Before Sullivan, P.j., McRAE And Roberts, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 01/09/1998
TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 02/04/99
¶1. Effective July 15, 1994, the University of Mississippi (the University) terminated its employment contract with its head football coach, Billy Brewer. Under the terms of the contract, the University had originally agreed to employ Brewer until June 30, 1997. However, following two NCAA investigations, in 1986 and 1994, which resulted in findings that the University violated NCAA recruiting regulations, the University determined that Brewer had breached terms of his employment contract by failing to maintain control of the football program.
¶2. Following the procedure set out in the University's employee handbook, Brewer first appealed his termination to his department head, Warner Alford, Director of Intercollegiate Athletics. After Alford affirmed the decision to terminate on July 26, 1994, Brewer appealed to the University's Personnel Action Review Board (PARB) for a full hearing. On September 9, 1994, the PARB mailed a letter to Brewer informing him of their decision to uphold his termination.
¶3. On January 6, 1995, Brewer filed his complaint against the University's Chancellor, Gerald Turner, and the Board of Trustees of State Institutions of Higher Learning (the Board) in the Lafayette County Circuit Court, seeking monetary damages for breach of contract, violation of his constitutional rights, and tortious interference with contract. The defendants removed the case to the United States District Court for the Northern District of Mississippi, where they filed a motion to dismiss. The district court dismissed the federal claim against Turner, and remanded the state law claims to the circuit court. Brewer then filed his amended complaint in circuit court on February 11, 1997, and a second amended complaint on April 3, 1997, suing only the Board for breach of contract and mental anxiety and stress. On December 19, 1997, the Board filed its Motion to Dismiss for Lack of Jurisdiction, claiming that the circuit court lacked jurisdiction over the case, because Brewer failed to follow the statutory procedure under Miss. Code §§ 11-51-93 and 11-51-95 (1972; Supp. 1998). Circuit Judge Henry L. Lackey denied the Board's motion on January 9, 1998, and granted certification of the issue for interlocutory appeal to this Court on January 12, 1998. In turn, this Court granted permission for this interlocutory appeal to proceed.
MUST THE CIRCUIT COURT'S JURISDICTION IN THIS CASE BE INVOKED UNDER THE PROCEDURE SET OUT IN §§ 11-51-93 AND 11-51-95, OR BY FILING A COMPLAINT IN THE CIRCUIT COURT?
¶4. Brewer maintains that the question raised by the Board in its motion to dismiss is not jurisdictional, but merely procedural, and that the Board only addresses the issue in terms of jurisdiction in order to avoid denial of its motion under Rule 12(b) of the Mississippi Rules of Civil Procedure. Under Rule 12(b), a defense is waived if not asserted in the answer to the complaint. Miss. R. Civ. P. 12(b). One of the seven listed exceptions to this rule is lack of jurisdiction, which may be raised at any time. Id.; Rodgers v. City of Hattiesburg, 99 Miss. 639, 643, 55 So. 481, 482 (1911). Because the Board did not raise Brewer's failure to follow the statutory procedures as a defense in its answer to Brewer's original complaint or in its answer to his amended complaint, this issue would be waived unless it is a jurisdictional dispute. However, we have previously held that failure to post the required ...