affirmative defense in Mississippi

2025Dynasty and Radco rely on Horton to support the argument that waiver of a party’s affirmative defense must be decided by the trial court on a “case by case basis.” Horton, 926 So. 2d at 181 .

2023It is true that a defendant may waive an affirmative defense by a “failure to timely and reasonably raise and pursue the enforcement of” the affirmative defense, “coupled with active participation in the litigation process . . . .” Clement, 238 So. 3d at 1145 (internal quotation mark omitted) (quoting MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006)).

2024The Supreme Court held that it 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.” Pruitt, 349 So. 3d 731 (¶5) (emphasis added) (quoting Hutzel v. City of Jackson, 33 So. 3d 1116, 1119 (¶12) (Miss. 2010)). ¶43.

2024One line, beginning with Hutzel, follows the reasoning that “absent a reasonable explanation, failure to plead an affirmative defense according to Rule 8(c) will result in a waiver of that defense.” Hutzel v. City of Jackson, 33 So. 3d 1116, 1120 (Miss. 2010).10 The other line, relying on the dicta in Horton, holds 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 s

2022Throwing a volume of the Mississippi Code and saying “catch” does not suffice. ¶8. “[T]his Court consistently has held that, absent a reasonable explanation, failure to plead an affirmative defense according to Rule 8(c) will result in a waiver of that defense.” Hutzel, 33 So. 3d at 1120 ; see also Est. of Grimes v. Warrington, 982 So. 2d 365 (Miss. 2008); E.

2021Grimes v. Warrington, 982 So. 2d 365, 370 (Miss. 2008) (relying on Horton to hold defendant’s unreasonable delay pursuing MTCA-immunity defense waived 18 this affirmative defense); E.

2022“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)).

2022Therefore, “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) (citing Pass Termite & Pest Control, Inc. v. Walker, 904 So. 2d 1030, 1033 (Miss. 2004)).

2004In Wholey v. Cal-Maine Foods, Inc. , 530 So.2d 136 (Miss. 1988), the Mississippi Supreme Court held that the affirmative defense of res judicata must be affirmatively pleaded " and may not be raised on motion to dismiss unless allegations of a prior pleading in the case demonstrates [sic] its existence. " Id. at 139 (emphasis added).

2004In Wholey v. Cal-Maine Foods, Inc. , 530 So.2d 136 (Miss. 1988), the Mississippi Supreme Court held that the affirmative defense of res judicata must be affirmatively pleaded " and may not be raised on motion to dismiss unless allegations of a prior pleading in the case demonstrates [sic] its existence. " Id. at 139 (emphasis added).

2013“A plea of the statutes of limitations is an affirmative defense[,] and carrying the burden of proof lies on the party who relies upon that defense.” Graham v. Pugh, 417 So.2d 536, 540-41 (Miss.1982). ¶ 14.

2007See Philley v. Toler, 239 Miss. 347, 362 , 123 So.2d 223, 229 (1960) (in an open-account case, party has "the burden of proof to show payment under [a] plea of payment," because "[t]he burden of proving payment is upon him who asserts it"); compare Graham v. Pugh, 417 So.2d 536, 540-41 (Miss. 1982) ("A plea of the statute of limitations is an affirmative defense and carrying the burden of proof lies on the party who relies upon that defense") (citing Philley ). ¶ 35.

2021Warnock argues that “the minutes requirement falls under the defense of illegality and constitutes a matter of avoidance which must be specifically pled.” In describing the affirmative defense of illegality, our Supreme Court has stated that “[o]ur positive law declares some subjects off limits to parties who would contract.” Hertz, 567 So. 2d at 834 .

2019Indeed, it is specifically listed as an affirmative defense in Rule 8(c); see also Hertz Commercial Leasing Div. v. Morrison, 567 So. 2d 832, 835 (Miss. 1990) (“If he wishes to charge that the statute of frauds renders the contract unenforceable in law, he must so plead affirmatively.”).

2015See, e.g., Whaley v. Cal-Maine Foods, Inc., 530 So.2d 136, 138 (Miss.1988) (citing Bell v. First Columbus Nat’l Bank, 493 So.2d 964, 968 (Miss.1986)).

1994See Bell v. First Columbus Nat'l Bank, 493 So. 2d 964, 968 (Miss. 1986) (involving a party who attempted to raise an affirmative defense for the first time during the course of a trial and later on motion for judgment notwithstanding the verdict).

2024A trial court’s determination that a party did or did not “waive[] . . . an affirmative defense is subject to an abuse-of-discretion standard of review.” Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (¶13) (Miss. 2011). ¶12.

2024As the majority states above, “waiver . . . of an affirmative defense is subject to an abuse-of-discretion standard of review.” Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (¶13) (Miss. 2001).

