        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01079-COA

UNIVERSITY OF MISSISSIPPI MEDICAL                                          APPELLANT
CENTER

v.

KIM HAMPTON, INDIVIDUALLY AND ON                                            APPELLEE
BEHALF OF KIMRICK SMITH, DECEASED,
AND THE WRONGFUL DEATH
BENEFICIARIES OF KIMRICK SMITH

DATE OF JUDGMENT:                         07/15/2014
TRIAL JUDGE:                              HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  LANNY R. PACE
                                          EMILIE FISCHER WHITEHEAD
ATTORNEYS FOR APPELLEE:                   CRYSTAL WISE MARTIN
                                          SUZANNE GRIGGINS KEYS
                                          SAGE EGGER HARLESS
NATURE OF THE CASE:                       CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                  $500,000 JUDGMENT ENTERED IN FAVOR
                                          OF APPELLEES
DISPOSITION:                              REVERSED AND RENDERED - 10/11/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    The University of Mississippi Medical Center (UMC) appeals an adverse judgment

stemming from a wrongful-death action brought by Kim Hampton following the death of her

son, Kimrick Smith. UMC argues that the trial court erred in denying its pretrial motion for

summary judgment. Because Hampton filed her complaint outside of the one-year statute of
limitations, and because UMC did not waive its statute-of-limitations defense, we reverse and

render a judgment in favor of UMC.

                        FACTS AND PROCEEDINGS BELOW

¶2.    On October 30, 2010, Smith was stabbed in the torso in Marion County and airlifted

to UMC for emergency medical care. He was released on November 3, 2010. On November

8, 2010, Smith died after suddenly collapsing at home in Marion County. The parties agree

that Smith’s death was caused by blood leaking from a heart wound sustained in the stabbing.

The heart injury was not discovered during Smith’s treatment at UMC.

¶3.    On November 11 or 12, 2010, Hampton spoke to the doctor who performed the

autopsy, who informed her of the heart wound.1 During this same time period, a lawyer

informed Hampton that she could pursue a lawsuit against UMC. The parties agree that

November 12, 2010, is the latest possible discovery date by the plaintiff of her cause of

action and the start of the one-year statute of limitations.

¶4.    UMC received pre-suit notice of Hampton’s wrongful-death claim on November 7,

2011, in accordance with the provisions of Mississippi Code Annotated section 11-46-11

(Rev. 2012). The parties agree that on November 7, 2011, five days remained of the original

one-year limitations period. February 10, 2012, marked ninety-five days following UMC’s

receipt of notice of the claim. On February 28, 2012, UMC denied Hampton’s claim.

¶5.    Hampton filed a pro se complaint on May 29, 2012. The complaint did not allege how

or when Hampton became aware of her possible claim against UMC, including the fact that

       1
        The autopsy was conducted at the Mississippi state medical examiner’s office in
Jackson by Dr. Adel Shaker.

                                               2
she had a conversation with the doctor who performed the autopsy. UMC’s answer to the

complaint pleaded generally as an affirmative defense that “[c]laims against this defendant

are barred by the applicable statute(s) of limitations.”

¶6.    UMC propounded interrogatories on the same day it filed its answer. Hampton failed

to respond and to attend a hearing on UMC’s motion to compel. The court granted the motion

to compel and Hampton submitted responses. Hampton then failed to appear at three noticed

depositions. Following Hampton’s failure to appear at the third scheduled deposition on

February 8, 2013, UMC filed a motion to dismiss due to the delay in litigation created by

Hampton’s repeated failure to engage in the discovery process. UMC asserted that “[t]he

plaintiff’s blocking of initial basic discovery has prevented the defendant from evaluating

certain affirmative defenses to determine if motions should be made.” Hampton was finally

deposed on May 1, 2013. At that deposition, Hampton disclosed her November 10 or 11,

2010 conversation with the doctor who performed the autopsy on Smith. She also discussed

that, around that same time, she had talked with an attorney friend, who informed her that she

might have grounds for a suit against the hospital.

