                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-IA-01617-SCT

KIMBALL GLASSCO RESIDENTIAL CENTER,
INC. AND VERA RICHARDSON

v.

TERRANCE SHANKS AS NEXT OF KIN OF LOIS
SHANKS


DATE OF JUDGMENT:                         09/15/2009
TRIAL JUDGE:                              HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 WADE G. MANOR
                                          JAMIE LEIGH HEARD
ATTORNEY FOR APPELLEE:                    ELLIS TURNAGE
NATURE OF THE CASE:                       CIVIL - TORTS - OTHER
DISPOSITION:                              REVERSED AND RENDERED - 06/09/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Terrance Shanks filed this 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 (DCMHS), not Kimball Glassco, and

that the action was barred by the one-year statute of limitations under the Mississippi Tort

Claims Act (MTCA). Miss. Code Ann. § 11-46-11(3) (Rev. 2002). Kimball Glassco’s
answer asserted that Kimball Glassco is a state entity entitled to the protections of the

MTCA.

¶2.    At the hearing on the motion to dismiss, Kimball Glassco and Richardson argued that

Shanks’s action was time-barred under the MTCA. 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 the MTCA’s one-

year statute of limitations based on a misrepresentation by the Mississippi Tort Claims Board

(MTCB) that DCMHS was not a state entity. This Court has granted the defendants’ petition

for an interlocutory appeal. Because the defendants did not waive their statute-of-limitations

defense, and Kimball Glassco and Richardson were not equitably estopped by the

misrepresentation of the MTCB, we reverse and render the decision of the trial court.

                                           FACTS

¶3.    Shanks filed the instant lawsuit on April 8, 2008, alleging that, on April 15, 2005, Lois

had been a passenger in an automobile owned by Kimball Glassco and driven by Richardson.

Shanks claimed that Lois had been injured when Richardson negligently failed to keep a

proper lookout and lost control of the automobile. Shanks alleged that Richardson was

employed by Kimball Glassco, and that Kimball Glassco was vicariously liable for

Richardson’s negligence because the accident had occurred in the course and scope of

Richardson’s employment.

¶4.   Richardson filed a motion to dismiss, alleging that she was employed by DCMHS and

that, because DCMHS is a state entity, she is entitled to the protections of the MTCA.


                                              2
Richardson admitted that Shanks had given a notice of claim to DCHMS as required by

Mississippi Code Section 11-46-11(3). However, she alleged that Shanks’s lawsuit was time-

barred by the MTCA’s one-year statute of limitations. See Miss. Code Ann. § 11-46-11(3)

(Rev. 2002). In its answer, Kimball Glassco averred that it is a corporation created under the

laws of the State of Mississippi by the board of DCMHS. On that basis, Kimball Glassco

asserted that it is a state entity covered by the MTCA. Kimball Glassco also averred that

Richardson had been employed by DCMHS, not Kimball Glassco.

¶5.    Shanks filed a response disputing the applicability of the MTCA and alleging that, in

the July 28, 2006, letter, the defendants and the MTCB 1 had made misrepresentations that

detrimentally had induced Shanks to file suit outside the MTCA’s limitations period.

Therefore, Shanks argued, the defendants were equitably estopped from relying on the MTCA

statute of limitations as an affirmative defense. Shanks also argued that the statute of

limitations was tolled by the defendants’ fraudulent concealment. The same day, Shanks filed

a motion for leave to amend the complaint to add the MTCB as a defendant and add claims

for concealment, equitable and judicial estoppel, waiver, detrimental reliance, and deprivation

of notice and due process of law.

¶6.   In support of the equitable-estoppel argument, Shanks attached to the motion to amend

a letter from Bruce Donaldson of the MTCB to Shanks’s counsel, dated July 28, 2006. The

letter acknowledged that Shanks had given a notice of claim to DCMHS and the Mississippi



        1
          The powers and duties of the MTCB are codified at Mississippi Code Section 11-46-
 19 (Supp. 2010). These powers and duties include, inter alia, overseeing the Tort Claims
 Fund, assigning litigated claims to attorneys where necessary, and purchasing insurance
 policies for the protection of the State. Id.

