avoidance or affirmative defense in Mississippi

2021Warnock argues that the minutes rule is an affirmative defense and that the City 8 waived the issue by failing to plead it in its answer.1 Rule (8)(c) of the Mississippi Rules of Civil Procedure provides that a party’s answer “shall set forth affirmatively” nineteen listed affirmative defenses “and any other matter constituting an avoidance or affirmative defense.” “[Our Supreme] 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 (¶1

2021See M.R.C.P. 8(c) (“[A] party shall set forth [in its answer] . . . any . . . matter constituting an avoidance or affirmative defense.”); Hutzel, 33 So. 3d at 1119 (¶12) (recognizing that Rule 8(c) is generally interpreted “to mean that . . . if a party fails to raise an affirmative defense in its original answer, the defense will be deemed waived”). ¶40.

2021Holcomb Dunbar claims the statement in its answer is a “judicial admission,” which is a “formal concession[] in [a] pleading[] or [a] stipulation[] by a party or counsel that [is] binding on the party making them.” Elliott v. AmeriGas Propane L.P., 249 So. 3d 389, 395 (¶25) (Miss. 2018).

2018“A defendant must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced.” Rogers, 521 F.3d at 385 (internal quotation marks omitted).

2018"A defendant must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced." Rogers , 521 F.3d at 385 (internal quotation marks omitted).

2014See also Charlot v. Henry, 45 So.3d 1237, 1246 (¶ 29) (Miss.Ct.App.2010).

2014Mississippi Rule of Civil Procedure 8(c) mandates that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively” certain specifically listed defenses as well as “any other matter constituting an avoidance or affirmative defense.” “Generally, if the defense is not specifically pleaded in the original answer, the defense is deemed waived.” Knight Prop., Inc. v. State Bank & Trust Co., 77 So.3d 491, 494 (¶ 10) (Miss.Ct.App.2011) (citing Hutzel, 33 So.3d at 1119 (¶ 12)).

2008(Emphasis added.) 5 participation in a lawsuit serves to waive affirmative defenses that otherwise would terminate the action.” Price v. Clark, 21 So. 2d 3d 509, 524 (Miss. 2009) (citing MS Credit Center, Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006)).

1997This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse." McCarty v. Kellum, 667 So.2d 1277 (Miss. 1995) (quoting Frank v. Dore, 635 So.2d 1369, 1375 (Miss. 1994)).