Alcatec LLC and Rosemary Barbour v. The Jones Group of Mississippi LLC and Gennie Lacy Jone

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01590-COA

ALCATEC LLC AND ROSEMARY BARBOUR APPELLANTS

v.

THE JONES GROUP OF MISSISSIPPI LLC AND APPELLEES
GENNIE LACY JONES

DATE OF JUDGMENT: 10/10/2018
TRIAL JUDGE: HON. JOSEPH ANTHONY SCLAFANI
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: MICHAEL A. HEILMAN
JOHN WILLIAM NISBETT
EDWARD TAYLOR POLK
DANIEL J. HAMMETT
ATTORNEYS FOR APPELLEES: JAMES D. BELL
JAY MARSHALL ATKINS
CANDICE CAROL HARGETT
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND REMANDED - 05/26/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Alcatec LLC and Rosemary Barbour (collectively, Alcatec) filed a complaint against

The Jones Group of Mississippi LLC, Gennie Lacy Jones, and Mainstream Software Inc.1

(collectively, The Jones Group) seeking to recover damages stemming from Alcatec’s

contract with the United States Government. The Jones Group filed a motion for summary

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Mainstream Software Inc. was eventually dismissed as a defendant and is not a party
to this appeal.
judgment, which the circuit court granted.

¶2. Alcatec now appeals, asserting the following assignments of error: (1) the circuit court

abused its discretion in allowing The Jones Group to amend its answer and include the

affirmative defense of collateral estoppel; and (2) the circuit court erred in granting The

Jones Group’s motion for summary judgment after finding that Alcatec’s claim was barred

by collateral estoppel and the “doctrine of superseding intervening cause.”

¶3. After our review, we find that the circuit court abused its discretion in allowing The

Jones Group to amend its answer and include the affirmative defense of collateral estoppel.

We therefore reverse the circuit court’s order granting summary judgment in favor of The

Jones Group and we remand this case for further proceedings consistent with this opinion.

FACTS

¶4. Rosemary Barbour is the sole owner and managing member of Alcatec. After

Hurricane Katrina, the Department of Homeland Security and the Federal Emergency

Management Agency (FEMA) contracted with Alcatec to maintain temporary housing units

throughout the region impacted by Hurricane Katrina. The contract required Alcatec to

coordinate the delivery, setup, maintenance, and disconnection of temporary housing units.

Per the terms of the contract, Alcatec was required to perform monthly inspections referred

to as preventative maintenance inspections (PMIs) on the housing units, perform

maintenance on the housing units, respond to emergency calls, and deactivate the housing

units when they were taken out of service. Alcatec was also required to use detailed service

protocols, including methods to document and order the setup, maintenance, inspection, and

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disconnection of the housing units.

¶5. Alcatec contracted with The Jones Group to assist with the contract and to handle

technology and database issues. The Jones Group was tasked with operating a “call center”

to receive all work orders for routine or emergency maintenance requests, as well as requests

for deactivations of housing units. Alcatec also requested that The Jones Group identify a

computer software program to track the life cycle of the PMI work orders. According to

Alcatec, The Jones Group recommended CrossForms software by Mainstream Software Inc.

Alcatec accordingly purchased the software. Gennie Jones, the owner of The Jones Group,

testified during her deposition that The Jones Group was responsible for inputting all of the

FEMA trailers into the CrossForms system.

¶6. Alcatec alleged that The Jones Group committed numerous errors in keeping track of

the PMIs and work orders. Alcatec claimed that these errors led to duplicate entries being

made into CrossForms and resulted in FEMA being double billed for duplicate inspections.

Gennie Jones tendered The Jones Group’s ninety-day notice of resignation to Alcatec in

January 2007. On January 29 or 30, 2017, Alcatec terminated its relationship with The Jones

Group.

¶7. On February 8, 2008, Alcatec filed a complaint against FEMA alleging breach of

contract and seeking payment of $3,846,471.69 for services rendered under the contract that

were unrelated to the monthly PMIs. FEMA then filed a counterclaim against Alcatec

alleging fraudulent billing practices.

¶8. In an order entered on August 24, 2011, the United States Court of Federal Claims

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ruled in favor of FEMA. Alcatec LLC v. United States, 100 Fed. Cl. 502 (2011). Relevant

to the matter before us, the federal court observed that in November 2006, the number of

completed PMIs decreased dramatically. Id. at 510. Barbour claimed that The Jones Group

must have lost the PMI checklists, but Jones asserted that The Jones Group had not lost the

checklists. Id. at 510-11. The federal court found that after Alcatec fell behind in

performing the required monthly PMIs, Barbour then adopted a new system for completing

PMIs and a “chaotic billing scheme that made it difficult for FEMA to detect inaccuracies

in Alcatec’s billing.” Id. at 518. The federal court acknowledged that Jones, “who was

initially charged with ‘tracking the life cycle of a particular work order,’ . . . testified that one

of the reasons that [T]he Jones Group terminated its contract with Alcatec was that she was

not comfortable with this new tracking process[.]” Id. The federal court determined that

Alcatec’s new system “was not in conformance with the terms of the contract, which called

for monthly PMIs, . . . but Alcatec continued the practice throughout the course of the

contract[.]” Id.