                                              3
Department of Mental Health.2 The letter stated that the MTCB had been advised by the

Mississippi Department of Mental Health that DCMHS was not a state agency or a department

or division of the Mississippi Department of Mental Health. Shanks alleged that the MTCB’s

misrepresentation had induced him to file suit outside the one-year statute of limitations

applicable to a state entity under the MTCA.

¶7.    On June 8, 2009, Kimball Glassco and Richardson filed a notice of hearing of the Motion

to Dismiss. The hearing occurred on August 19, 2009. On the day of the hearing, Shanks filed

a supplemental response, claiming that the defendants had waived their affirmative defenses

under the MTCA by failing to seek a timely hearing. The trial court held that Kimball Glassco

and Richardson had waived their MTCA defenses because they had failed timely and

reasonably to raise and pursue enforcement of those defenses while actively participating in the

litigation. Alternatively, the trial court found that Kimball Glassco and Richardson were

equitably estopped from pursuing their MTCA defenses based on the letter from the MTCB that

stated DCMHS was not a state entity.

                                     STANDARD OF REVIEW

¶8.    This Court applies de novo review to the grant or denial of a motion to dismiss or a

motion for summary judgment. Price v. Clark, 21 So. 3d 509, 517 (Miss. 2009).

                                            DISCUSSION

       I.          WHETHER THE TRIAL COURT ERRED IN DENYING SHANKS’S
                   MOTION TO DISMISS.

       A. Waiver



            2
                Shanks filed the notice of claim on April 4, 2006.

                                                   4
¶9.    The MTCA provides the exclusive civil remedy against a governmental entity and its

employees. Miss. Code Ann. § 11-46-7(1) (Rev. 2002). All actions brought under the MTCA

are subject to a one-year statute of limitations, which is tolled by a timely-filed notice of claim.

Miss. Code Ann. § 11-46-11(3) (Rev. 2002). A party instigating a claim under the MTCA must

file a notice of claim with the chief executive officer of the governmental entity ninety days

before maintaining an action. Miss. Code Ann. § 11-46-11(1) (Rev. 2002).

¶10.   A governmental entity includes the State and its political subdivisions. Miss. Code Ann.

§ 11-46-1(g) (Rev. 2002). The “State” includes “the State of Mississippi and any office,

department, agency, division, bureau, commission, board, institution, hospital, college,

university, airport authority, or other instrumentality thereof, . . . .” Miss. Code Ann. § 11-46-

1(j) (Rev. 2002).     The definition of “political subdivision” encompasses “any county,

municipality, school district, community hospital . . . airport authority or other instrumentality

thereof . . . .” Miss. Code Ann. § 11-46-1(i) (Rev. 2002). Any claim against an employee of

a governmental entity for acts arising out of his or her employment must be brought pursuant

to the MTCA. Miss. Code Ann. § 11-46-7 (Rev. 2002). In City of Hattiesburg v. Region XII

Commisson on Mental Health and Retardation, 654 So. 2d 516, 517 (Miss. 1995), this Court

held that a regional mental-health commission is a state agency.

¶11.   Kimball Glassco and Richardson assert 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,

                                                 5
Kimball Glassco and Richardson either waived their MTCA defenses, or they are estopped from

asserting them by the MTCB letter.

¶12.   Kimball Glassco and Richardson argue that the trial court erred by finding that they had

waived their affirmative defenses by failing to timely and reasonably pursue those defenses

while actively participating in the litigation. This Court has held 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 serve as a waiver.” MS Credit Ctr.,

Inc., v. Horton, 926 So. 2d 167, 180 (Miss. 2006). To pursue an affirmative defense means “to

plead it, bring it to the court’s attention, and request a hearing.”        Estate of Grimes v.

