Lead Opinion
ON WRIT OF CERTIORARI
for the Court;
¶ 1. John Doe initiated this action on behalf of his daughter, Jane Doe (collectively Doe), after she was sexually assaulted on a Rankin County School District (RCSD) school bus, parked on the campus of Richland High School (RHS). '■ After nineteen months of discovery, the circuit
¶ 2. Based on this Court’s recent decision in Brantley v. City of Horn Lake,
FACTS AND PROCEDURAL HISTORY
¶ 3. The following facts are undisputed. On May 16, 2008, during the last “block” of Richland High School’s academic schedule, Jane Doe and several friends skipped class and met at a nearby McDonald’s. While there, Doe met other RHS students for the first time, including Bart.
¶ 4. On December 7, 2009, Doe (through her father) sued the Rankin County School District, alleging that:
1. RCSD failed to provide adequate security at the high school;
2. RCSD failed to implement reasonable measures for personal security and safety of Doe;
3. RCSD failed to warn Doe of Bart’s past sexual misconduct; and
4. RCSD failed to reasonably inspect and secure the premises from the foreseeable harm suffered by Doe.
Throughout the following year and a half, the parties engaged in extensive discovery, with both sides learning important details regarding the assault and Bart’s history of criminal and delinquent conduct. Such details involved Bart’s activity prior to his transfer to RHS, including five instances of inappropriate touching of female students, pulling a female student’s shirt down, and a 2007 sexual-battery charge involving a twelve-year-old girl. This arrest resulted in a no-contact order and
¶ 5. In August 2011, RCSD moved for summary judgment, asserting discretionary-function immunity. In Doe’s opposition to the summary-judgment motion, Doe argued that RCSD’s actions (or failure to act) were ministerial and the RCSD had failed to exercise ordinary care. Reviewing its argument in accord with the two-part, public-function test set forth in Mississippi Transportation Commission v. Montgomery,
¶ 6. Doe appealed, raising two issues: (1) whether the trial court erred in granting summary judgment premised on discretionary immunity, and (2) whether the trial court abuséd its discretion in denying the motion for reconsideration. The COA determined that RCSD was immune from liability under the public-function tests, but RCSD had waived its immunity through active participation in the litigation and its failure to timely raise the defense. The COA reversed the trial court’s ruling and remanded the case for further proceedings. On this judgment, RCSD filed its petition for writ of certiora-ri.
¶ 7. After granting RCSD’s petition for certiorari, this Court asked the parties for supplemental briefing regarding the recent opinion in Brantley v. City of Horn Lake,
¶ 8. Having considered the matter, we find RCSD did not waive immunity in this instance. And we find this case must be remanded 'to the trial court for the parties to present evidence and arguments in light of the. new test under Brantley.
STANDARD OF REVIEW
¶9. This Court reviews a trial court’s application of the MTCA as well as a trial court’s ruling on a motion for summary judgment de novo. City of Jackson v. Doe,
DISCUSSION
¶ 10. As the COA explained, governmental entities generally are afforded immunity from suit under the MTCA. Doe, — So.3d at -,
¶ 11. Traditionally, this Court has analyzed the applicability of Section 11-46-9(l)(d) by applying a two-pronged, public-policy function test, which required a determination of “whether the activity in question involved an element of choice or judgment, and if so, ... whether that choice or judgment involved social, economic, or political-policy considerations.” See Miss. Transp. Comm’n v. Montgomery,
¶ 12. Under the new test announced in Brantley, our courts must first determine whether the overarching governmental function at issue is discretionary or ministerial. Brantley,
¶ 13. Because the Court’s rules for determining discretionary-function immunity have changed greatly during the pendency of this litigation, the interest of justice demands this case be remanded for the parties to present evidence and arguments in light of the new test set forth in Brant-ley.
¶ 14. To this end, we find that RCSD did not waive its immunity defense. This case necessitated- thorough discovery of a sensitive nature, which it took reasonable time to conduct. Unlike MS Credit Center v. Horton,
¶ 15. Accordingly, we‘find that RCSD did not waive its immunity defense and may reassert the defense on remand, and the trial court may consider this defense after reviewing the case under the new test prescribed by Brantley.