¶7.    Following receipt of Hampton’s deposition transcript, UMC moved for summary

judgment on May 28, 2013. It asserted that Hampton’s complaint—after accounting for the

relevant Mississippi Tort Claims Act (MTCA) tolling periods—was filed fourteen days after

the one-year limitations period and therefore barred. Hampton responded that UMC’s

affirmative defense had been waived and that it lacked merit. A hearing was held on the




                                              3
motion for summary judgment on June 20, 2013.2 The court took the motion under

advisement, and denied the motion the morning of trial without specifying the grounds for

denial.3

¶8.    After a bench trial, in which the court heard the testimony of various expert witnesses,

the court entered a judgment in favor of Hampton on July 15, 2014, in the amount of

$500,000, finding that UMC breached its standard of care and that the breach proximately

caused or contributed to Smith’s death.

¶9.    UMC appeals, asserting that it did not waive its valid statute-of-limitations defense.

In the alternative, UMC raises various challenges to the plaintiff’s experts’ testimony.

Because we resolve this case on the basis of UMC’s affirmative defense of the statute of

limitations, we do not reach the challenge to the plaintiff’s experts’ testimony.

                                       DISCUSSION

¶10.   Statutory interpretation is a question of law reviewed de novo. Page v. Univ. of S.

Miss., 878 So. 2d 1003, 1005 (¶4) (Miss. 2004). The discovery rule is applicable to wrongful-

death actions brought under the MTCA. Caves v. Yarborough, 991 So. 2d 142, 146 (¶13)

(Miss. 2008). “[T]he limitations period for MTCA claims does not begin to run until all the


       2
         UMC’s Mississippi Rule of Appellate Procedure 10(b) certificate states that “[t]he
record is missing the transcript of the June 20, 2013 hearing on the motion for summary
judgment filed by UMC. The transcript was specifically included in this party’s designation
of the record.”
       3
        At the start of trial on November 4, 2013, counsel for UMC stated, “First of all, we
have a summary judgment motion that the Court took under advisement . . . .” The court
responded, “Let me go ahead and rule on it. I had reviewed it on last week [sic] these matters
coming up for the trial. The Court reviewed the motion for summary judgment and the Court
found it not to be well taken and that matter will be denied.”

                                              4
elements of a tort exist, and the claimant knows or, in the exercise of reasonable diligence,

should know of both the injury and the act or omission which caused it.” Id. at 155 (¶53).

“Waiver is a matter of law where the material facts and circumstances are undisputed or

clearly established.” Bott v. J.F. Shea Co., 388 F.3d 530, 534 (5th Cir. 2004) (quoting First

Interstate Bank of Ariz. v. Interfund Corp., 924 F.2d 588, 595 (5th Cir. 1991)). Whether a

delay is unreasonable will be determined on a case-by-case basis. MS Credit Ctr. v. Horton,

926 So. 2d 167, 181 (¶45) (Miss. 2006).

       I.     Hampton filed her complaint outside of the statute of limitations.

¶11.   The parties agree that the discovery date and start of Hampton’s one-year limitations

period was at the latest November 12, 2010. The parties dispute whether the final ninety-day

period to file provided in section 11-46-11(3) (combined with the remaining five days of the

original one-year statute of limitations) began running on February 10, 2012, at the expiration

of the ninety-five-day tolling period following UMC’s receipt of notice of the claim, or on

February 28, 2012, upon UMC’s denial of Hampton’s claim.

¶12.   Prior to 2012, section 11-46-11(3) provided in relevant part:

       All actions brought under the provisions of this chapter shall be commenced
       within one (1) year next after the date of the tortious, wrongful or otherwise
       actionable conduct on which the liability phase of the action is based, and not
       after; provided, however, that the filing of a notice of claim as required by
       subsection (1) of this section shall serve to toll the statute of limitations for a
       period of ninety-five (95) days from the date the chief executive officer of the
       state agency receives the notice of claim . . . during which time no action may
       be maintained by the claimant unless the claimant has received a notice of
       denial of claim. After the tolling period has expired, the claimant shall then
       have an additional ninety (90) days to file any action against the governmental
       entity served with proper claim notice. However, should the governmental
       entity deny any such claim, then the additional ninety (90) days during which


                                               5
       the claimant may file an action shall begin to run upon the claimant’s receipt
       of notice of denial of claim from the governmental entity.4

¶13.   The Mississippi Supreme Court interpreted section 11-46-11(3) in Page v. University

of Southern Mississippi, 878 So. 2d 1003, 1008 (¶21) (Miss. 2004), including a sample

hypothetical of the current scenario in which a plaintiff’s claim is denied after the tolling

period expires. Justice Carlson for the Court concluded that the days remaining are counted

from “the date on which the . . . tolling period ended,” not the date of the denial. Id.

