Jones Family Medicine Clinic PLLC, Bay Springs Medical Clinic PLLC, JFMC The Q LLC, JFMC Ellisville LLC, JFMC Heidelberg LLC, and JFMC Taylorsville LLC v. Amanda Landrum McCallum, 2024-CA-01332-COA

McCallum entered an employment contract with JFMC and its satellite clinics in 2018, and JFMC later sued her for breach of contract and to enforce a noncompete and liquidated-damages provisions. 1
McCallum answered in 2019 without pleading unconscionability, then later filed an amended answer in 2021 asserting unconscionability as a defense. 2
The parties conducted extensive litigation, including depositions, subpoenas, written discovery, hearings, and repeated motions to compel. 3
In June 2023, McCallum moved for summary judgment, arguing the employment agreement was procedurally and substantively unconscionable and unenforceable. 4
The county court granted summary judgment for McCallum, but the circuit court affirmed; JFMC appealed. 5
The Court of Appeals reversed and remanded for a trial on the merits, holding that McCallum waived the unconscionability defense by delaying its pursuit while actively litigating. 6

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did McCallum waive unconscionability as an affirmative defense? 7	JFMC said McCallum waited too long while actively litigating.	McCallum said discovery delays and COVID justified the delay.	Yes; the defense was waived, so summary judgment was improper. 8
Should the contract's unconscionability be reached on the merits? 9	JFMC argued the contract was not unconscionable.	McCallum argued the contract was unenforceable.	No; the court reversed on waiver and remanded for trial. 10

Byram Cafe Grp. LLC v. Tucker, 344 So. 3d 844 (Miss. 2022) (summary judgment is reviewed de novo 11)
Todd v. First Baptist Church of W. Point, 993 So. 2d 827 (Miss. 2008) (summary judgment is reversed if triable material facts exist 12)
Cook v. Taylor, 324 So. 3d 333 (Miss. Ct. App. 2021) (waiver of an affirmative defense is reviewed for abuse of discretion 13)
MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) (unjustified delay plus active litigation can waive an affirmative defense 14)
Sanderson v. Sanderson, 170 So. 3d 430 (Miss. 2014) (unconscionability is measured when the agreement is executed 15)
Murphy v. William Carey Univ., 382 So. 3d 1181 (Miss. Ct. App. 2024) (waiver found where an affirmative defense was not timely raised while actively litigating 16)