CONCLUSION
¶ 16. We reverse the judgments of the Court of Appeals and the Rankin County Circuit Court and remand the case to the
¶ 17. REVERSED AND REMANDED.
Notes
. Since the alleged perpetrator is a minor, we use the pseudonym Bart in place of his actual name.
. The assault on the twelve-year-old occurred in her home. Bart was required to transfer to another school to be away from the child, which is why he began to attend RHS.
Concurrence Opinion
concurring in part and in result:
¶ 18. I join the majority’s decision to remand this case to the trial court to consider discretionary-function immunity in light of Brantley,
¶ 19. When the District moved for summary judgment based on discretionary-function immunity, the plaintiff argued that immunity did not attach to the District’s alleged misconduct. After the trial judge granted summary judgment for the District, the plaintiff "filed a motion for reconsideration under Mississippi Rule of Civil Procedure 59 and then asserted, for the first time, that the District had waived its immunity.
¶ 20. Because the plaintiff never asserted waiver before summary judgment was entered, I would find the issue of waiver is procedurally barred. We have recognized that a plaintiff may be procedurally barred from arguing that a ‘defendant waived an affirmative defense:
This Court has held that “absent extreme and unusual circumstances — an eight-month unjustified delay in the asserting and pursuing a dispositive affirmative defense, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” In order to raise such an argument before this Court, however, Anderson and Harris must have first raised this argument in the trial court — which they did not. We will not consider issues raised for the first time on appeal.4
¶ 21. And, though we have not addressed this issue in the Rule 59 context, federal courts have recognized. that our rule’s federal counterpart does not afford litigants the opportunity to present new arguments.
¶22. Justice Kitchens states that “[a] movant cannot assert that there is an ‘intervening change in controlling law5 or ‘availability of new evidence not previously available’ and not simultaneously proclaim a novel argument - which had not been ■made in the -trial court previously.” I agree. But neither intervening, authority, nor new evidence, is at issue in this case. Even Justice Kitchens, himself, argues only that Rule 59 relief was warranted based on “an apparent need to correct a clear error of the law and to prevent a manifest injustice,” which possesses no connection to the limited circumstances in which new arguments may be presented. Certainly, a litigant cannot claim manifest injustice based on his own failure to raise an argument.
RANDOLPH, P.J., JOINS THIS OPINION. WALLER, C.J., JOINS .THIS OPINION IN PART.
. Brantley v. City of Horn Lake,
. Anderson v. LaVere,
. See Westbrook v. Comm’r of Internal Revenue,
Concurrence in Part
concurring in part and dissenting in part:
¶23. I agree with the majority’s reasoning that whether the Rankin County School District was entitled to discretionary-function immunity under the Mississippi Tort Claims' Act (MTCA) should be determined by the test this Court articulated in Brantley v. City of Horn Lake,
¶ 24. John Doe, acting on behalf of his daughter, Jane Doe, filed a complaint in the Rankin County Circuit Court, naming the Rankin County School District as the defendant. On January 8, 2010, the Rankin County School District filed its answer to John Doe’s complaint, raising discretionary-function immunity under the Mississippi Tort Claims Act as its seventh affirmative defense. Subsequently, both parties engaged in discovery, including filing interrogatories and requests for production of documents. Further, the school district filed motions for extensions of time on February' 25, 2010, and on June 24, 2010, seeking more time to comply with Doe’s discovery requests. On May 19, 2010, the school district executed a subpoena duces tecum for Jane Doe’s records at the Rankin County Child Advocacy Center. The Rankin County Circuit Court entered an agreed order on September 1, 2010, allowing the release of Bart’s youth court records.