¶14.   In 2012, the Legislature “clarified” the statute, making explicit that the statute resumes

running from “whichever comes first”—the claim’s denial or the expiration of the ninety-

five-day tolling period. Following the clarification, section 11-46-11(3)(b) states:

       No action whatsoever may be maintained by the claimant until the claimant
       receives a notice of denial of claim or the tolling period expires, whichever
       comes first, after which the claimant has an additional ninety (90) days to file
       suit; failure to file within the time allowed is an absolute bar to any further
       proceedings under this chapter.

In essence, the Legislature incorporated the legal rule of the Page hypothetical directly into

the statute.

¶15.   Hampton argues that the applicable scenario outlined in Page was mere dicta, and that

the original version of the statute should be construed so that the ninety days will begin to

run after the expiration of the ninety-five days or after receipt of denial of the claim, even if

that receipt comes after the expiration of the ninety-five-day tolling period. This Court treated



       4
         For purposes of appeal we will generally apply the version of the statute in effect
at the time. See Estate of Elmore v. Williams, 150 So. 3d 700, 701 n.1 (Miss. 2014). “A
statute will not be given retroactive effect unless it is manifest from the language that the
legislature intended it to so operate.” Mladinich v. Kohn, 186 So. 2d 481, 483 (Miss. 1966).

                                               6
the Page interpretation of the statute as compelling authority in Farmer v. Bolivar County,

910 So. 2d 671, 673 (¶10) (Miss. Ct. App. 2005). Dicta encompass “opinions of a judge

which do not embody the resolution or determination of the court.” Black’s Law Dictionary

(Rev. 4th ed. 1968); see also Deer Island Fish & Oyster Co. v. First Nat’l Bank, 166 Miss.

162, 146 So. 116, 119 (1933). The scenarios outlined by the supreme court in Page clearly

embodied the resolution of the court’s interpretation of the statute and were included as

guidance for applying the court’s determination.

¶16.   Regardless, our courts have long followed the principle that

       [i]n construing a statute, a court may look to later acts of the legislature to
       ascertain the correct meaning of a prior statute. Warner v. Board of Trustees,
       359 So.2d 345, 348 (Miss. 1978) (citing Crosby v. Barr, 198 So. 2d 571 (Miss.
       1967)). This principle of statutory construction is well recognized, and its
       sense is apparent. Construing amendments as clarifications of former statutes
       “removes a great deal of uncertainty in a law.” 2A Sutherland, Statutory
       Construction, § 49.11 (Sands ed. 1985).

Grant Ctr. Hosp. of Miss. v. Health Grp. of Jackson, Miss., 528 So. 2d 804, 810 (Miss.

1988). Here, we do not even have to “construe” the revision as a clarification because the

title of the 2012 amendment explicitly describes its purpose as “to clarify” the statute of

limitations. Considering the Legislature’s declared intent to “clarify,” along with the fact that

the revisions operated to incorporate the previous interpretation of the statute from the

Mississippi Supreme Court, we find that the Page interpretation was not dicta, and is

controlling over the previous version of the statute.

¶17.   The discovery date of Hampton’s cause of action was November 12, 2010. UMC

received notice of Hampton’s claim on November 7, 2011. The ninety-five-day tolling period



                                               7
ended on February 10, 2012. UMC denied Hampton’s claim on February 28, 2012, but the

remaining five days in the original one-year statute are calculated from February 10, 2012,

the date on which the tolling period expired. The five days remaining in the original

limitations period combined with the final ninety days expired on May 15, 2012. Hampton

filed her complaint on May 29, 2012, fourteen days outside of the limitations period.

       II.     UMC did not waive its statute-of-limitations defense.

¶18.   Hampton argues that UMC waived its statute-of-limitations defense by waiting to file

for summary judgment almost a year after Hampton filed her complaint. UMC argues that

Hampton’s complaint did not provide sufficient facts for UMC to know the date Hampton

discovered that she had a claim, and that it filed for summary judgment within a reasonable

time of Hampton’s deposition testimony establishing November 12, 2010, as the latest

possible discovery date of her wrongful-death claim.