Warrington, 982 So. 2d 365, 370 (Miss. 2008) (citing Horton, 926 So. 2d at 181). Because

MTCA immunity is considered to be an affirmative defense, this Court has held that a

governmental entity’s immunity under the MTCA is subject to waiver. Id.

¶13.   In his brief, Shanks makes several admissions that both Kimball Glassco and Richardson

raised their MTCA defenses on May 12, 2008. Nothing further transpired in the case until April

6, 2009, when Shanks noticed the service of discovery on the defendants, including

interrogatories, requests for production of documents, and requests for admissions. On May 14

and May 22, 2009, the defendants served discovery responses on Shanks. The trial court’s

order recites correspondence between the parties concerning the motion to dismiss as follows:3



          3
            Although copies of this correspondence are included in Kimball Glassco’s and
  Richardson’s record excerpts, this correspondence was not made a part of the official record
  in this case. This correspondence and other extra-record documents included in the record
  excerpts are the subject of a motion to dismiss filed by Shanks. “‘[T]his Court will not

                                                6
               Correspondence dated June 27, 2008 from defense counsel to counsel for
       the Plaintiff reaffirmed the Defendant’s assertion of the statute of limitations
       defense. On January 13, 2009, counsel for the Defendants against [sic] asserted
       the same position and informed Plaintiff’s counsel of his intent to set the motion
       for hearing. On April 8, 2009, available hearing dates were provided by defense
       counsel to counsel for the Plaintiff. After receiving no response from Plaintiff’s
       counsel, on May 12, 2009, counsel for the Defendant again requested dates that
       Plaintiff’s counsel could be made available for hearing. On May 21, 2009,
       Plaintiff’s counsel responded by requesting additional dates for the following
       month. Finally, on June 4, 2009, counsel for both parties agreed on a hearing
       date. On June 8, 2009, Defendants formally noticed their Motion to Dismiss for
       hearing. On August 19, 2009, a hearing was held on Defendants’ Motion to
       Dismiss.

¶14.   Thus, 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’



  consider matters which do not appear in the record and must confine itself to what actually
  does appear in the record.’” Rushing v. State, 711 So. 2d 450, 454 (Miss. 1998) (quoting
  Medina v. State, 688 So. 2d 727, 732 (Miss. 1996)). If a party believes that the appellate
  record contains errors or omissions, the proper procedure for “Correction or Modification of
  the Record” is outlined in Mississippi Rule of Appellate Procedure 10(e). See M.R.A.P.
  10(e). This Court will not consider the extra-record materials filed with the record excerpts,
  and Shanks’s motion to strike these materials is granted. However, it is apparent from the
  trial court’s order that the correspondence was considered by the trial court in making its
  ruling. Because this order is a part of the official record, we are able to rely on its discussion
  of the correspondence in determining the issues on appeal.

                                                7
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.

¶15.   In Horton, the defendants asserted their right to arbitration in their answer, but then they

participated in the litigation by consenting to a scheduling order, engaging in discovery, and

taking a deposition. Horton, 926 So. 2d at 180. After eight months of substantial participation

in the litigation, they filed a motion to compel arbitration. Id. This Court held that the

defendants had waived their right to compel arbitration by substantially participating in the

litigation for eight months. Id. at 181. The Court held that the determination of whether a delay

in pursuing an affirmative defense is unreasonable is subject to a case-by-case analysis, and that

no minimum number of days would constitute an unreasonable delay in every case. Id. The

Court stated that:

       [O]rdinarily, neither delay in pursuing the right to compel arbitration nor
       participation in the judicial process, standing alone, will constitute a waiver. That
       is to say, a party who invokes the right to compel arbitration and pursues that
       right will not ordinarily waive the right simply because of involvement in the
       litigation process, and a party who seeks to compel arbitration after a long delay
       will not ordinarily be found to have waived the right where there has been no
       participation in, or advancement of, the litigation process.

