Rule 8 of the Mississippi Rules of Civil Procedure requires that a party filing an Answer to a Complaint include any affirmative defense he has to the Complaint.

Affirmative defenses include, but are not limited to, accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

The same Rule applies to a party responding to a cross-claim or counterclaim.

As a general rule, the failure to include an affirmative defense in when responding to a claim will result in the waiver of that defense.

In addition, there are situations in which a party can waive an affirmative defense even if it was included in the party’s answer.

“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 Center, Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006).

Conversely, it is possible to resuscitate an affirmative defense that was not raised in an answer.

In Stratton v. McKey, 298 So. 3d 999, 1006 (Miss. 2020), the Court permitted an affirmative defense of statute of limitation that was raised by a motion for summary judgment by Stratton when McKey did not advance a waiver theory at that time. In effect, McKey waived Stratton’s waiver.

Similarly, the Mississippi Supreme Court has refused to reverse a lower court ruling based on failure to plead an affirmative defense when the issue was tried in the lower court without objection at that time.

Best practice: If a party has an affirmative defense, include it in an answer and, if the defense would resolve all or a significant part of the case, file a motion and bring it on for hearing.

S. Craig Panter

Panter Law Firm, PLLC

601-607-3156

www.craigpanterlaw.com