¶19.   “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 waiver.” Estate of Grimes v. Warrington, 982 So. 2d 365, 370 (¶22) (Miss. 2008)

(quoting Horton, 926 So. 2d at 181). “[T]o pursue an affirmative defense [means] ‘to plead

it, bring it to the court’s attention, and request a hearing.’” Id. at (¶23) (citing Horton, 926

So. 2d at 181). Whether a delay is unreasonable will be determined on a case-by-case basis.

Horton, 926 So. 2d at 181 (¶45).

¶20.   Hampton argues that the Mississippi Supreme Court found waiver of the right to



                                                 8
compel arbitration after an unreasonable eight-month delay. Id. In Horton, the defendant

unreasonably delayed in bringing its arbitration defense before the trial court for adjudication

by substantially engaging in the litigation process for eight months, during which it consented

to a scheduling order, engaged in written discovery, and conducted the plaintiff’s deposition

before asserting the right to compel arbitration. Id. at 180 (¶41). While declining to set a

minimum time after which a delay is unreasonable, the court held that—“absent extreme and

unusual circumstances—an eight[-]month unjustified delay in the assertion and pursuit of any

affirmative defense or other right which, if timely pursued, could serve to terminate the

litigation, coupled with active participation in the litigation process, constitutes waiver as a

matter of law.” Id. at 181 (¶45).

¶21.   In Estate of Grimes, the supreme court held that the defendant waived his MTCA-

immunity defense by waiting five years after initially pleading the defense to bring it to the

court’s attention via a motion for summary judgment. Estate of Grimes, 982 So. 2d at 370

(¶22). The case had been set for trial twice following the designation and deposition of

experts. Id. The court noted that the defendant “offers no explanation as to why he did not

move the lower court for summary judgment until [five years into litigation]. He offers no

evidence that any information needed to assert this affirmative defense was not available to

him from the inception of the litigation.” Id. at (¶26).

¶22.   When waiver is asserted, we look to whether the delay in raising the defense was

reasonable to determine if waiver has occurred. When the affirmative defense pleaded is

statute of limitations, and the claim is one in which a plaintiff can claim the benefit of the



                                               9
discovery rule, and the complaint does not allege facts disclosing the discovery date, it

follows that some participation in litigation may be reasonable or necessary to uncover the

facts needed to successfully bring the defense to the court’s attention for adjudication.

UMC’s uncertainty at the time of its answer and during the initial discovery process as to

when the statute of limitations began to run did not defeat its ability to pursue the defense as

the date of discovery of the cause of action became known. See Jones v. Fluor Daniel Servs.,

32 So. 3d 417, 421 (¶12) (Miss. 2010) (holding that the defendant sufficiently pleaded the

affirmative defense in its answer by stating “[t]he plaintiffs’ claims, to the extent any are

stated, may be barred by statutes of limitations”).

¶23.   UMC’s motion to dismiss following Hampton’s third failure to appear at a noticed

deposition shows that UMC’s participation in the litigation through the discovery process

attempted to gather information necessary to assert its affirmative defenses. UMC’s motion

to dismiss plainly asserts that “[t]he plaintiff’s blocking of initial basic discovery has

prevented the defendant from evaluating certain affirmative defenses to determine if motions

should be made.”

¶24.   In Horton and similar cases where the defendant was found to have waived its right

to raise the affirmative defense of arbitration, the plaintiff was the one who suffered

prejudice due to the expense and effort of engaging in discovery—an expense that would be

redundantly incurred if the plaintiff were forced to start over in arbitration proceedings. See

Citibank N.A. v. Stovall, 2014-CA-01410-COA, 2016 WL 225169, at *3 (¶11) (Miss. Ct.

App. Jan. 19, 2016). This concern is not present here where the general delay in litigation



                                              10
occurred due to the plaintiff’s refusal to timely and actively participate in moving the

litigation forward, and where the termination of the litigation is with prejudice. While a

successful MTCA-immunity defense in Estate of Grimes would have similarly terminated

the litigation with prejudice, the plaintiff in that case suffered prejudice by actively

participating in the litigation for five years, participation that included the designation and

deposition of experts and twice setting the case for trial.