¶ 25. The majority finds, in the absence of citation, that the school district did not waive its discretionary-function immunity defense, because. [t]he “case necessitated thorough discovery of a sensitive nature, which it took reasonable time to conduct.” Maj. Op. at f 14. The Mississippi Legislature has determined that governmental entities and their employees are exempt from liability in. certain situations outlined in the MTCA. Miss.Code Ann. § 11-46-9 (Rev. 2012). “This, exemption, like that of qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense to .liability and, therefore, should be resolved at the earliest possible stage of litigation.” Mitchell v. City of Greenville,
. ¶ 26. In MS Credit Center, Inc. v. Horton,
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.
Horton,
¶ 27. In Grimes, this Court considered whether the failure of the defendant physician to assert a defense of immunity under the MTCA for five years, during which time the defendant physician actively participated- in the litigation process, constituted a waiver under Horton. Grimes,
¶ 28. Similarly, in Horton, we held that, by waiting eight months to assert its right to compel arbitration and by participating in the litigation process, a defendant had waived this affirmative defense as a matter of law. Horton,
¶ 29. In this case, the Rankin County School District actively participated iri discovery, as evidenced by, inter alia, its engaging in seven witness depositions, its obtaining and executing a subpoena duces tecum for Jane Doe’s Rankin County Child Advocacy Center records, its requesting the release of Bart’s youth court records, its answering interrogatories, its responding to documents requests, its requesting two extensions to comply with discovery requests, and its entering into an agreed scheduling order. Significantly, nineteen months elapsed between the point in time when the Rankin County School District asserted discretionary-function immunity as an affirmative defense in its answer and its filing a motion for summary judgment, requesting judgment as a matter of law on the basis of this defense. Thus, the majority errs in determining that the school district did not waive its immunity defense.
¶ 30. Moreover, the majority errs in determining that the school district’s belated' motion for summary judgment was justified because “[t]his case necessitated thorough discovery of a sensitive nature.” Maj. Op. at ¶ 14. But thé school district, in its answer filed just over one month after the filing of Doe’s complaint, pled as an affirmative defenses “all applicable provisions of the'Mississippi Tort Claims Act,” “all defenses and limitations listed in 11-46-9,” and “defenses of discretionary, executive, and/or legislative authority, function, and/or duty,” The school district then, nineteen months later and after having participated actively in the litigation, moved for summary judgment, arguing entitlement to discretionary-function immunity pursuant to the Mississippi Tort Claims Act. The nature of an affirmative defense assumes that, even if the plaintiff “proves everything he alleges and asserts, even so, the defendant wins.” Hertz Commercial Leasing Div. v. Morrison,
¶ 31. Justice Dickinson’s concurrence asserts that a plaintiff is barred from asserting the Horton doctrine for the first time in a Rule 59(e) motion for reconsideration, as Doe did here. This Court reviews a trial court’s denial of a Rule 59 motion under an abuse-of-discretion standard. Bang v. Pittman,
¶ 32. Certainly, the better practice would have been for Doe to have advanced his Horton argument in his response to
¶ 33. A Rule 59(e) motion is substantially different from a Rule 60(b) motion. Bruce v. Bruce,
¶ 34. In this case, .there was “an apparent need to correct a clear error of the law and to prevent a manifest injustice.” See id. The trial court erroneously granted summary judgment in favor of the school district on the basis of an affirmative defense that it had waived by waiting nineteen months between filing its answer and asserting the' defense in a motion for summary judgment. As a matter of law, under Horton and its progeny, the school district was not entitled to summary judgment. See Horton,
¶ 35. In sum, I agree with the majority’s holding that whether Rankin County School District was entitled to discretionary-function immunity under the Mississippi Tort Claims Act (MTCAJ should be determined by the test this Court articulated in Brantley v. City of Horn Lake,
LAMAR AND KING, JJ., JOIN THIS OPINION.
. Section 43-21-261 of the Mississippi Code governs disclosure of youth court records and states that:
[RJecords involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure, Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the function of the youth court.
Because of this statutory prohibition against revealing the contents of youth court records and because youth court records are at issue in this case, the pseudonym Bart, instead of