and Administration,” while subsection
(3) requires “political subdivisions” to obtain insurance or establish insurance reserves on their
own. Miss. Code Ann. § 11-46-17 (Rev. 2002) (emphasis added). “Political subdivision” is
defined as “any body politic or body corporate other than the state responsible for governmental
activities only in geographic areas smaller than the state, including but not limited to any
county, municipality, school district, community hospital . . . , airport authority, or other
instrumentality thereof . . . .” Miss. Code Ann. § 11-46-1(i) (Rev. 2002). Thus, the state has
its own claim fund separate and apart from those of its “political subdivisions,” and the
Mississippi Tort Claims Board is vested with the authority to oversee and administer this fund.
Miss. Code Ann. § 11-46-19 (Rev. 2002). While the board may “review and approve or reject
any plan of liability insurance or self-insurance reserves proposed or provided by political
subdivisions,” it does not assign claims to attorneys or purchase insurance policies for the
“political subdivisions.” Miss. Code Ann. § 11-46-19 (d),(h),(l) (Rev. 2002). See Maj. Op. n.1.
¶27. The letter of July 28, 2006, from the MTCB simply stated that DCMHS was not covered
by the state fund under Section 11-46-17(1); it did not foreclose, or even speak to, the question
of whether DCMHS was a “governmental entity” entitled to immunity under Mississippi Code
Section 11-46-11. The text of the letter, in its entirety, stated:
This will acknowledge receipt of your notice of claim letter directed to the
Mississippi Department of Mental Health concerning the above referenced
matter.
We have been in contact with the Mississippi Department of Mental Health
concerning this matter and advised that Delta Community Mental Health Service
is not a state agency nor is it a department or division of the Mississippi
Department of Mental Health.
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For these reasons, we will unfortunately be unable to consider this claim. We
regret we will be unable to assist you or your client any further in this respect.
The board was merely notifying the plaintiff that it would not be handling the claim, but it never
said that DCMHS was not entitled to the protections of the MTCA.5 Therefore, the plaintiff
cannot rely on the doctrine of equitable estoppel because the board did not make any
misrepresentation to the plaintiff. For these reasons, I respectfully concur in result only.
CARLSON, P.J., AND LAMAR, J., JOIN THIS OPINION.
DICKINSON, PRESIDING JUSTICE, DISSENTING:
¶28. The majority’s claim that we employ a de novo standard of review is misleading. While
we review de novo the grant or denial of a motion to dismiss, the real issue before this Court
is whether Kimball Glassco and Richardson waived their Mississippi Tort Claims Act (MTCA)
defenses, and we review waiver issues under an abuse-of-discretion standard.6
¶29. Kimball Glassco and Richardson raised their MTCA defenses on May 12, 2008, but
waited thirteen months to set them for hearing. The trial judge held the defenses were waived.7
Because the majority holds that the trial judge abused his discretion, I must dissent.
¶30. The majority’s sole basis for reversing the trial judge is some alleged correspondence
5
The majority is correct that “a regional mental health commission is a state agency,” for
immunity purposes, but regional mental health commissions are created, funded, and governed at
the county level. See Miss. Code Ann. §§ 41-19-31 to 41-19-43 (Rev. 2009). Thus, DCMHS is a
“political subdivision” that does not pay into the state Tort Claims Fund. Miss. Code Ann. § 11-46-
17 (Rev. 2002).
6
See Miss. Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006).
7
See id. at 180 (defendant must pursue dispositive affirmative defense); Estate of Grimes
v. Warrington, 982 So. 2d 365, 370 (Miss. 2008) (defendant must plead dispositive affirmative
defense, bring it to court’s attention, and request hearing).
15
from defense counsel to counsel for the plaintiff. I find it ironic that, in making his ruling, the
trial judge referred to correspondence not found in the record; and the majority now relies on
that same correspondence to reverse him, even though the trial judge had the opportunity to read
the correspondence, and the majority didn’t. Because this alleged correspondence is not in the
record, I find it highly improper for us even to consider it.
¶31. But even if the correspondence was in the record in exactly the same form as recited
within the trial judge’s order, I would still hold the trial judge did not abuse his discretion in
holding the defenses were waived. My reasons are these:
(1) The June 27, 2008, letter neither mentioned nor requested a hearing on the
defenses;
(2) For seven months following the June 27 letter, defense counsel did
nothing whatsoever to advance the defenses.
(3) In correspondence to the plaintiff’s counsel dated January 13, 2009, the
defendants still did not request a hearing date for the defense.
(4) On April 6, 2009, the plaintiff served discovery on the defendants,
including interrogatories, requests for production of documents, and
requests for admission.
(5) On May 14 and May 22, 2009, the defendants served discovery responses
on Shanks, thereby participating in the litigation. Still, no notice of a
hearing on their affirmative defenses.
(6) It was not until April 8, 2009 – eleven months after the defenses were
asserted – that counsel for the defendants first provided available hearing
dates to plaintiff’s counsel.
(7) Then, the defendants waited another two months to set the matter for
hearing.
¶32. The question is not whether the justices on this Court think these facts amount to a
waiver; the question is whether the trial judge – having found a waiver – abused his discretion.
16
I do not believe the record before us justifies a finding that he did. I would affirm the trial
judge’s holding that the defendants waived their MTCA defenses. Because the majority holds
otherwise, I respectfully dissent.
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