¶9. The federal court ultimately determined that Alcatec knowingly submitted fraudulent

claims with the specific intent to deceive FEMA. Id. at 521, 529. The federal court

explained that

the evidence shows Ms. Barbour actually was aware of irregularities in
Alcatec’s invoices and general practices. She was the one who instituted the
out-of-month billing procedure. She also was the person who refused at first
to send FEMA a Microsoft or Excel copy of her invoices so that FEMA could
more easily review her invoices for duplications, an act in violation of
Alcatec’s contract, and who faxed lengthy backup documentation to FEMA in
the middle of the night without warning[.]

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Id. at 523 (citations omitted). The federal court further determined that “Barbour was the

primary contact for the Jones Group regarding invoicing . . . [and that she] was directly

involved in what Ms. Jones considered a discrepancy in the number of PMIs that the Jones

Group reported as complete and the number they received ‘on the spreadsheet from Ms.

Barbour.’” Id. at 523-24. As a result, the federal court held that Alcatec forfeited the unpaid

balance of $3.8 million under the contract and assessed Alcatec with $77,000 in penalties and

$275,050 in damages. Id. at 529. The United States Court of Appeals for the Federal Circuit

affirmed this decision on July 11, 2012. Alcatec LLC v. United States, 471 F. App’x 899,

900 (Fed. Cir. 2012) (per curiam).

¶10. On August 7, 2014, Alcatec filed a complaint in the Rankin County Circuit Court

against The Jones Group seeking to recover “all lost income and lost benefits under the

FEMA Contract,” the “penalties assessed by the Government,” loss of earning capacity as

a result of being barred from future business with the Government, as well as emotional

distress damages and punitive damages. Alcatec claimed that the “damages were the result

of [The Jones Group’s] failures in connection with their provision of services.”

¶11. The Jones Group filed its answer and cross-claim on October 15, 2014, asserting

several defenses. The Jones Group asserted that its principal place of business was in Hinds

County and accordingly moved to change the venue to Hinds County. The Jones Group also

moved to dismiss Alcatec’s complaint, arguing that the statutory limitations period had run.

The Jones Group filed a memorandum in support of their Mississippi Rule of Civil Procedure

12(b)(3) motion to dismiss for improper venue or, in the alternative, motion to change venue.

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On February 6, 2015, the Rankin County Circuit Court transferred the case to the Hinds

County Circuit Court.

¶12. On June 15, 2015, The Jones Group filed a Mississippi Rule of Civil Procedure

12(b)(6) motion to dismiss Alcatec’s complaint. The Jones Group argued that Alcatec’s

claims for breach of contract were barred by the three-year statute of limitations. The Jones

Group also asserted that the claims against Gennie Jones failed because she was not a party

to the contract. The Jones Group further asserted that Rosemary Barbour was not a party to

the contract and therefore not entitled to recover any damages. In its motion, The Jones

Group referenced the order from the Court of Federal Claims.

¶13. On October 26, 2015, the Hinds County Circuit Court denied The Jones Group’s

motion to dismiss after finding that Alcatec’s claim was not barred by the statute of

limitations. The circuit court’s order reflects that the statutory limitations period for

indemnity under the contract between Alcatec and The Jones Group did not begin to run until

the federal court of appeals entered its final judgment on July 11, 2012. The Hinds County

Circuit Court accordingly held that Alcatec’s suit, which was filed on August 7, 2014, was

filed within three years of both the federal claim court’s initial ruling and the appellate

court’s affirmance as to liability. The Hinds County Circuit Court further held that Gennie

Jones may be personally liable to Alcatec if she had made an intentional misrepresentation;

that Rosemary Barbour is an intended third-party beneficiary of the contract; and that because

Alcatec asserted fraudulent concealment, they may have a claim for intentional infliction of

emotional distress and punitive damages.

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¶14. Both parties then commenced with discovery.

¶15. On September 26, 2017, The Jones Group filed a motion to amend their answer. In

their motion, The Jones Group alleged that on April 19, 2017, Alcatec produced their second

supplemental responses to The Jones Group’s first set of interrogatories. The Jones Group

asserted that upon receiving this discovery response, it determined that Alcatec did not have

any new information or evidence against The Jones Group that it had not previously argued

and presented to the Court of Federal Claims. The Jones Group accordingly sought leave to

amend their answer and plead the affirmative defense of res judicata and/or collateral

estoppel in relation to the Court of Federal Claims opinion.

¶16. Alcatec filed its response in opposition to The Jones Group’s motion to amend its

answer, arguing that Mississippi Rule of Civil Procedure 8(c) requires a defendant to plead

affirmative defenses in its answer, or those defenses, including res judicata and collateral

estoppel, are waived. Alcatec asserted that Gennie Jones was a witness before the Court of

Federal Claims and that therefore The Jones Group knew of the Court of Federal Claims

opinion when Alcatec filed its suit.

¶17. On February 1, 2018, The Jones Group filed a motion for summary judgment and

argued the following: (1) Barbour’s fraudulent conduct, and not the conduct of The Jones

Group, was the sole and proximate cause of Alcatec’s damages; (2) Barbour’s conduct was,

at the very least, the superseding cause of Alcatec’s damages; and (3) Alcatec is estopped

from re-arguing this matter because the issue of causation had already been thoroughly

litigated before the Court of Federal Claims.

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¶18. Alcatec filed a motion opposing summary judgment and requested that the circuit

court strike The Jones Group’s motion for summary judgment or stay briefing on the motion

pending the circuit court’s ruling on The Jones Group’s motion to amend its answer. In its

motion, Alcatec argued that The Jones Group could not assert collateral estoppel because

they were neither a party nor in privity with a party to the case in the Court of Federal Claims

and that the essential elements of collateral estoppel have not been met. Alcatec also argued

that genuine issues of material fact existed as to whether The Jones Group’s conduct

proximately caused Alcatec’s damages. Alcatec further submitted that Barbour’s conduct

did not qualify as a superseding intervening cause.

