author: STONE, J.

text:
    Danny C. WEAVER, et al., Plaintiffs-Appellants v. CITY OF SHREVEPORT, et al., Defendants-Appellees
    No. 52,407-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered December 19, 2018
    DUNAHOE LAW FIRM By: Jared Dunahoe, Counsel for Appellants, Danny C. Weaver, Rebecca Weaver Martin, Terry Weaver Escude, Linda K. Weaver Pharr, Delores Weaver Winderweedle
    ABRAMS & LAFARGUE, LLC By: Reginald W. Abrams, Counsel for Defendants, City of Shreveport, Larry J. Scott, Sergeant, Jeff Peters, Sergeant Joel Davison, Deputy Sheriff
    CNA COVERAGE LITIGATION GROUP By: Mary Katherine Cryar, Counsel for Defendant, Columbia Casualty Company
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP By: Edwin Henry Byrd, III, Counsel for Appellees, Steve Prator, Caddo Parish Sheriff, Earlton Parker, Deputy Sheriff
    LUNN, IRION, SALLEY, CARLISLE, & GARDNER By: Alexander J. Mijalis, Counsel for Defendant, American Alternative Insurance Corporation
    Before STONE, McCALLUM, and BLEICH (Pro Tempore ), JJ.
   STONE, J.

The plaintiffs, Danny C. Weaver, Delores Weaver Winderweedle, Terri Weaver Escude, Linda Kay Weaver Pharr, and Rebecca Weaver Martin, appeal from the trial court's judgment denying their motion for partial summary judgment and granting the motion for summary judgment in favor of the defendants, Caddo Parish Sheriff Steve Prator and Deputy Sheriff Earlton Parker. For the following reasons, we reverse that portion of the trial court's judgment granting the defendants' motion for summary judgment and remand the case for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 18, 2014, the Caddo Parish Sheriff's Department ("Sheriff's Department") and the Shreveport Police Department ("SPD") attempted to arrest Damien Pea ("Pea") on various outstanding warrants issued by the State of Oklahoma. The operation was conducted by members of the joint task force known as the Street Level Interdiction Unit ("SLIU"). The SLIU is a unit of the Caddo-Shreveport Narcotics Unit, and consists of both SPD Officers and Sheriff Deputies.

In order to execute the arrest of Pea, the SLIU enlisted the assistance of Teketia Pipkins ("Pipkins"), Pea's girlfriend. Pipkins was instructed to drive Pea to the Circle K gas station on West 70th Street and exit her vehicle. Although there is a dispute regarding whether Pipkins was also instructed to take the keys from the vehicle when she exited, Pipkins did not remove the keys when she exited the vehicle.

On the day of the operation, Caddo Parish Sheriff Deputy Earlton Parker ("Deputy Parker") was on duty and assigned to the SLIU. Deputy Parker, the only Caddo Sheriff Deputy participating in the arrest of Pea, rode as a passenger in the lead vehicle being driven by SPD Officer Ryan Holley ("Officer Holley").

Once Pipkins arrived at the Circle K gas station with Pea and exited the vehicle, agents with the SLIU approached the vehicle from the rear. Deputy Parker also exited Officer Holley's vehicle. At the same time, Pea moved from the passenger seat to the driver's seat and turned on the vehicle's ignition. Since the agents with SLIU failed to block and/or barricade the vehicle, Pea drove away from the Circle K gas station, and a high-speed chase of Pea commenced.

The pursuit lasted over 11 minutes and extended through several residential and commercial neighborhoods at night, in the rain, and at speeds in excess of 90 miles per hour. During the pursuit on Jewella Avenue, Pea's vehicle struck a civilian vehicle causing Pea to have a flat tire and cross the median on Jewella Avenue. Pea continued to drive against the flow of traffic when he struck, head on, a vehicle occupied by Obie and Linda Weaver ("the Weavers"). As a result of the injuries they sustained from the impact of the crash, the Weavers both tragically died days later, and Pea was pronounced dead on the scene.