2023Instead, as this Court has long held, “[w]hen a defendant attempts to prove an affirmative defense . . . it is his burden to prove that such circumstances exist so as to substantiate such a defense.” Stodghill v. State, 892 So. 2d 236, 239 (Miss. 2005) (citing Bush v. State, 585 So. 2d 1262, 1264 (Miss. 1991)).

2017In Stodghill, 892 So.2d at 238-40 (¶¶ 7, 12), we affirmed a trial court’s determination that the defendant could not use the affirmative defense of necessity after he drove under the influence of alcohol to take a sick friend to the hospital, as there were “reasonable alternatives” available to him.

2009See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So.2d 358, 361 (Miss.2007) ("The burden of proving an affirmative defense lies upon the party who relies upon that defense." ( citing Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 927 (Miss.2006))). ¶ 76.

2009See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So.2d 358, 361 (Miss.2007) (“The burden of proving an affirmative defense lies upon the party who relies upon that defense.” (citing Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 927 (Miss.2006))). ¶ 76.

2009Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (citing City of Ellisville v. Richardson, 913 So.2d 973, 975 (Miss.2005); Lumberman’s Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712 (Miss.1998); Dixon v. Singing River Hosp.

2009Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (citing City of Ellisville v. Richardson, 913 So.2d 973, 975 (Miss.2005); Lumberman's Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712 (Miss.1998); Dixon v. Singing River Hosp.

2000This Court, in King v. State, 530 So.2d 1356, 1358-59 (Miss.1988), stated: Entrapment is an affirmative defense.

2000This Court, in King v. State , 530 So.2d 1356 , 1358-59 (Miss. 1988), stated: Entrapment is an affirmative defense.

2023Instead, as this Court has long held, “[w]hen a defendant attempts to prove an affirmative defense . . . it is his burden to prove that such circumstances exist so as to substantiate such a defense.” Stodghill v. State, 892 So. 2d 236, 239 (Miss. 2005) (citing Bush v. State, 585 So. 2d 1262, 1264 (Miss. 1991)).

2016Entrapment is- an affirmative defense which must be proved by the defendant, and “[t]he burden of.proof does not shift to the State to show the predisposition for committing the crime until.the defendant has made out a prima facie case of entrapment.” Bush v. State, 585 So.2d 1262, 1264 (Miss.1991).

2004This Court has held that "[i]t is fundamental that the burden of proof of affirmative defenses rests squarely on the shoulders of the one who expects to avoid liability by that defense." Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1009 (Miss.1994). ¶ 48.

2002This Court has held that "[i]t is fundamental that the burden of proof of affirmative defenses rests squarely on the shoulders of the one who expects to avoid liability by that defense." Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1009 (Miss.1994). ¶21.

1985Generally speaking, if the insurer has at trial denied liability on the policy — asserted lack of coverage, an affirmative defense, or whatever — and if the state of the evidence after all parties have rested is such that under our familiar rules the factual issue may not be taken from the jury, see, e.g., Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975), then the plaintiff insured is not entitled to a peremptory instruction on the underlying policy claim and as a matter of law the insurance company becomes insulated from a bad faith refusal claim.

1984A. Generally speaking, if the insurer has at trial denied liability on the policy — asserted lack of coverage, an affirmative defense, or whatever — and if the state of the evidence after all parties have rested is such that under our familiar rules the factual issue may not be taken from the jury, see e.g., Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975), then the plaintiff insured is not entitled to a peremptory instruction on the underlying policy claim and as a matter of law the insurance company becomes insulated from a bad faith refusal claim.

2024“The waiver . . . of an affirmative defense is subject to an abuse-of-discretion standard of review.” Est. of Puckett v. Clement, 238 So. 3d 1139, 1144 (¶9) (Miss. 2018) (quoting Kinsey, 78 So. 3d at 306 (¶13)).

2024“The waiver of an affirmative defense is subject to an abuse-of-discretion standard of review.” Est. of Puckett v. Clement, 238 So. 3d 1139, 1144 (¶9) (Miss. 2018) (quoting Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (¶13) (Miss. 2011)). “[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.” Id. at 1145 (¶10) (quoting MS Credit Ctr.

2021However, because we conclude that the City did not waive the minutes requirement, it is unnecessary to address the question whether a public entity can waive the requirement. 9 In addition, “[t]he burden of proving an affirmative defense lies upon the party who relies upon that defense.” Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 358, 361 (¶11) (Miss. 2007). ¶18.

2009See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So.2d 358, 361 (Miss.2007) (“The burden of proving an affirmative defense lies upon the party who relies upon that defense.” (citing Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 927 (Miss.2006))). ¶ 76.