¶25.   UMC provided a reasonable justification for why it did not move the trial court for

summary judgment until months after the complaint was filed. UMC lacked exact knowledge

of when the plaintiff discovered the claim necessary to present its statute-of-limitations

defense. Hampton’s complaint did not plead the date the claim was discovered or include

facts that would indicate the discovery date of her claim. UMC pleaded the defense and then

timely pursued discovery of the information needed to successfully bring the defense to the

court’s attention. Frustrated in its pursuit of discovery, UMC first moved to compel discovery

and later moved that the complaint be dismissed for Hampton’s refusal to engage in

discovery. Once UMC gained the necessary information via Hampton’s deposition, it

promptly filed a motion for summary judgment on the basis of its defense and pursued the

court’s adjudication of its defense. Had UMC filed for summary judgment prior to receiving

information indicating a discovery date of the plaintiff’s claim, it would not have been able

to support its motion with evidence of when the statute of limitations began to run and

therefore of when it expired. Considering the course of proceedings of this case below, UMC

did not waive its right to claim its affirmative statute-of-limitations defense.



                                              11
                                       CONCLUSION

¶26.   Even after accounting for the relevant tolling periods, Hampton filed her claim outside

of the one-year statute of limitations. UMC did not waive its statute-of-limitations defense

by waiting to file for summary judgment until discovery produced the facts necessary to

determine the start date of the running of the statute. Because we reverse and render on

procedural grounds, we do not reach the issues raised by UMC concerning the testimony of

Hampton’s expert witnesses at trial.

¶27. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEE.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND WILSON, JJ.,
CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
CARLTON AND JAMES, JJ., NOT PARTICIPATING.

       IRVING, P.J., DISSENTING:

¶28.   It is undisputed that UMC failed to discover a laceration to Smith’s heart after he was

transported to UMC for emergency treatment for a stab wound. It is also undisputed that

Smith died as a result of the bleeding that occurred from the undetected heart injury.

¶29.   However, the majority, finding that Hampton’s lawsuit against UMC was untimely,

reverses and renders the judgment of the Hinds County Circuit Court, which had found that

UMC’s negligence was the proximate cause of Smith’s death. I would find that the statute

of limitations was not a bar to Hampton’s lawsuit because, in my view, UMC—by engaging

in litigation not specifically designed to gather information supportive of its statute-of-

limitations defense—waived that defense. Consequently, I dissent. I would affirm the



                                             12
judgment of the circuit court.

¶30.   The majority finds that “UMC did not waive its statute-of-limitations defense by

waiting to file for summary judgment until discovery produced the facts necessary to

determine the start date of the running of the statute.” I agree that UMC was entitled to

conduct a reasonable amount of discovery to support its belief and assertion in its answer that

the statute of limitations had run prior to Hampton filing her lawsuit. However, a close

scrutiny of all of the discovery that was conducted by UMC in this case reveals that its initial

focus was not limited to gathering information to support its statute-of-limitations defense

and that it participated in the litigation after it had acquired the relevant information.

¶31.   Hampton filed her lawsuit against UMC on May 29, 2012. From the date of the filing

of her lawsuit until February 2013, Hampton, a non-lawyer, represented herself. On

September 21, 2012, UMC answered Hampton’s complaint and propounded interrogatories

to her. When she did not timely answer them, UMC filed a motion to compel, which the

circuit court granted on December 12, 2012. In compliance with the court order, Hampton

answered the interrogatories. In the meantime, beginning in January 2013, UMC had made

two unsuccessful attempts to take Hampton’s deposition. So UMC filed a motion to dismiss

Hampton’s complaint because of her failure to sit for a deposition. At that point, Hampton

obtained counsel, and her counsel responded to UMC’s motion to dismiss and offered to

proceed with Hampton’s deposition. UMC deferred taking Hampton’s deposition until after

it could obtain a hearing on its motion to dismiss. The circuit court denied the motion, and

then UMC agreed to a scheduling order setting the case for trial on November 4, 2013, even



                                              13
though it had not taken Hampton’s deposition.