On December 3, 2015, the Weavers' children, Danny C. Weaver, Delores Weaver Winderweedle, Terri Weaver Escude, Linda Kay Weaver Pharr, and Rebecca Weaver Martin ("Plaintiffs"), filed suit against the City, Sergeant Larry J. Scott ("Sergeant Scott"), Sergeant Jeff Peters ("Sergeant Peters"), Caddo Parish Sheriff Steve Prator ("Sheriff "), Deputy Sheriff Earlton Parker ("Deputy Parker"), and Deputy Sheriff Joel Davidson ("Deputy Davidson"), in their individual capacities, for damages resulting from the Weavers' death.

On December 21, 2015, the Plaintiffs filed a first amending petition adding SPD Officer Joel Davidson ("Officer Davidson") as a defendant, and alleging the vicarious liability of the City for the actions of Officer Davidson. On November 30, 2016, the Plaintiffs filed a second amending petition adding Pipkins, American Alternative Insurance Company, and Columbia Casualty Company as defendants. On February 16, 2017, the Plaintiffs filed a third amending petition alleging that the City is both vicariously liable, as well as joint and solidarily liable for the actions of any employees, representatives, agents, and volunteers of the Sheriff and Pipkins.

On October 2, 2017, the Sheriff and Deputy Parker filed a motion for summary judgment arguing that they were entitled to dismissal of all claims against them because: (1) there was no negligence on the part of Deputy Parker because he had no part in planning the arrest or pursuit; (2) the Sheriff was not vicariously liable for Deputy Parker's actions because there was no evidence of negligence on the part of Deputy Parker; (3) the Sheriff was not vicariously liable for the alleged negligence of Pipkins; and (4) even accepting that the Caddo-Shreveport Narcotics unit was a "joint venture," the Sheriff was not vicariously or solidarily liable for the alleged fault of Shreveport Police Officers for activities occurring outside the mission of the Caddo-Shreveport Narcotics Unit.

The plaintiffs filed a cross-motion for partial summary judgment in which they asserted that there is no genuine issue of material fact that the attempted arrest of Pea and resulting pursuit was a joint operation between the City and Sheriff, and the plaintiffs were entitled to judgment as a matter of law finding the City and Sheriff solidarily liable for the Weavers' deaths. The trial court denied the plaintiffs' cross-motion for partial summary judgment, and granted the Sheriff and Deputy Parker's motion for summary judgment based on the court's findings that: there is no genuine issue of fact that Deputy Parker was not at fault in the operation to arrest Pea; and, there is no genuine issue of fact that Caddo Parish Sheriff Steve Prator is not vicariously liable. The plaintiffs now appeal.

DISCUSSION

The plaintiffs contend that the trial court erred in granting summary judgment in favor of the Sheriff and Deputy Parker and denying their motion for partial summary judgment.

Appellate courts review a judgment granting a motion for summary judgment on a de novo basis, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Bank of New York Mellon v. Smith , 2015-0530 (La. 10/14/15), 180 So.3d 1238, 1243 ; Tramuta v. Lakeside Plaza, L.L.C ., 14-410 (La. App. 5 Cir. 2/25/15), 168 So.3d 775, 778 ; Gutierrez v. State Farm Fire & Cas. Ins. Co. , 13-341 (La. App. 5 Cir. 10/30/13), 128 So.3d 509, 511. In conducting our de novo review, we consider all reasonable inferences to be drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880 ; Driver Pipeline Co., Inc. v. Cadeville Gas Storage, LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So.3d 492, writ denied , 2014-2304 (La. 1/23/15), 159 So.3d 1058.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially ensure or preclude recovery, affect a litigant's ultimate success or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730 ; Estate of Levitz v. Broadway , 37,246 (La. App. 2 Cir. 5/14/03), 847 So.2d 170.

La. C.C.P. art. 966(D)(1) provides the general rule concerning the burden of proof for summary judgment and states in pertinent part as follows:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party "may not rest on the mere allegations or denials of his pleading," but his response, by affidavits or other proper summary judgment evidence, "must set forth specific facts showing that there is a genuine issue for trial." If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The duty-risk analysis is used to determine whether liability exists under the facts of a particular case. Stroik v. Ponseti , 96-2897 (La. 9/9/97), 699 So.2d 1072 ; Courville on Behalf of Vincent v. City of Lake Charles , 98-73 (La. App. 3 Cir. 10/28/98), 720 So.2d 789, 795. Under a duty-risk analysis, a plaintiff must prove that (1) the conduct in question was the cause-in-fact of the harm, (2) the defendant owed a duty of care to the plaintiff, (3) the defendant breached the requisite duty, and (4) the risk of harm was within the scope of protection afforded by the duty. Stroik, supra . In order for a plaintiff to recover under a negligence theory, all four inquiries must be answered affirmatively. Id.