Id. at 180. However, the Court stated that “[w]e do hold . . . 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.

¶16.   Shanks admits that Kimball Glassco and Richardson timely raised the statute-of-

limitations defense on May 12, 2008. The trial court found that they had waived the defense

                                                8
by failing to pursue it by timely noticing a hearing on the motion to dismiss. The record reveals

an approximately eleven-month delay during which nothing occurred of record in the case.

During this time, Kimball Glassco and Richardson requested that Shanks propose dates for a

hearing on the motion to dismiss. Activity of record resumed on April 6, 2009, when Shanks

served discovery requests on the defendants. At that point, the defendants promptly requested

that Shanks propose hearing dates. Upon receiving no response to two requests for proposed

hearing dates, the defendants responded to the discovery requests a few days after the thirty-day

deadline for discovery responses had passed. See M.R.C.P. 33(b)(3), 34(b), 36. Finally, the

parties agreed on a hearing date for the motion to dismiss.

¶17.   The facts in this case do not indicate that Kimball Glassco and Richardson waived their

MTCA defenses. Although there was an approximately eleven-month delay in the case, during

the delay no party took any action to advance the litigation. During the delay, Kimball Glassco

and Richardson pursued their affirmative defense by informing Shanks of their intent to seek

a hearing on the motion to dismiss. When Shanks resumed activity in the case by filing

discovery, Kimball Glassco and Richardson immediately resumed their effort to secure

proposed hearing dates for the motion to dismiss. Although Kimball Glassco and Richardson

responded to the discovery requests, they were required to do so by the Rules of Civil

Procedure, and they simultaneously sought opposing counsel’s agreement on proposed hearing

dates on the motion to dismiss. 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.

       B. Equitable Estoppel


                                               9
¶18.   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.

¶19.   Kimball Glassco and Richardson argue that the trial court’s ruling was error because the

elements of equitable estoppel were not met. 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.” Simmons

Housing, Inc. v. Shelton, 36 So. 3d 1283, 1287 (Miss. 2010) (quotation omitted). Because

equitable estoppel is an extraordinary remedy, it is one that should be applied with caution. Id.

“Inequitable or fraudulent conduct must be established to apply the doctrine of equitable

estoppel to a statute of limitations,” including the statute of limitations under the MTCA.

Trosclair v. Miss. Dep’t of Transp., 757 So. 2d 178, 181 (Miss. 2000).

¶20.   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

                                               10
entity. For example, in Trosclair, this Court found that the Mississippi Department of

Transportation (MDOT) was equitably estopped from asserting the MTCA statute of limitations

because it erroneously had informed the plaintiff that certain roadwork had been performed by

a private entity, when, in fact, it had been performed by MDOT. Id. 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. There was no showing of inequitable conduct on behalf of Kimball Glassco

or Richardson. We find that no action by Kimball Glassco or Richardson reasonably could have

induced Shanks to believe Kimball Glassco and Richardson were not entitled to the privileges

and immunities of the MTCA. The trial court erred by finding that the doctrine of equitable

estoppel prevented Kimball Glassco and Richardson from asserting the MTCA statute of

limitations.

       II.     WHETHER THIS MATTER SHOULD BE REMANDED FOR A
               DETERMINATION OF LOIS’S COMPETENCY.

¶21.   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. In the motion, Shanks

argues that a determination of unsoundness of mind is required because, if Lois was under a



                                              11
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. Mississippi Code

Section 11-46-11(4) provides:

              From and after April 1, 1993, if any person entitled to bring any action
       under this chapter shall, at the time at which the cause of action accrued, be under
       the disability of infancy or unsoundness of mind, he may bring the action within
       the time allowed in this section after his disability shall be removed as provided
       by law. The savings in favor of persons under disability of unsoundness of mind
       shall never extend longer than twenty-one (21) years.

