The Mississippi Supreme Court issued its first opinions for 2011 today, including an interesting opinion in Loggers, LLC v. 1 Up Technologies, LLC. Here is the Court’s opinion.
Justice Graves wrote the Court’s opinion.
The underlying case was a small breach of contract case in the Pearl River County Circuit Court. The case was tried before a special master.
At the close of plaintiff’s case-in-chief, defendant moved for a dismissal under Miss. R. Civ. P. 12(b)(6) and 41(b) on the ground that the plaintiff was barred from bringing the suit under Miss. Code Ann. 79–29–1007(1). The statute relates to a foreign limited liability company having to be registered in the state to assert a cause of action.
The special master ruled that the defendant waive the affirmative defense by failing to raise it in its answer and then raising it for the first time during trial. The Circuit Court adopted the special master’s report and added that a specific affirmative defense such as this cannot be raised by pleading rule 12(b)(6).
On appeal, defendant cited Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006) and another case. In Howard, the Court found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve an issue in a medical malpractice case. The Court rejected the argument, stating:
[defendant] cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later.
Chief Justice Waller and Justices Carlson, Kitchens, Chandler and Pierce concurred. Justice Randolph concurred in result only without separate opinion. Justices Dickinson and Lamar concurred in part and in result, without separate opinion.
My Take:
I really wish that the concurring Justices issued opinions. What is their problem with Justice Graves’ opinion?
But at least there is an apparent solid six justice majority (5 if you don’t count Graves due to expected departure to 5th Circuit) that defendants have to specifically plead and timely assert affirmative defenses. Howard kind of made the waiver law a joke. I consider this opinion to overrule Howard, but it does not clearly state that.
Cynics will say that this shows that different rules apply for doctors, since Howard was a medical malpractice case.
I’m going to miss some of the the flowery catch-all affirmative defenses I’ve noticed popping up in answers in the last couple of years.
For earlier posts on the waiver of affirmative defense issue, see here.