The plaintiffs first assert that the trial court erred in its summary judgment rulings because a genuine issue of material fact exists as to whether the attempted arrest and resulting pursuit of Pea was pursuant to a joint operation between the City and the Sheriff. We restrict our analysis singularly to the granting of the defendants' motion for summary judgment.

The denial of a motion for summary judgment is an interlocutory judgment and is not appealable. La. C.C.P. arts. 968, 1841 ; Laird v. Laird , 46,459 (La. App. 2 Cir. 6/22/11), 69 So.3d 1173 ; Fontenot v. MissCathie's Plantation, Inc. , 93-926, 93-927 (La. App. 3 Cir. 03/02/94), 634 So.2d 1380. Although La. C.C.P. art. 1915(B) allows a trial court to designate a partial summary judgment as a final judgment, it does not provide that a judgment denying a motion for summary judgment can be so designated. Laird, supra ; Young v. City of Plaquemine , 04-2305 (La. App. 1 Cir. 11/4/05), 927 So.2d 408. Because the trial court denied the plaintiffs' motion for partial summary judgment, in which the existence of a joint operation was alleged to be a "genuine issue of material fact," review does not lie from this ruling. Therefore, we pretermit a discussion of the plaintiffs' argument related thereto.

The primary issue before this Court is whether the trial court erred in granting summary judgment in favor of the defendants, based upon its finding that Deputy Parker was not negligent in the planning and the execution of the attempted arrest of Pea, and/or negligent in the resulting pursuit of Pea. The plaintiffs further assert that the alleged negligent acts and omissions of the SLIU members should determine liability for both the Sheriff and Deputy Parker. The plaintiffs assert that Deputy Parker had an obligation to ensure that the operation was thoroughly and safely planned and executed, that he was aware of the operation, and that he understood his role in the operation.

In contrast, the defendants argue that Deputy Parker had no such obligations because the extent of his involvement in the operation was limited to simply exiting the vehicle upon arrival at the Circle K gas station. In support of their arguments, both the plaintiffs and defendants have submitted the deposition of Deputy Parker.

In his deposition, Deputy Parker stated that he has been a member of the SLIU since 2011. Further, Parker's deposition testimony contended that he did not participate in the planning of the operation, nor was he aware of the manner in which the operation would be conducted. Deputy Parker alleges only that he learned of the operation from Officer Holley while en route to the Circle K to execute the arrest of Pea.

During the operation, Deputy Parker indicated that he exited the passenger side of the unmarked police vehicle being driven by Officer Holley and approached Pea's vehicle from the rear. He further explained that once Pea's vehicle left the Circle K, he resumed his position as a passenger while Officer Holley drove the unmarked vehicle in pursuit of Pea.

The unmarked vehicle driven by Officer Holley was not initially the lead vehicle pursuing Pea. However, Deputy Parker stated in his deposition that he used the police radio to inform the agents occupying the lead vehicle that he and Officer Holley could take the lead because their vehicle was equipped with lights and sirens. He also mentioned that neither he nor Officer Holley discussed a plan for apprehending Pea or terminating the chase. Deputy Parker claimed that he remained quiet for a large part of the pursuit, and only spoke to Officer Holley when their vehicle approached intersections.

A de novo review of the record reveals the SPD and Sheriff's Department fully engaged in the operation to arrest Pea, regardless of the fact that the only deputy sheriff present during the operation was Deputy Parker. As such, we find the actions of all members of the SLIU who were present and participated in the operation to arrest Pea may be considered by the trial court inasmuch as these facts are disputed.