¶19. On June 14, 2018, the circuit court entered an order allowing The Jones Group to

amend its answer to plead res judicata and collateral estoppel. Thereafter, The Jones Group

filed its amended answer asserting that Alcatec’s claim was barred by res judicata and/or

collateral estoppel based upon the prior holding of the Court of Federal Claims. The Jones

Group then filed a motion renewing its motion for summary judgment.

¶20. After a hearing on the matter, the circuit court entered an order on October 10, 2018,

granting The Jones Group’s motion for summary judgment and dismissing Alcatec’s

complaint with prejudice. The circuit court found that the doctrine of defensive collateral

estoppel barred Alcatec from relitigating the issue of whether Barbour perpetrated a

fraudulent scheme to submit duplicate invoices to FEMA for payment. The circuit court also

determined that each of the six factors for determining whether a particular intervening force

can be classified as a superseding cause “weighs in favor of a finding that Barbour’s

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intentional and fraudulent conduct was an intervening and superseding cause of the damages

that are the subject of [Alcatec’s] complaint.” The circuit court further held that the damages

sought by Alcatec “are not attributable to the Jones Group’s performance or breach of any

duty under the [c]ontract. Rather, the damages . . . are the result of the scheme to defraud the

Government effectuated by Barbour.”

¶21. Alcatec now appeals from the following orders: (1) the Rankin County Circuit Court’s

order transferring venue to the Hinds County Circuit Court, First Judicial District;2 (2) the

Hinds County Circuit Court’s order granting The Jones Group’s motion to amend its answer

and denying Alcatec’s motion to strike The Jones Group’s motion for summary judgment or

alternatively to stay and for expedited hearing on The Jones Group’s motion to amend its

answer; and (3) the Hinds County Circuit Court’s order granting The Jones Group’s motion

for summary judgment. Alcatec also seeks to appeal “any other appealable order in this

action.”

DISCUSSION

¶22. Alcatec argues that the circuit court abused its discretion in granting The Jones

Group’s motion to amend their answer and add the affirmative defense of collateral estoppel.

Alcatec maintains that prior to The Jones Group filing their motion to amend, the parties had

actively litigated this case for nearly four years. Alcatec further asserts that pursuant to Rule

8(c), The Jones Group waived the defense of collateral estoppel by failing to plead it and by

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Although Alcatec’s notice of appeal reflects that Alcatec appealed from this order,
Alcatec’s arguments on appeal center solely around the following two orders: the circuit
court’s order allowing The Jones Group to amend its answer and the circuit court’s order
granting summary judgment.

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actively participating in this litigation for years before moving to amend their answer.

Alcatec maintains that The Jones Group possessed awareness of the 2011 Court of Federal

Claims opinion at the time The Jones Group filed its initial answer and therefore should have

pled res judicata and collateral estoppel at that time.

¶23. The Jones Group argues, however, that in its initial answer, it asserted various

affirmative defenses and reserved “the right to affirmatively plead any and all other defenses

available to them which may become applicable through discovery and during the trial of this

cause.” The Jones Group maintains that after conducting discovery and reviewing the

responses and documents produced, The Jones Group determined that Alcatec did not have

any new information or evidence against The Jones Group that it had not previously argued

and presented to the Court of Federal Claims.

¶24. We review a trial court’s decision to grant or deny a motion to amend a pleading for

an abuse of discretion. Bailey Brake Farms Inc. v. Trout, 116 So. 3d 1064, 1069 (¶19) (Miss.

2013). Mississippi Rule of Civil Procedure 15(a) provides:

A party may amend a pleading as a matter of course at any time before a
responsive pleading is served, or, if a pleading is one to which no responsive
pleading is permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within thirty days after it is
served. . . . Otherwise a party may amend a pleading only by leave of court or
upon written consent of the adverse party; leave shall be freely given when
justice so requires.

¶25. Additionally, Mississippi Rule of Civil Procedure 8(c) states that “[i]n pleading to a

preceding pleading, a party shall set forth affirmatively” collateral estoppel and res judicata.

State ex rel. Moore v. Molpus, 578 So. 2d 624, 641 (Miss. 1991) (holding that collateral

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estoppel and res judicata are affirmative defenses that are waived if not timely pled). The

supreme court has held that “generally, if a party fails to raise an affirmative defense in its

original answer, the defense will be deemed waived.” Hutzel v. City of Jackson, 33 So. 3d

1116, 1119 (¶12) (Miss. 2010). “This rule aids in this Court’s effort to ensure judicial

efficiency and the expeditious resolution of disputes . . . [and] gives parties incentive to be

more diligent in submitting defenses.” Id. (citation and internal quotation marks omitted).

¶26. The record before us contains an email correspondence between counsel for both

parties discussing The Jones Group’s motion to amend its answer. Counsel for The Jones

Group emailed counsel for Alcatec and informed Alcatec of its intention to file a motion to

amend its answer to include the affirmative defenses of res judicata and collateral estoppel.

The email stated as follows:

We plan to file a [m]otion to [a]mend [c]omplaint to raise additional defenses
regarding punitive damages, res judicata and/or collateral estoppel, and
intervening and/or superseding cause. As you may recall, the original [a]nswer
was filed by Judge Bell prior to our involvement in this matter and before we
had more information regarding [the plaintiff’s] specific allegations against
The Jones Group and Ms. Jones. Please advise if you will oppose the [m]otion
so we can advise the judge.