¶32.   After the agreed scheduling order was entered, UMC took Hampton’s deposition,

along with another person’s, on May 1, 2013. The medical deposition of Dr. Douglas Soltys

was taken on May 22, 2013. On May 28, 2013, UMC filed its motion for summary

judgment, asserting as the sole basis that Hampton’s complaint was untimely because the

statute of limitations had run prior to her filing it. It is not entirely clear from the record if

UMC ever noticed for hearing its motion for summary judgment.5 The majority, apparently

citing UMC’s Mississippi Rule of Appellate Procedure 10(b)(5) certificate as authority, says

that a hearing was held on UMC’s motion for summary judgment on June 20, 2013.6

However, a review of the record in its totality points to one inescapable conclusion: There

is simply no compelling evidence in the record before this Court that UMC ever brought its

motion for summary judgment on for hearing prior to the date of the trial. First, as stated,

there is nothing in the record showing that the motion was ever noticed for hearing. Second,

the docket does not show that a hearing was either scheduled or had on June 20, 2013. In

fact, the docket does not reflect any entry at all for June 20, 2013. Third, after UMC filed

its Rule 10(b)(5) certificate on April 10, 2015, it filed a motion with the Mississippi Supreme

Court on May 1, 2015, to suspend briefing, which was granted by the supreme court on May


       5
        The docket sheet reflects that a notice of hearing was filed on June 14, 2013, but the
type of hearing that was being noticed is not specified.
       6
       The majority correctly quotes the statement made by the circuit judge on the
morning of the trial about the matter having been taken under advisement. It is noteworthy,
however, that neither the circuit judge nor UMC’s attorney mentioned that the motion for
summary judgment had been heard on June 20, 2013, and taken under advisement on that
date.

                                               14
6, 2015. On Thursday, May 7, 2015, the court reporter for the circuit court sent an e-mail to

the Clerk of the Supreme Court and Court of Appeals (Clerk) stating: “The transcript was re-

filed on Tuesday and given to the Hinds County Clerk’s Office. Please forgive my

incomplete record. All the proposed changes to the record were made true and correct.”

The re-filed record consists of two supplemental volumes, and neither volume contains a

transcript of a June 20, 2013 hearing. Nor is there any further objection or complaint from

UMC regarding the record not containing the alleged June 20, 2013 hearing transcript. On

June 4, 2015, the Clerk issued notice that the briefing schedule had resumed.

¶33.   In any event, the motion for summary judgment was not ruled upon until the date of

the trial—November 4, 2013— and UMC participated in substantial discovery—without

pushing for a hearing on its motion for summary judgment—after learning for certain on May

1, 2013, that Hampton’s suit should be time-barred. More specifically, UMC participated

in written discovery and the following depositions after it had learned the date that Hampton

was aware that she had a cause of action against it: Dr. Mildra Anthony on October 24, 2013,

at the instance of UMC; Dr. Zain Khalpey, taken in Tucson, Arizona, on October 19, 2013;

and Dr. Evan Underwood, taken on October 26, 2013. Had UMC included an interrogatory

requesting the date that Hampton learned that she had a cause of action against UMC, it

would have had that information as early as December 2012. During oral argument, UMC

admitted that it did not submit an interrogatory seeking any information as to when Hampton

learned that she had a cause of action against UMC. UMC further admitted that it did not

limit the scope of its discovery to obtaining information that would support its affirmative



                                             15
defenses. Perhaps the reason that UMC did not submit such an interrogatory is because it

already had the information, as the record is clear that UMC knew even before Hampton filed

her complaint that Hampton knew or believed as early as November 8, 2010—the date of

Smith’s death—that his death was caused by UMC’s negligence. The portion of the record

that makes that clear is Hampton’s notice-of-claim letter that she had hand-delivered to

James E. Keeton, M.D., chief executive officer of UMC, on November 7, 2011. I quote the

pertinent portions of that letter:

       On October 31, 2010, in Marion County, Mississippi, Kimrick Smith suffered
       a stab wound to the chest. While he was initially taken to Marion County
       Hospital, he was immediately transferred to Forrest General in Hattiesburg,
       Mississippi, then taken by Aircare to University of Mississippi Medical Center
       (“UMMC”) and attended by various personnel. Marion County Hospital
       personnel noted that the patient needed a CT Scan with contrast to address
       concerns about a possible vascular injury. During his stay at UMMC, Mr.
       Smith continued to bleed from his chest wound. This condition remained
       untreated and/or undiagnosed and/or misdiagnosed and/or inadequately treated
       during his stay at UMMC. He was discharged on November 3, 2010, having
       never received the explicitly recommended CT Scan with contrast, despite the
       fact that such a scan was indicated by an ST elevation on his ECG.