We disagree with the characterization of Deputy Parker's limited involvement in the operation to arrest Pea. Deputy Parker had been a member of the SLIU since 2011, and in fact, the SLIU was his sole assignment at the time of the operation to arrest Pea. Although it is undisputed that he exited the vehicle and immediately returned once the pursuit of Pea ensued, Deputy Parker still participated. He unequivocally admitted in his deposition that he was in fact a participant in the operation, and that he used the police radio to inform the agents occupying the lead vehicle that he and Officer Holley could take the lead because their vehicle was equipped with lights and sirens. Therefore, having reviewed Deputy Parker's deposition testimony under the summary judgment standard of review, we reject the defendants' argument of Deputy Parker's limited involvement in the operation as a basis to absolve any liability for the Sheriff or Deputy Parker.

In conclusion, we find the trial court erred in granting summary judgment in favor of the defendants, as genuine issues of material fact exist as to whether Deputy Parker was negligent in the planning and the execution of the attempted arrest of Pea and/or negligent in the resulting pursuit of Pea, and whether there exists vicarious liability on the part of the Sheriff for the activities of Deputy Parker.

CONCLUSION

For the foregoing reasons, the trial court's judgment granting summary judgment in favor of the appellees, Sheriff Steve Prator and Deputy Sheriff Earlton Parker, is reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the appellees, Sheriff Steve Prator and Deputy Sheriff Earlton Parker.

REVERSED AND REMANDED.

      The Caddo-Shreveport Narcotics Unit was created by a Cooperative Endeavor Agreement which established the agency relationship between the City of Shreveport ("City") and the Sheriff's Department. The Cooperative Endeavor Agreement provides for the sharing of the proceeds from narcotics seizures and seizures of vehicles involved in narcotics activity. However, the SLIU occasionally conducts non-narcotics related operations.

      We do not conclude, at this juncture, that potential issues concerning joint venture(s) and/or joint operation(s) may not be fully considered, if deemed admissible, by the trial court.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Cody PARKER v. AMERICAN WESTERN HOME INSURANCE COMPANY, et al.
    18-392
    Court of Appeal of Louisiana, Third Circuit.
    December 28, 2018
    R. Scott Iles, 1200 West University Avenue, Lafayette, LA 70506, P.O. Box 3385, Lafayette, LA 70502, (337) 234-8800, COUNSEL FOR PLAINTIFF-APPELLANT: Cody Parker
    Richard J. Petre, Jr., Onebane Law Firm, P.O. Box 3507, Lafayette, LA 70502-3507, (337) 237-2660, COUNSEL FOR DEFENDANT-APPELLEE American Western Home Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   COOKS, Judge.

Plaintiff-appellant, Cody Parker appeals the trial court's grant of summary judgment in favor of the insurer, American Western Home Insurance Company, finding the business exclusion contained in its policy did not provide coverage for Plaintiff's injuries. Finding summary judgment was improperly granted in this case, we reverse the trial court's judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts establish Mike Blakly purchased the mobile home in question approximately ten years prior to the occurrence of the subject accident. Blakly lived in the mobile home until sometime in 2015. At that time, Blakly refinanced the mobile home and land on which it rested to acquire different property. Blakly and his wife, Deborah Armentor, then moved to that property.

The mobile home remained "empty for a few months," until Blakly's daughter, Imarie Blakly, began living there. She lived in the mobile home for approximately six months. There was testimony that a rental agreement was signed by Imarie, although she did not pay rent. Blakly testified he prepared a rental agreement for his daughter because "[s]he wanted one[.]" Blakly further testified when Imarie's boyfriend began living there, Blakly expected to receive rent. Blakly ultimately had the couple evicted from the mobile home for failure to pay rent.

After the eviction of Imarie and her boyfriend, Jeromie and Krissi McCann became aware of the empty trailer and inquired to a friend as to its availability. Eventually they were given Blakly's number and contacted him in regard to the mobile home. The McCanns maintained they discussed renting the mobile home, with the intent to purchase. There was a "Rent to Own Lease Agreement" prepared, which contemplated a purchase price conditioned on Blakly's financing and interest rate. The agreement stated in part, "[t]he total price for the property is $46,000.00 unless the rate of interest is changed when seller refinances balloon note on November 5, 2018. At this time the seller and buyer will renegotiate to satisfy the original bank note due." The contemplated rent-to-own agreement also required a non-refundable fee deposit of $7,000.00.