Counsel for Alcatec responded via email, “Do you mean to amend the answer? If you plan

to amend answer I have no objection to the motion.”

¶27. At the hearing on The Jones Group’s motion to amend its answer, the circuit court

referenced the email correspondence and stated to Alcatec’s counsel that “if you represented

to defense counsel that you had no objection, . . . that’s binding on you. What is your view

on why your agreement in writing is not binding?” Counsel for Alcatec then explained as

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follows:

Well, the e-mail forwarded to me was that . . . they were going to amend their
complaint. . . . When they did that, honestly I don’t know where I was when
I responded to it, whether I was sitting in my office or looking on my cell
phone looking at that e-mail. But generally I don’t have an objection to a
general amendment of an answer. But when it deals with affirmative-type
claims, I want to see them before I make a response. When I saw amend the
complaint, I think my comment was “Amend the—You mean you want to
amend your answer.” “If you want to amend your answer, I'm okay with that.”
I was not okay with adding affirmative defenses and things of that nature. I’d
want to see those before I . . . agree to affirmative defenses, particularly
affirmative defenses . . . like collateral estoppel and res judicata three and a
half years into a case. So . . . if they wanted to amend the responses
to—specific responses to the complaint in terms of amending their answer,
that’s fine. Affirmative defenses are different. I don’t think I saw or read the
entire e-mail when I went through that. I knew they didn’t file a complaint and
so I was clarifying what—you know, what it is that they were doing. . . . And
I think that was an error on my part. And once I realized that they were
asserting and saw what they were trying to do, I felt like I had no choice . . . .

The circuit judge assured counsel for Alcatec that he understood what he was saying, but the

circuit judge explained that “what the [c]ourt has before it in an e-mail would indicate that

the plaintiff has no objection.” The circuit judge recognized that “a party has the right to

amend a pleading upon a showing of good cause.” The circuit judge stated that according

to its motion to amend, The Jones Group “learned through discovery that collateral estoppel

and res judicata would be issues,” but the circuit judge also stated that he had “some

question” about that assertion.

¶28. Interestingly, the circuit court held, “It seems pretty clear to the [c]ourt that based on

the complaint that was filed in 2014, the federal litigation was part of [Alcatec’s] complaint

and part of the background in this case and [The Jones Group] knew about it.” The circuit

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court also held that it was “of the view that some of the defenses that [The Jones Group][3]

raised in their initial answer . . . referenced, while not directly, the wrongdoing of the

plaintiff which was the holding in part of the federal court.” The circuit court specifically

referred to The Jones Group’s tenth defense in its initial answer, which stated, “[Alcatec’s]

claims are barred in whole or in part because [Alcatec] alleged damages are the result of their

own actions, actions which were the proximate cause of [Alcatec’s] alleged damages.” The

circuit court accordingly determined that “the issues of collateral estoppel that are being

sought to be raised here are implicated by the tenth defense that was already raised in the

initial answer.” The circuit court therefore granted The Jones Group’s motion to amend its

answer, explaining that it was doing so for multiple reasons: “because the Court is of the

view that [Alcatec] indicated that they would have no objection to it; and, second, because

the issue of the finding of the federal court of wrongdoing on the behalf of [Alcatec] was

raised in the initial answer filed in October of 2014.” The circuit court also stated that it was

exercising “its general discretion under the rules to allow parties to freely amend the

pleadings.”

¶29. In Hutzel, 33 So. 3d at 1119 (¶11), the plaintiff argued that the trial court erred in

allowing the defendant to amend its answer two years later to assert the affirmative defenses

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The circuit court actually stated, “It seems pretty clear to the [c]ourt that based on
the complaint that was filed in 2014, the federal litigation was part of your complaint and
part of the background in this case and plaintiff knew about it.” The circuit court also held
that it was “of the view that some of the defenses that plaintiff raised in their initial answer,
Docket Number 7 filed October 14, referenced, while not directly, the wrongdoing of the
plaintiff which was the holding in part of the federal court[.]” However, based on our
reading of that section of the transcript, it seems that the circuit court inadvertently said
“plaintiff” on several occasions when meaning “defendant,” referring to The Jones Group.

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of release and accord and satisfaction when the defendant failed to assert the defenses in its

initial answer. On appeal, the supreme court found that when the defendant filed its initial

answer, it raised several affirmative defenses. Id. at 1120 (¶17). However, the defendant had

failed to raise the specific affirmative defenses of release and accord and satisfaction until

over two years later. Id.

¶30. The Hutzel court discussed its prior ruling in MS Credit Center Inc. v. Horton, 926 So.

2d 167, 180 (¶44) (Miss. 2006), where the supreme court found: “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.” The Horton

court explained that “a party does not have an established number of days within which he

or she must raise an affirmative defense,” but it held that absent any “extreme and unusual

circumstances which prohibit the party from asserting the defense,” the eight-month

unjustified delay in Horton, “coupled with active participation in the litigation process,

constitutes waiver as a matter of law.” Id. at 1119-20 (¶13) (citing Horton, 926 So. 2d at

181 (¶45)). The Horton court specifically stated that its holding was not limited just to the

assertion of the right to compel arbitration, but rather should be “taken as the general rule for

all affirmative defenses.” Id. at 1120 (¶14) (citing Horton, 926 So. 2d at 180 (¶44)).

