Pass Termite and Pest Control, Inc. v. Walker
| Docket Number: | 2002-IA-01081-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-09-2004 Opinion Author: Carlson, J. Holding: AFFIRMED AND REMANDED |
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| Additional Case Information: |
Topic: Contract - Arbitration - Waiver - M.R.C.P. 8(c) Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves and Randolph, JJ. Procedural History: Bench Trial Nature of the Case: Motion to Compel Arbitration |
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| Trial Court: |
Date of Trial Judgment: 12-04-2001 Appealed from: Lafayette County Circuit Court Judge: Henry L. Lackey Disposition: The circuit judge denied a motion to compel arbitration. Case Number: L01-041 |
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| Party Name: | Attorney Name: | |||
| Appellant: | PASS TERMITE AND PEST CONTROL, INC. |
R. BRADLEY BEST |
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| Appellee: | JOE P. WALKER, JR. AND CAROLYN FAYE WALKER | DAVID D. O'DONNELL CLAYTON O’DONNELL WALSH |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Arbitration - Waiver - M.R.C.P. 8(c) |
| Summary of the Facts: | When Joe Walker and Carolyn Walker purchased a home, Pass Termite and Pest Control, Inc. was hired by the Walkers to perform a termite inspection. The Walkers filed a claim against Pass asserting claims based on fraud and breach of contract and alleging that they relied to their detriment on erroneous reports produced by Pass. Pass filed its answer to the complaint, but failed to affirmatively plead arbitration as a defense. In addition, Pass demanded a jury trial and a judgment in its favor. After the Walkers responded to discovery, Pass filed a Motion to Compel Arbitration. The Walkers argued that Pass had waived its right to claim any entitlement to arbitration. The court denied the motion compel arbitration and certified this case for an interlocutory appeal. |
| Summary of Opinion Analysis: | Both termite reports containing identical arbitration clauses were attached to the complaint which was filed on February 14, 2001. Once Pass was served with a copy of the complaint and summons on February 16, 2001, Pass was aware of the availability of the defense of arbitration. Instead of asserting this defense, Pass answered the complaint, demanded a jury trial, and invoked the available discovery procedures. When Pass finally decided to file a motion to compel arbitration, some 237 days after it was served with a copy of the complaint and summons, it filed the motion to compel arbitration without seeking leave from the trial court to amend its original answer. The general rule under M.R.C.P. 8(c) is that affirmative defenses must be raised in a party’s answer. In Mississippi, a party waives the right to arbitrate when it actively participates in a lawsuit or takes other action inconsistent with the right to arbitration. Taking advantage of pretrial litigation such as answers, counterclaims, motions, requests, and discovery obviates the right to arbitration. Here, Pass not only failed to file a motion to compel arbitration and failed in its answer to allege the affirmative defense of arbitration, it went so far in its answer as to request that the dispute be tried before a jury. A jury trial is characteristic of the judicial process, not arbitration. That request is inconsistent with asserting a right to arbitration. This coupled with the fact that Pass invoked the discovery process indicates its intent to forgo its right to arbitration. When a party, with full knowledge of the existence of an arbitration clause in the contract which is the subject matter of the litigation, makes a conscious decision to proceed with responding to the lawsuit, demanding a jury trial, and invoking discovery only to thereafter invoke the arbitration clause, that party does so at its own peril, and prejudice to the non-moving party will be presumed for failure to comply with the provisions of M.R.C.P. 8(c). |
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