       On November 8, 2010, Mr. Smith was brought to the Marion General Hospital
       with a syncopal episode. Mr. Smith died shortly after admission. It is Ms.
       Hampton’s belief and allegation, based on information obtained from both the
       Marion General Hospital and the Marion Coroner that Mr. Smith’s death was
       occasioned by injured [sic] from the stab wound he suffered on October 31,
       2010. It is also Ms. Hampton’s belief and allegation that UMMC failed to
       properly diagnose and treat Mr. Smith and, further, improperly discharged Mr.
       Smith, all contributing to and resulting in Mr. Smith’s death.

¶34.   So it is clear to me that UMC was not diligent in making the effort to acquire the

information that it felt it needed to support its statute-of-limitations defense and that it

participated in litigation for over six months after it had acquired the requisite information



                                             16
from Hampton’s deposition testimony.

¶35.   While it is clear that Hampton did not file her lawsuit within one year as required by

Mississippi Code Annotated section 11-46-11 (Rev. 2012), it is also equally clear to me that

UMC’s participation in the litigation for over six months after it had all the information it

needed to end the litigation should operate as a waiver of its statute-of-limitations affirmative

defense. See E. Miss. State Hosp. v. Adams, 947 So. 2d 887, 891 (¶10) (Miss. 2007)

(holding that the “defendants waived the defenses . . . by failing to pursue them until almost

two years after they raised them in their answer while actively participating in the

litigation”).

¶36.   “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.” MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (¶44) (Miss. 2006).

In Horton, the appellant waited eight months to compel arbitration and the court ruled it was

an unjustified delay. Our supreme court held in Horton “that—absent extreme and unusual

circumstance—an eight month unjustified delay in the assertion and pursuit of any

affirmative defense or other right which, if timely pursued, could serve to terminate the

litigation, coupled with active participation in the litigation process, constitutes waiver as a

matter of law.” Id. at 181 (¶45). Our supreme court also stated in Estate of Grimes ex rel.

Wrongful Death Beneficiaries v. Warrington, 982 So. 2d 365, 370 (¶27) (Miss. 2008):

       [The appellee] asserted his affirmative defense in his answer, but rather than
       filing a motion to dismiss on this ground, he proceeded substantially to engage

                                                17
       [in] the litigation process by consenting to a scheduling order, participating in
       written discovery, and conducting depositions. This Court finds that [the
       appellee’s] failure actively and specifically to pursue his MTCA affirmative
       defense while participating in the litigation served as a waiver of the defense.

(Emphasis added).

¶37.   As stated, Hampton filed her lawsuit against UMC on May 29, 2012, and on

September 21, 2012, UMC filed its answer, asserting its statute-of-limitations defense, but

it did not file its motion for summary judgment on that ground until May 28, 2013. While

it is true that beginning in January 2013, UMC sought unsuccessfully to take Hampton’s

deposition at least two or three times, it waited approximately four months before it even

answered Hampton’s complaint and then another three months before it attempted to take her

deposition. And the discovery that it sought in the first three months following the date of

the filing of its answer, which included the statute-of-limitations affirmative defense, was not

even designed to solicit information in support of that affirmative defense.

¶38.   And so I reiterate—even if UMC’s motion for summary judgment had been heard on

June 20, 2013, and taken under advisement by the circuit judge—it seems to me that UMC’s

failure to take any action prior to the November 4, 2013 trial date to prod the circuit court

into ruling on the motion for summary judgment prior to participating in several expensive

depositions in October—just days before the trial—must be taken as either an abandonment

of the motion or a waiver of its statute-of-limitations affirmative defense.

¶39.   For the reasons stated, I dissent. I find no reversible error and would affirm the

judgment of the circuit court.




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