Miss. Code Ann. § 11-46-11(4) (Rev. 2002). To invoke this statute, 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.” Rockwell v. Preferred Risk

Mut. Ins. Co., 710 So. 2d 388 (Miss. 1998).

¶22.    We find that 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. Town of Terry v. Smith, 48 So. 3d 507,

509 (Miss. 2010). 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. See U.S. Fid. & Guar. Co. v. Conservatorship of Melson, 809 So. 2d 647, 654 (Miss.

2002). Shanks’s authority to assert Lois’s rights in this lawsuit has never been questioned. We

deny Shanks’s motion to remand for a determination of unsoundness of mind.

                                        CONCLUSION

¶23.    We hold that the trial court erred by finding that waiver and estoppel barred Kimball

Glassco and Richardson from asserting the statute of limitations under the MTCA. Shanks



                                                12
filed the complaint after the expiration of the one-year statute of limitations. Therefore, we

reverse the denial of the motion to dismiss, and render a judgment in favor of Kimball Glassco

and Richardson.

¶24.   REVERSED AND RENDERED.

      WALLER, C.J., RANDOLPH, PIERCE AND KING, JJ., CONCUR. KITCHENS,
J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED
BY CARLSON, P.J., AND LAMAR, J. DICKINSON, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION. LAMAR, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION.

       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶25.   While I agree that the doctrine of equitable estoppel4 is not applicable in this case, I

respectfully disagree with the majority’s reasoning. The majority finds that Kimball Glassco

and Richardson are not equitably estopped from asserting the Mississippi Tort Claims Act’s

(MTCA’s) one-year statute of limitations because it was the Mississippi Tort Claims Board, and

not Kimball Glassco or Richardson, that made the alleged misrepresentation. However, the

doctrine of equitable estoppel does not apply, because the board in fact never represented to the

plaintiff that Delta Community Mental Health Service (DCMHS) was not covered by the

Mississippi Tort Claims Act (MTCA).

¶26.   The Tort Claims Fund was established in accordance with Mississippi Code Section 11-

46-17, and distinguishes between “governmental entit[ies]” and “political subdivisions.”

Subsection (1) provides that “each governmental entity other than political subdivisions shall

participate in a comprehensive plan of self-insurance and/or one or more policies of liability




         4
             In his brief, the plaintiff does not address this issue, although he did raise it in the trial court.

                                                        13
insurance administered by the Department of Finance and Administration,” while subsection

(3) requires “political subdivisions” to obtain insurance or establish insurance reserves on their

own. Miss. Code Ann. § 11-46-17 (Rev. 2002) (emphasis added). “Political subdivision” is

defined as “any body politic or body corporate other than the state responsible for governmental

activities only in geographic areas smaller than the state, including but not limited to any

county, municipality, school district, community hospital . . . , airport authority, or other

instrumentality thereof . . . .” Miss. Code Ann. § 11-46-1(i) (Rev. 2002). Thus, the state has

its own claim fund separate and apart from those of its “political subdivisions,” and the

Mississippi Tort Claims Board is vested with the authority to oversee and administer this fund.

Miss. Code Ann. § 11-46-19 (Rev. 2002). While the board may “review and approve or reject

any plan of liability insurance or self-insurance reserves proposed or provided by political

subdivisions,” it does not assign claims to attorneys or purchase insurance policies for the

“political subdivisions.” Miss. Code Ann. § 11-46-19 (d),(h),(l) (Rev. 2002). See Maj. Op. n.1.

¶27.   The letter of July 28, 2006, from the MTCB simply stated that DCMHS was not covered

by the state fund under Section 11-46-17(1); it did not foreclose, or even speak to, the question

of whether DCMHS was a “governmental entity” entitled to immunity under Mississippi Code

Section 11-46-11. The text of the letter, in its entirety, stated:

       This will acknowledge receipt of your notice of claim letter directed to the
       Mississippi Department of Mental Health concerning the above referenced
       matter.