¶31. The Hutzel court then applied its prior ruling from Horton and found that the

defendant’s two-year delay in raising its affirmative defenses “is three times the length of

delay in Horton . . . and thus satisfied the delay element.” Id. at (¶17).

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¶32. As to the element of active participation, the supreme court stated that “it is not

evident from the record that the [defendant] engaged in extensive pretrial practice.” Id. at

(¶18). However, the supreme court found that “both parties did participate in discovery by

filing interrogatories and requests for production of documents.” Id. The supreme court held

that the defendant’s “filing of its initial answer . . . , coupled with its participation in the

discovery process . . . , sufficiently establish that the [defendant] actively participated in the

litigation.” Id. at 1121 (¶18). The supreme court found “no unusual or extreme

circumstances” in the record to explain the defendant’s failure to timely assert its affirmative

defenses. Id. at (¶19). Rather, “[t]he only argument presented by the [defendant] is that the

affirmative defenses did not become apparent until well into discovery[.]” Id. The supreme

court found this assertion unpersuasive, explaining that the record revealed that the defendant

“actually drafted the quitclaim deed, the foundation of its affirmative defenses, and had

received it from [plaintiff] well before the commencement of this action.” Id. The supreme

court therefore had no doubt that the defendant “knew about the contents of a document that

it had drafted and had in its possession.” Id. Accordingly, the supreme court held that “no

reasonable explanation accounts for the [defendant’s] failure to assert the affirmative

defenses punctually.” Id.

¶33. The Hutzel court then set forth that “when reviewing a trial court’s decision to grant

or deny a party’s request to amend pleadings pursuant to Rule 15 over an objection grounded

in Rule 8(c), this Court will adhere to the rule expressed in Horton, giving full effect to the

mandatory language of Rule 8(c).” Id. at 1122 (¶24). The supreme court ultimately held that

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“pursuant to Horton and Rule 8(c), because the [defendant] actively participated in the

litigation and has no reasonable explanation for its twenty-six month delay in raising the

affirmative defenses, the [defendant] has waived its right to assert release and accord and

satisfaction.” Id. at (¶20). The supreme court therefore found that the trial court abused its

discretion in allowing the defendant to amend its answer. Id. at (¶25).

¶34. In Charlot v. Henry, 45 So. 3d 1237, 1243 (¶21) (Miss. Ct. App. 2010), the defendant

argued that the chancellor abused its discretion by not allowing her to amend her answer to

plead the affirmative defense of adverse possession. In that case, the chancellor denied the

defendant’s request to amend her answer to plead the affirmative defense of adverse

possession after the chancellor determined that the “claim of adverse possession was ripe at

the time the original complaint was served.” Id. at 1244 (¶24). On appeal, this Court applied

the supreme court’s holding in Hutzel and found that the defendant “offered no credible

reason for the six-month delay between the filing of her answer and the filing of her motion

to amend the answer to raise the affirmative defense of adverse possession.” Id. at 1246

(¶29). This Court found that the defendant’s excuse for her delay in filing her motion to

amend her answer “was that she was unsure what property was involved in the lawsuit.” Id.

This Court agreed with the chancellor’s finding that the defendant’s reason for the delay was

“spurious,” explaining that the plaintiff’s complaint “specifically described the disputed

property by a clear deraignment of title and by a survey by a registered surveyor and an

affidavit by the surveyor.” Id. This Court found that “[t]he affirmative defense of adverse

possession would have existed prior to the filing of the lawsuit, so it was not a fact which

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would have been found only through discovery.” Id. This Court therefore held that

chancellor did not abuse her discretion by denying the defendant’s motion to amend her

answer to assert the affirmative defense of adverse possession after finding that the defendant

waived the defense. Id.

¶35. In the case before us, The Jones Group filed its initial answer October 15, 2014. As

stated, in its initial answer, The Jones Group asserted various affirmative defenses and

reserved “the right to affirmatively plead any and all other defenses available to them which

may become applicable through discovery and during the trial of this cause.” On September

26, 2017, nearly three years after filing its initial answer, The Jones Group filed its motion

to amend its answer, seeking to add the affirmative defenses of res judicata and collateral

estoppel. In Hutzel, the supreme court found that the defendant’s two-year delay in raising

its affirmative defenses “satisfie[d] the delay element.” Id. at 1120 (¶17).

¶36. As to the element of active participation, the record shows that The Jones Group filed

its initial answer, as well as a motion to dismiss and a motion to change venue, and also

participated in discovery. In July 2016, the Jones Group propounded interrogatories and

requests for production of documents to Alcatec. In December 2016, The Jones Group

served their responses to Alcatec’s interrogatories and request for production of documents.

In January 2017, The Jones Group filed a motion to compel Alcatec to fully respond to The

Jones Group’s first set of interrogatories and the requests for production of documents. The

Jones Group also filed a motion for the circuit court to set the matter for trial and for entry

of a scheduling order. In March 2017, The Jones Group filed a motion to compel Alcatec’s

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discovery responses and a motion for sanctions. In April 2017, The Jones Group filed a

notice of hearing to set the hearing for their motion to compel and for sanctions. In July

2017, The Jones Group filed another notice of discovery, serving interrogatories, requests

for production of documents, and requests for admissions to Alcatec. In August 2018, the

parties deposed Gennie Jones.

