Loggers, L.L.C. v. 1 Up Technologies, L.L.C.


<- Return to Search Results


Docket Number: 2009-CA-01471-SCT
Supreme Court: Opinion Link
Opinion Date: 01-06-2011
Opinion Author: Graves, P.J.
Holding: Affirmed.
Additional Case Information: Topic: Contract - Affirmative defense - Section 79-29-1007(1) - M.R.C.P. 12(b)(6)
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Kitchens, Chandler and Pierce, JJ. Dickinson, J., Concurs in Part and in Result Without Separate Written Opinion. Lamar, J., Concurs in Part and in Result Without Written Opinion.
Concurs in Result Only: Randolph, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - CONTRACT
Trial Court: Date of Trial Judgment: 07-31-2009
Appealed from: Pearl River Circuit Court
Judge: R. I. Prichard, III
Disposition: The special master took the motion under advisement, and Loggers proceeded with its case. On July 9, 2009, the special master issued her report, wherein she found that Loggers had waived its right to assert the affirmative defense under Mississippi Code Section 79-29-1007(1) by failing to raise it in its answer and by raising it for the first time at trial. Loggers objected to the special maste r’s report. However, the special master’s report was adopted by the Circuit Court of Pearl River County, which entered final judgment on August 5, 2009, in favor of 1 Up in the amount of $10,979.19 plus court costs.
Case Number: 2007-0483-P
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Loggers, L.L.C.




 NATHAN S. FARMER



  
  • Appellant #1 Brief
    		•
    Appellee: 1 Up Technologies, L.L.C. MICHAEL CHAD MOORE  
    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.
    Topic: Contract - Affirmative defense - Section 79-29-1007(1) - M.R.C.P. 12(b)(6)
    Summary of the Facts: Loggers, LLC, and Gary Troescher entered into an oral contract with 1 Up regarding equipment and services for Loggers’ computer gaming business in Pearl River County. A dispute arose, and 1 Up ultimately filed suit against Loggers for $8,783.33 owed on the contract and $2,195.83 in attorney’s fees. 1 Up obtained a default judgment against Loggers, but the default judgment later was set aside by the trial court. Loggers filed its Amended Combined Answer, Affirmative Defenses and Counter-Claim(s) of the Defendants, which contained various affirmative defenses. At the close of 1 Up’s case-in-chief, Loggers moved for dismissal under M.R.C.P. 12(b)(6) and 41(b) on the ground that 1 Up was barred from bringing suit under section 79-29-1007(1). The special master found that Loggers had waived its right to assert the affirmative defense under section 79-29-1007(1) by failing to raise it in its answer and by raising it for the first time at trial. Loggers objected to the special master’s report. However, the special master’s report was adopted by the circuit court which entered final judgment in favor of 1 Up in the amount of $10,979.19 plus court costs. Loggers appeals.
    Summary of Opinion Analysis: Loggers argues that it preserved its right to the affirmative defense that 1 Up is barred from filing or maintaining this action pursuant to section 79-29-1007(1) by the inclusion of general language from M.R.C.P. 12(b)(6) in its response. The special master found that 1 Up was not registered to do business in Mississippi and was unable to bring a lawsuit pursuant to section 79-29-1007(1). But the special master also found that this assertion was an affirmative defense that should have been raised by Loggers prior to trial. The complaint in this matter was filed on October 10, 2007. The trial occurred more than a year later on February 10, 2009. The record in this matter indicates that Loggers actively participated in the litigation. Loggers cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court