       We have been in contact with the Mississippi Department of Mental Health
       concerning this matter and advised that Delta Community Mental Health Service
       is not a state agency nor is it a department or division of the Mississippi
       Department of Mental Health.



                                                14
       For these reasons, we will unfortunately be unable to consider this claim. We
       regret we will be unable to assist you or your client any further in this respect.

The board was merely notifying the plaintiff that it would not be handling the claim, but it never

said that DCMHS was not entitled to the protections of the MTCA.5 Therefore, the plaintiff

cannot rely on the doctrine of equitable estoppel because the board did not make any

misrepresentation to the plaintiff. For these reasons, I respectfully concur in result only.

       CARLSON, P.J., AND LAMAR, J., JOIN THIS OPINION.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶28.   The majority’s claim that we employ a de novo standard of review is misleading. While

we review de novo the grant or denial of a motion to dismiss, the real issue before this Court

is whether Kimball Glassco and Richardson waived their Mississippi Tort Claims Act (MTCA)

defenses, and we review waiver issues under an abuse-of-discretion standard.6

¶29.   Kimball Glassco and Richardson raised their MTCA defenses on May 12, 2008, but

waited thirteen months to set them for hearing. The trial judge held the defenses were waived.7

Because the majority holds that the trial judge abused his discretion, I must dissent.

¶30.   The majority’s sole basis for reversing the trial judge is some alleged correspondence




         5
          The majority is correct that “a regional mental health commission is a state agency,” for
 immunity purposes, but regional mental health commissions are created, funded, and governed at
 the county level. See Miss. Code Ann. §§ 41-19-31 to 41-19-43 (Rev. 2009). Thus, DCMHS is a
 “political subdivision” that does not pay into the state Tort Claims Fund. Miss. Code Ann. § 11-46-
 17 (Rev. 2002).
         6
             See Miss. Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006).
         7
          See id. at 180 (defendant must pursue dispositive affirmative defense); Estate of Grimes
 v. Warrington, 982 So. 2d 365, 370 (Miss. 2008) (defendant must plead dispositive affirmative
 defense, bring it to court’s attention, and request hearing).

                                                  15
from defense counsel to counsel for the plaintiff. I find it ironic that, in making his ruling, the

trial judge referred to correspondence not found in the record; and the majority now relies on

that same correspondence to reverse him, even though the trial judge had the opportunity to read

the correspondence, and the majority didn’t. Because this alleged correspondence is not in the

record, I find it highly improper for us even to consider it.

¶31.   But even if the correspondence was in the record in exactly the same form as recited

within the trial judge’s order, I would still hold the trial judge did not abuse his discretion in

holding the defenses were waived. My reasons are these:

       (1)    The June 27, 2008, letter neither mentioned nor requested a hearing on the
              defenses;

       (2)    For seven months following the June 27 letter, defense counsel did
              nothing whatsoever to advance the defenses.

       (3)    In correspondence to the plaintiff’s counsel dated January 13, 2009, the
              defendants still did not request a hearing date for the defense.

       (4)    On April 6, 2009, the plaintiff served discovery on the defendants,
              including interrogatories, requests for production of documents, and
              requests for admission.

       (5)    On May 14 and May 22, 2009, the defendants served discovery responses
              on Shanks, thereby participating in the litigation. Still, no notice of a
              hearing on their affirmative defenses.

       (6)    It was not until April 8, 2009 – eleven months after the defenses were
              asserted – that counsel for the defendants first provided available hearing
              dates to plaintiff’s counsel.

       (7)    Then, the defendants waited another two months to set the matter for
              hearing.

¶32.   The question is not whether the justices on this Court think these facts amount to a

waiver; the question is whether the trial judge – having found a waiver – abused his discretion.


                                                16
I do not believe the record before us justifies a finding that he did. I would affirm the trial

judge’s holding that the defendants waived their MTCA defenses. Because the majority holds

otherwise, I respectfully dissent.




                                              17