¶37. In Hutzel, the supreme court found that the defendant actively participated in the

litigation where the defendant filed its initial answer and participated in discovery by “filing

interrogatories and requests for production of documents.” Hutzel, 33 So. 3d at 1120 (¶18).

Likewise, we find that the record shows that The Jones Group actively participated in the

litigation herein.

¶38. The Hutzel court next examined the record for any “unusual or extreme

circumstances” to explain the defendant’s failure to timely assert its affirmative defenses, but

it found none. Id. at (¶19). The supreme court found that the defendant instead argued that

“the affirmative defenses did not become apparent until well into discovery[.]” Id. As

stated, The Jones Group based its request to amend its answer on Alcatec’s responses and

assertions set forth in their second supplemental responses to The Jones Group’s first set of

interrogatories, which the Jones Group received in April 2017. In its appellate brief, The

Jones Group explains that it initiated written discovery to obtain specific information

regarding the general allegations Alcatec raised in its complaint against The Jones Group.

The Jones Group asserts that after reviewing Alcatec’s discovery responses and document

production, “it became evidently clear that Alcatec did not have any new information and/or

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evidence against [The Jones Group] that was not previously argued and presented to the

federal court.” The Jones Group maintains that it then accordingly advised counsel for

Alcatec that it planned to move to amend it answer to include the affirmative defenses of res

judicata and/or collateral estoppel.

¶39. Our review of the record clearly shows that The Jones Group knew about the 2011

Court of Federal Claims opinion at the time it filed its initial answer. As stated, the federal

court opinion reflects that Jones testified as a witness in that matter and refuted allegations

that The Jones Group was involved in or responsible for defrauding FEMA. Furthermore,

in its June 15, 2015 motion to dismiss the complaint based on the statute of limitations, The

Jones Group referenced the opinion from the Court of Federal Claims. At the hearing on The

Jones Group’s motion to amend its answer, the circuit court also found that “[i]t seems pretty

clear to the [c]ourt that based on the complaint that was filed in 2014, the federal litigation

was part of [Alcatec’s] complaint and part of the background in this case and [The Jones

Group] knew about it.” However, The Jones Group failed to specifically raise the affirmative

defenses of res judicata and collateral estoppel in its initial answer. At the motion hearing,

the circuit court found that “some of the defenses that [The Jones Group] raised in their

initial answer . . . referenced, while not directly, the wrongdoing of the plaintiff which was

the holding in part of the federal court.” As stated, the circuit court cited this as one of the

reasons it allowed The Jones Group to amend its answer.

¶40. Pursuant to the supreme court’s holding in Hutzel, 33 So. 3d at 1122 (¶24), “when

reviewing a trial court’s decision to grant or deny a party’s request to amend pleadings

19
pursuant to Rule 15 over an objection grounded in Rule 8(c), this Court will adhere to the

rule expressed in Horton, giving full effect to the mandatory language of Rule 8(c).” Here,

our review of the record shows that The Jones Group actively participated in the litigation

and has failed to provide a reasonable explanation for its nearly three-year delay in raising

the affirmative defense of collateral estoppel. The Jones Group thus waived its right to assert

this affirmative defense. See id. Accordingly, we find that the circuit court abused its

discretion in allowing The Jones Group to amend its answer and include the affirmative

defense of collateral estoppel. We therefore reverse the circuit court’s order allowing The

Jones Group to amend its answer.4

4
Although The Jones Group sought to amend its answer to add the defense of
collateral estoppel, it did not ask to add any other defenses. Nonetheless, the dissent argues
that Alcatec’s complaint is barred by the doctrine of unclean hands, the doctrine of in pari
delicto, and/or the wrongful conduct rule. (Dis. Op. at ¶43). The dissent acknowledges that
The Jones Group failed to plead these defenses below, but the dissent argues that this Court
should raise these doctrines sua sponte and affirm the dismissal of Alcatec’s complaint.
(Dis. Op. at ¶47).
Generally, “[t]he defense should raise the clean hands doctrine in the answer if the
lack of clean hands is known before trial,” and the “[f]ailure to do so may waive the
defense.” James W. Shelson, Mississippi Chancery Practice § 2:27, Westlaw (database
updated June 2019). In Deliman v. Thomas, 16 So. 3d 721, 726 (¶25) (Miss. Ct. App.
2009), this Court held that the issue of the doctrine of unclean hands “was not raised at the
hearing or before the chancellor. Consequently, . . . the issue is not properly before this
Court on appeal.” In Bardwell v. White, 762 So. 2d 778, 783 (¶32) (Miss. Ct. App. 2000),
this Court found that the appellant’s argument that the chancellor erred in failing to dismiss
the appellee’s complaint based on the doctrine of unclean hands was not brought before the
chancellor. This Court stated that it “should undertake consideration of no matter which has
not first been presented to and decided by the trial court.” Id. (quoting Barnes v. Singing
River Hosp. Sys., 733 So. 2d 199, 202 (¶9) (Miss. 1999)). This Court accordingly held that
it “will not find the lower court in error on a matter not presented for a decision.” Id.
Because The Jones Group failed to plead or raise these defenses below, we therefore find
that this issue is not properly before this Court on appeal.
As acknowledged by the dissent, the record reflects that the circuit court did raise the
issue of unclean hands sua sponte during the hearing on The Jones Group’s motion for

20
¶41. As stated, the circuit court also based its order granting summary judgment on its

finding that Barbour’s conduct “was an intervening and superseding cause of the damages

that are the subject of [Alcatec’s] complaint.” However, the supreme court has held that the

issue of superseding intervening cause is a question of fact for the jury to decide. See O’Cain

v. Harvey Freeman & Sons Inc., 603 So. 2d 824, 830 (Miss. 1991) (“[T]he question of

superseding intervening cause is so inextricably tied to causation, it is difficult to imagine

a circumstance where such issue would not be one for the trier of fact.”). As a result, we also

reverse the circuit court’s order granting summary judgment in favor of The Jones Group,

and this case is remanded for a trial on the merits.

