Kimball Glassco Residential Center, Inc. v. Shanks


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Docket Number: 2009-IA-01617-SCT
Supreme Court: Opinion Link
Opinion Date: 06-09-2011
Opinion Author: Chandler, J.
Holding: Reversed and rendered.
Additional Case Information: Topic: Personal injury - Tort Claims Act - Statute of limitations - Waiver - Equitable estoppel - Motion to remand - Section 11-46-11(4)
Judge(s) Concurring: Waller, C.J., Randolph, Pierce and King, JJ.
Dissenting Author : Dickinson, P.J. With Separate Written Opinion
Concur in Part, Concur in Result 1: Lamar, J. Without Separate Written Opinion
Concurs in Result Only: Kitchens, J. With Separate Written Opinion Joined by Carlson, P.J., and Lamar, J.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - TORTS - OTHER
Trial Court: Date of Trial Judgment: 09-15-2009
Appealed from: Bolivar County Circuit Court
Judge: Al Smith
Disposition: The trial court denied the motion to dismiss, holding that the defendants had waived their statute-of-limitations defense by failing to timely raise and pursue the defense while actively participating in the litigation. The trial court held alternatively that the defendants were estopped from asserting MTCA's one-year statute of limitations based on a misrepresentation by the Mississippi Tort Claims Board that DCMHS was not a state entity.
Case Number: 2008-0022
Note: Appellee's Motion to Strike is granted. See opinion of this Court handed down this date at footnote 3. Appellee's Motion to Remand for a Determination of Unsoundness of Mind is denied. See opinion of this Court handed down this date at paragraph 22.
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Kimball Glassco Residential Center, Inc. and Vera Richardson




 WADE G. MANOR, JAMIE LEIGH HEARD



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Terrance Shanks as Next of Kin of Lois Shanks ELLIS TURNAGE  
    Synopsis provided by:

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    Topic: Personal injury - Tort Claims Act - Statute of limitations - Waiver - Equitable estoppel - Motion to remand - Section 11-46-11(4)
    Summary of the Facts: Terrance Shanks filed a personal-injury action on behalf of his mother, Lois Shanks, against Kimball Glassco Residential Center, Inc. and Vera Richardson. Shanks alleged that Lois was injured when Richardson lost control of a van she was driving, in which Lois was a passenger. Richardson filed a motion to dismiss, asserting that she was employed by Delta Community Mental Health Service, not Kimball Glassco, and that the action was barred by the one-year statute of limitations under the Tort Claims Act. Kimball Glassco’s answer asserted that Kimball Glassco is a state entity entitled to the protections of the MTCA. The trial court denied the motion to dismiss. The Supreme Court granted an interlocutory appeal.
    Summary of Opinion Analysis: Issue 1: Waiver Kimball Glassco and Richardson argue that they are entitled to the privileges and immunities of the MTCA. The trial court implicitly held that Kimball Glassco and Richardson were covered by the MTCA by holding that they had waived their MTCA defenses or were estopped from asserting them. On appeal, Shanks does not dispute that Kimball Glassco and Richardson are covered by the MTCA. Rather, Shanks argues that, as found by the trial court, Kimball Glassco and Richardson either waived their MTCA defenses, or they are estopped from asserting them by the MTCB letter. 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. To pursue an affirmative defense means to plead it, bring it to the court’s attention, and request a hearing. Because MTCA immunity is considered to be an affirmative defense, a governmental entity’s immunity under the MTCA is subject to waiver. In his brief, Shanks makes several admissions that both Kimball Glassco and Richardson raised their MTCA defenses on May 12, 2008. After the defendants had asserted their statute-of-limitations defense, the case lay dormant on the docket for approximately eleven months, from May 12, 2008, until April 6, 2009. During this dormancy period, on January 13, 2009, Kimball Glassco and Richardson asserted their statute-of-limitations defense in correspondence to Shanks. Approximately three months later, on April 6, 2009, Shanks served discovery on the defendants. Two days later, Kimball Glassco and Richardson proposed available hearing dates for the motion to dismiss. When they received no response from Shanks, they again requested proposed hearing dates on May 12, 2009. They responded to Shanks’s discovery requests on May 14 and May 22. On May 21, 2009, Shanks responded with proposed hearing dates. On June 4, 2009, both parties’ counsel agreed to a hearing date. Kimball Glassco noticed the hearing on the motion to dismiss on June 8, 2009, and it occurred on August 19, 2009. The facts in this case do not indicate that Kimball Glassco and Richardson waived their MTCA defenses. The record shows that Kimball Glassco and Richardson acted reasonably in pursuing the statute-of-limitations defense and that their conduct did not operate as a waiver. Issue 2: Equitable estoppel The trial court alternatively found that the MTCB’s letter equitably estopped Kimball Glassco and Richardson from asserting their MTCA defenses. In the letter, the MTCB informed Shanks that it had received the notice of claim which Shanks had directed to the Mississippi Department of Mental Health. The MTCB stated that the Mississippi Department of Mental Health had advised the MTCB that DCMHS was not a state agency or a department or division of the Mississippi Department of Mental Health. The MTCB stated that, for this reason, it was unable to consider the claim. The trial court held that Shanks detrimentally had relied upon this letter in concluding that DCMHS was not a governmental entity covered by the MTCA, and in waiting to sue Kimball Glassco and Richardson until after the expiration of the one-year statute of limitations under the MTCA. Equitable estoppel is generally defined as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed. For the doctrine of equitable estoppel to apply, the plaintiff must have relied on a misrepresentation by the defendant and not on a misrepresentation by some other individual or entity. Assuming for the sake of argument that Shanks can establish that the MTCB letter contained a misrepresentation, Shanks’s allegation is that it was the MTCB, not Kimball Glassco, Richardson, or her employer, DCMHS, that erroneously informed Shanks that DCMHS was a nongovernmental entity. And, according to the letter, it was the Mississippi Department of Mental Health, not Kimball Glassco, DCMHS, or Richardson that had provided the MTCB with that alleged misinformation. Thus, the trial court erred by finding that the doctrine of equitable estoppel prevented Kimball Glassco and Richardson from asserting the MTCA statute of limitations. Issue 3: Motion to remand Before the briefing was completed, Shanks filed a motion to remand for a determination of unsoundness of mind concerning Lois. In support of the motion, Shanks filed copies of a 1999 court order committing Lois to the Mississippi State Hospital, medical records, and a 2000 court order for continued treatment through outpatient commitment. Shanks argues that a determination of unsoundness of mind is required because, if Lois was under a disability on the date of her accident on April 15, 2005, then the one-year statute of limitations under the MTCA would not begin to run until the removal of the disability. To invoke section 11-46-11(4), the claimant need not show a formal adjudication of incompetency, but may present alternative evidence to prove that he lacked the requisite understanding for handling his legal affairs. Shanks’s motion is not well-taken. First, Shanks did not request a determination of unsoundness of mind from the trial court; issues not raised in the trial court are barred from consideration at the appellate level. Second, because Shanks brought this action on behalf of Lois, and Lois is not the plaintiff in this case, Lois’s competence to assert her rights in this lawsuit is not at issue.


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