Background
Amanda McCallum entered into an employment agreement with Jones Family Medicine Clinic PLLC and five affiliated clinics in June 2018. After the employment relationship ended in June 2019, the clinics sued McCallum for breach of contract, seeking to enforce a covenant not to compete and recover $10,000 in liquidated damages for training and career-related expenses.
McCallum answered the original complaint in October 2019 and asserted thirteen affirmative defenses, but not unconscionability. She first pleaded unconscionability in January 2021, after the clinics filed an amended complaint, and moved for summary judgment on that defense in June 2023. The county court held that the employment agreement was procedurally and substantively unconscionable and granted summary judgment to McCallum. The circuit court affirmed.
The Court’s Holding
The Mississippi Court of Appeals reversed, holding that McCallum waived unconscionability as an affirmative defense by failing to raise and pursue it in a timely and reasonable manner while actively participating in the litigation. She waited approximately fifteen months after her original answer to plead the defense and forty-four months after that answer to seek summary judgment on it.
The court concluded that the county court erred by granting summary judgment on a waived defense. It did not decide whether the employment agreement was actually unconscionable or resolve the clinics’ remaining appellate arguments. The court reversed the circuit court’s affirmance and remanded the case to the county court for a trial on the merits.
Key Takeaways
- An affirmative defense may be waived when a party fails to raise and reasonably pursue it while actively participating in litigation.
- Pleading unconscionability in an amended answer did not preserve the defense where McCallum waited substantially longer to seek dispositive relief based on it.
- The decision addresses waiver, not the substantive enforceability of the employment agreement, and sends the clinics’ claims back for trial.
Why It Matters
The ruling underscores that Mississippi litigants must do more than eventually plead a potentially case-ending affirmative defense: they must assert and pursue it without unjustified delay. Active participation in discovery, motion practice, depositions, and hearings can support waiver when the defense is not timely advanced.
The divided en banc decision also highlights disagreement over how courts should assess delay. The dissent would have deferred to the county court and treated the COVID-19 pandemic and the clinics’ alleged discovery delays as sufficient justification for McCallum’s timing.