¶42. REVERSED AND REMANDED.

BARNES, C.J., GREENLEE, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR. TINDELL AND McDONALD, JJ., CONCUR IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J.

J. WILSON, P.J., DISSENTING:

¶43. This is a remarkable lawsuit. Alcatec is suing a former subcontractor to recover

“damages” consisting of contract payments that Alcatec forfeited and penalties that Alcatec

was assessed because a federal court found that Alcatec knowingly and intentionally

summary judgment. In response, counsel for Alcatec argued that The Jones Group never
raised or pled the defense of unclean hands. The circuit court then asked The Jones Group
to file a supplemental brief on the issue of unclean hands, which it did. However, the circuit
court’s order granting summary judgment did not address the issue of unclean hands or The
Jones Group’s supplemental brief on that issue. Furthermore, neither Alcatec nor The Jones
Group has briefed the issue of unclean hands on appeal. Because Alcatec has not been given
an opportunity to make arguments in defense of an assertion of “unclean hands,” this Court
should refrain from making such a finding on our own motion.

21
perpetrated a scheme to defraud the United States. I agree with Alcatec that the doctrine of

collateral estoppel does not apply because The Jones Group was neither a party to the federal

case nor in privity with the United States. However, I would hold that Alcatec’s complaint

is barred by the doctrine of unclean hands, the doctrine of in pari delicto, and/or the wrongful

conduct rule. Accordingly, I respectfully dissent.

¶44. Following an eight-day trial, the United States Court of Federal Claims found by clear

and convincing evidence that Alcatec and its sole owner and managing member, Rosemary

Barbour, engaged in a scheme to knowingly and intentionally defraud the United States by

submitting false and fraudulent invoices. See generally Alcatec LLC v. United States, 100

Fed. Cl. 502 (2011). Based on Alcatec’s fraud, the court ruled that Alcatec had forfeited the

allegedly unpaid balance of its federal contract and also ordered Alcatec to pay $77,000 in

penalties and $275,050 in investigative costs. Id. at 529. It bears emphasis that the court was

required to and did find, by clear and convincing evidence, that Alcatec and Barbour

specifically intended to defraud the United States—the court noted that mere “negligence or

ineptitude” would not have warranted a forfeiture. Id. at 517. On appeal, the United States

Court of Appeals for the Federal Circuit affirmed the judgment against Alcatec. Alcatec LLC

v. United States, 471 F. App’x 899 (Fed. Cir. 2012) (per curiam).

¶45. Now, in this lawsuit against a former subcontractor, Alcatec seeks to recover as

“damages” the same contract payments that it forfeited and penalties that it was assessed as

a result of its own fraudulent conduct. The gravamen of Alcatec’s complaint is that The

Jones Group overstated its experience and capabilities, failed to perform under its

22
subcontract, and ultimately caused Alcatec to submit erroneous invoices to the Federal

Emergency Management Agency (FEMA). However, Alcatec’s claim is contrary to the

finding of the Court of Federal Claims, which was subsequently affirmed on appeal, that

Alcatec knowingly and intentionally submitted false and fraudulent invoices to FEMA.

¶46. Regardless of whether The Jones Group waived its collateral estoppel argument, I

agree with Alcatec that Mississippi’s version of the doctrine does not apply in this case

because The Jones Group was neither a party to the federal case nor “in privity” with the

United States. “The doctrine of collateral estoppel provides that an issue of ultimate fact

determined by a prior judgment may not be relitigated between the same parties in a

subsequent action.” State v. Oliver, 856 So. 2d 328, 331 (¶7) (Miss. 2003) (emphasis added).

“[S]trict identity of parties is not necessary for . . . collateral estoppel to apply, if it can be

shown that a nonparty stands in privity with the party in the prior action.” Hogan v.

Buckingham ex rel. Buckingham, 730 So. 2d 15, 18 (¶11) (Miss. 1998). “It must be

remembered, however, that Mississippi follows the general rule that parties must be

substantially identical for res judicata to apply.” Id. The Mississippi Supreme Court has

recognized only two limited exceptions to this general rule: (1) a criminal defendant

convicted of rape cannot relitigate his guilt in a subsequent civil action filed by the victim

(i.e., the “prosecuting witness”), Jordan v. McKenna, 573 So. 2d 1371, 1377 (Miss. 1990),

and (2) a finding against an injured party in a personal injury action estops that party’s spouse

from relitigating the same issue in a derivative claim for loss of consortium, McCoy v.

Colonial Baking Co., 572 So. 2d 850, 853-54 (Miss. 1990). See also Bell v. Texaco Inc., No.

23
5:09-CV-192-KS-MTP, 2010 WL 5330729, at *2-3 (S.D. Miss. Dec. 21, 2010) (discussing

Mississippi’s strict mutuality requirement and describing Jordan and McCoy as “two rather

limited exceptions”). All that can be said in this case is that The Jones Group’s owner was

a nonparty witness in the prior litigation between Alcatec and the United States. The Jones

Group was not “in privity” with the United States. Therefore, it cannot rely on the federal

judgment against Alcatec as the basis for a collateral estoppel argument.