2021See, e.g., Hinton v. Sportsman’s Guide, Inc., 285 So. 3d 142 , 150 (Miss. 2019) (applying Horton waiver analysis to the affirmative defense of innocent-seller immunity); Hanco Corp. v. Goldman, 178 So. 3d 709, 712-13 (Miss. 2015) (holding that, under the Horton Doctrine, an employer waived its exclusive- remedy affirmative defense under the Mississippi Workers’ Compensation Act); Meadows v. Blake, 36 So. 3d 1225, 1232-33 (Miss. 2010) (holding that, based on Horton, a medical- malpractice defendant waived the defense of the plaintiff’s failure to comply with statutory pleadings requirements); S

2021Id.; see, e.g., Hinton v. Sportsman’s Guide Inc., 285 So. 3d 142 , 150 (¶15) (Miss. 2019) (applying waiver analysis to the affirmative defense of innocent-seller immunity); Meadows v. Blake, 36 So. 3d 1225, 1232-22 (¶15) (Miss. 2010) (Applying Horton, a medical-malpractice defendant waived the 6 defense of the plaintiff’s failure to comply with statutory pleadings requirements.); Spann v. Diaz, 987 So. 2d 443, 448 (¶15) (Miss. 2008) (applying Horton waiver analysis to the affirmative defense of the running of the statute of limitations); E.

2016“No one is liable for an injury proximately caused by an act of God[.]” City of Jackson v. Brummett, 224 Miss. 501 , 80 So.2d 827, 829 (1955).

2016“No one is liable for an injury proximately caused by an act of God[.]” City of Jackson v. Brummett, 224 Miss. 501 , 80 So.2d 827, 829 (1955).

2009Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (citing City of Ellisville v. Richardson, 913 So.2d 973, 975 (Miss.2005); Lumberman’s Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712 (Miss.1998); Dixon v. Singing River Hosp.

2009Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (citing City of Ellisville v. Richardson, 913 So.2d 973, 975 (Miss.2005); Lumberman's Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712 (Miss.1998); Dixon v. Singing River Hosp.

2007See Philley v. Toler, 239 Miss. 347, 362 , 123 So.2d 223, 229 (1960) (in an open-account case, party has "the burden of proof to show payment under [a] plea of payment," because "[t]he burden of proving payment is upon him who asserts it"); compare Graham v. Pugh, 417 So.2d 536, 540-41 (Miss. 1982) ("A plea of the statute of limitations is an affirmative defense and carrying the burden of proof lies on the party who relies upon that defense") (citing Philley ). ¶ 35.

2007See Philley v. Toler, 239 Miss. 347, 362 , 123 So.2d 223, 229 (1960) (in an open-account case, party has "the burden of proof to show payment under [a] plea of payment," because "[t]he burden of proving payment is upon him who asserts it"); compare Graham v. Pugh, 417 So.2d 536, 540-41 (Miss. 1982) ("A plea of the statute of limitations is an affirmative defense and carrying the burden of proof lies on the party who relies upon that defense") (citing Philley ). ¶ 35.

2002Wall v. Swilley, 562 So.2d 1252, 1258 (Miss. 1990).

1999Wall v. Swilley, 562 So.2d 1252, 1258 (Miss. 1990).

2007In Wicker , we relied on Memphis Hardwood in stating that a real estate purchaser's claim to be a bona fide purchaser for value without notice is "an affirmative defense and must be sustained by competent proof." Id. at 992 (¶ 27) (quoting Memphis Hardwood, 771 So.2d at 933 (¶ 32)). ¶ 19.

2007In Wicker , we relied on Memphis Hardwood in stating that a real estate purchaser’s claim to be a bona fide purchaser for value without notice is “an affirmative defense and must be sustained by competent proof.” Id. at 992 (¶ 27) (quoting Memphis Hardwood, 771 So.2d at 933 (¶ 32)). ¶ 19.

2008Hopson v. State, 625 So.2d 395, 399 (Miss.1993).

2001Id. (citing Hopson v. State, 625 So.2d 395, 399-400 (Miss.1993)).

2023Additionally, “[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.” Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So. 3d 941, 945 (Miss. 2011) (internal quotation marks omitted) (quoting MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006)).

2018See id. 15 majority’s statement in footnote 7 that The Door Shop failed to raise Mississippi Code Section 15-1-5 as an affirmative defense.

2022Lemon Drop Props., LLC v. Pass Marianne, LLC, 73 So. 3d 1131, 1135 (Miss. 2011) . . . .

2013Lemon Drop Props., LLC v. Pass Marianne, LLC, 73 So.3d 1131, 1135 (Miss.2011) (emphasis added).

2000Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992) ("The statute of limitations in civil cases is an affirmative defense which is deemed waived if not timely asserted."); Wholey v. Cal-Maine Foods, Inc., 530 So.2d 136, 138 (Miss.1988).

1997Conerly v. State, 607 So. 2d 1153, 1156 (Miss. 1992) ("The statute of limitations in civil cases is an affirmative defense which is deemed waived if not timely asserted."); Wholey v. Cal-Maine Foods, Inc., 530 So. 2d 136, 138 (Miss. 1988).