¶47. Although collateral estoppel is inapplicable, Alcatec’s complaint should be dismissed

based on the doctrine of unclean hands,5 the doctrine of in pari delicto,6 and/or the wrongful

conduct rule.7 The Jones Group failed to plead these defenses as well,8 but our Supreme

5
See, e.g., Estate of Van Ryan v. McMurtray, 505 So. 2d 1015, 1019 (Miss. 1987)
(holding that the unclean hands doctrine barred fiduciaries’ claims for quantum meruit
damages because they “had violated their fiduciary duties by taking money to which they
were not entitled”).
6
See Greenline Equip. Co. v. Covington County Bank, 873 So. 2d 950, 958 (¶26)
(Miss. 2002) (holding that the doctrine of in pari delicto barred a party found liable for
conversion from recovering from an alleged joint tortfeasor); In Pari Delicto Doctrine,
Black’s Law Dictionary 944 (11th ed. 2019) (“The principle that a plaintiff who has
participated in wrongdoing may not recover damages resulting from the wrongdoing.”); 27A
Am. Jur. 2d Equity § 24, Westlaw (database updated May 2020) (“A maxim that is closely
related to, and that has been described as a corollary of, the clean-hands maxim is ‘in pari
delicto’ . . . . In fact, in some jurisdictions, courts use unclean hands and in pari delicto
interchangeably . . . . The common-law defense of in pari delicto prohibits a party from
recovering damages arising from misconduct for which the party bears responsibility, bears
fault, or that resulted from the party’s wrongdoing.” (footnotes omitted)). In pari delicto has
been described as the “counterpart legal doctrine to unclean hands,” barring a suit for
damages in circumstances in which unclean hands would bar equitable relief. Byron v. Clay,
867 F.2d 1049, 1052 (7th Cir. 1989).
7
Price v. Purdue Pharma Co., 920 So. 2d 479, 484 (¶13) (Miss. 2006) (“If a plaintiff
cannot open his case without showing that he has broken the law, a court will not aid him.”);
W. Union Tel. Co. v. McLaurin, 108 Miss. 273, 278, 66 So. 739, 740 (1914) (“The principle
of public policy is that no court will lend its aid to a party who grounds his action upon an

24
“Court has held that when it is evident by the facts of the case that the unclean hands doctrine

is applicable, the [court] has a duty to apply that doctrine of its own motion.” Estate of Van

Ryan, 505 So. 2d at 1019 (emphasis added); accord, e.g., Estate of Nelson v. Nelson, 266 So.

3d 1008, 1018 (¶36) (Miss. Ct. App. 2018), cert. denied, 267 So. 3d 278 (Miss. 2019).

Moreover, a number of courts have held that an appellate court may invoke the doctrine sua

sponte because its purpose is to protect the integrity of the courts, not the rights of the

parties.9 The same rationale applies to the related in pari delicto doctrine and wrongful

conduct rule, which serve similar purposes.

¶48. Our courts should not hear this case or provide the remedy that Alcatec seeks. The

immoral or illegal act.”).
8
The circuit court raised the issue of unclean hands sua sponte during the hearing on
The Jones Group’s motion for summary judgment. Alcatec argued that the defense had not
been pled. In response to the circuit court’s questions, The Jones Group filed a
supplemental brief on the issue. The Jones Group has not briefed the issue on appeal.
9
See, e.g., In re Estate of Pedrick, 482 A.2d 215, 222 & n.10 (Pa. 1984) (holding that
an appellate court may raise the doctrine sua sponte because it is based on “public policy,”
not “the rights or liabilities of the parties”); Stachnik v. Winkel, 230 N.W.2d 529, 532 (Mich.
1975) (“Since the clean hands maxim is designed to preserve the integrity of the judiciary,
courts may apply it on their own motion even though it has not been raised by the parties or
the courts below.”); Malone v. State ex rel. Gallion, 234 So. 2d 32, 35 (Ala. 1970) (“[T]he
maxim of unclean hands may be applied by the court sua sponte whether the question was
raised in the lower court or not.”); Janke v. Janke, 366 N.Y.S.2d 910, 915 (N.Y. App. Div.
1975) (“Although neither party raised the issue of unclean hands . . . [in the lower court],
this court is not precluded from raising the issue [s]ua sponte for the first time on appeal not
to favor defendant, but as a matter of public policy.” (citations omitted)), aff’d, 350 N.E.2d
617 (N.Y. 1976) (affirming for the reasons stated by the Appellate Division); Gratreak v.
N. Pac. Lumber Co., 609 P.2d 375, 378 (Or. Ct. App. 1980) (“The doctrine of clean hands
is applied for the protection of the integrity of the court and not for the benefit of the parties.
The trial court or the appellate court may invoke the doctrine on its own motion.” (citations
omitted)); Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir. 2010); Foster v. Foster, 655
S.E.2d 172, 177 (W. Va. 2007).

25
complaint makes clear that Alcatec’s alleged damages consist of forfeitures ordered and

penalties assessed by a federal court that found—by clear and convincing evidence in a

decision that was affirmed on appeal—that Alcatec intentionally defrauded the United States.

Alcatec should not be permitted to bring an action to recover damages that arose from its

own fraudulent scheme. The dismissal of Alcatec’s complaint should be affirmed for that

reason.

WESTBROOKS, J., JOINS THIS OPINION.

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