The rental agreement signed contained the following language as to the rent due:

Monthly Rental will be paid on the 1st of each month in the sum of $600.00 which $530.00 will be applied to the price agreed on in section 2 of the leases when criteria is met and agreed to at that time.
If Rent to own is not fulfilled it will not be applied to ownership of property as in section two.

The parties ultimately signed a "Month to Month Rental Agreement" on January 31, 2016, which set forth a $600.00 monthly rental fee. The McCanns paid $5,000.00 of a requested $7,000.00 deposit on February 18, 2016. Krissi McCann testified Blakly was informed the $5,000.00 was all they could afford and believed this deposit would apply to the understood rent-to-own arrangement. The McCanns believed upon paying all mortgage debt on the property, they would own the premises, including the mobile home. According to the Jeromie McCann there was no question they were "planning on buying the place from [Blakly] until he decided he wanted to take some of the land and move onto it during his divorce."

The testimony established that after the McCanns moved into the mobile home in February of 2016 (the testimony is conflicting on the exact date), Blakly moved back on to the 3.17 acres upon which the mobile home was located. He apparently stayed in a shed which he purchased after he and his wife separated. Jeromie McCann testified that when Blakly moved onto the property, they decided not to go forward with the purchase. The McCanns took the position the parties agreed the $5,000.00 deposit they paid should go toward rent owed. Blakly insisted the deposit was not meant to apply to rent.

According to Jeromie, Blakly began telling him in July of 2016 that they needed to leave his premises. On October 25, 2016, Blakly issued a Notice to Vacate to the McCanns. A Rule to Evict was issued on November 16, 2016, and the matter was heard before the district court on November 28, 2016. The trial judge made the following comment at trial:

This is the problem with people that don't go to lawyers to get their legal work done or approved. You've got a document here that's sort of three different things all in one, and it's not really any of them.

At the hearing, the McCanns informed the trial judge they were agreeing to vacate the mobile home. The trial court then issued a judgment requiring the McCanns to vacate by midnight on November 30, 2016. The trial judge also credited the McCanns $800.00 as overpayment of rent from the $5,000.00 deposit made on February 18, 2016.

Pertinent to this appeal, on August 19, 2016, Plaintiff, Cory Parker, was visiting his sister, Krissi McCann at the mobile home in question. During the visit, Parker fell through the kitchen floor of the mobile home. Parker maintained he sustained significant personal injuries as a result of the fall, including, but not limited to, a L4-5 fracture.

As a result of his injuries, Parker filed a personal injury lawsuit against Blakly and his homeowner's insurer, American Western Home Insurance Company. Parker asserted the sole cause of the accident was the negligence of Blakly in not maintaining the home in a suitable condition.

In response to the lawsuit, American Western filed a motion for summary judgment on the issue of liability. Specifically, American Western argued they were not liable due to a business exclusion in the policy which excluded damages "arising out of or in connection with a business conducted from an insured premises or engaged in by an insured person[.]" American Western contended the renting of property is a business activity and Blakly was renting the mobile home at the time of the incident. Parker argued this business exclusion contained an exception for the rental of the insured premises "on an occasional basis if used only as a residence."

The trial court agreed with American Western's arguments and granted the motion for summary judgment in favor of American Western, dismissing Plaintiff's claims against it with prejudice. This appeal followed, wherein Plaintiff contends the trial court erred in granting American Western's motion for summary judgment.

ANALYSIS

Plaintiff appeals the trial court's grant of summary judgment in favor of American Western that found the insurance policy in question did not cover Plaintiff's injuries. Plaintiff argues there is a genuine issue of material fact as to whether the business exclusion applies, and even if it does, whether the occasional business exception is applicable.

Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A)(3). The burden of proof on a motion for summary judgment is on the movant to establish that no material factual issues exist. La.Code Civ.P. art. 966(D)(1) ; Schroeder v. Bd. of Supervisors of La. State Univ. , 591 So.2d 342, 345 (La.1991). "Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted." Chaisson v. Domingue , 372 So.2d 1225, 1227 (La.1979). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Westerfield v. LaFleur , 493 So.2d 600 (La.1986). Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court's grant of the judgment. Guillory v. Interstate Gas Station , 94-1767 (La. 3/30/95), 653 So.2d 1152.

A dispute as to the issue of whether the language of an insurance policy provides coverage to a party can properly be resolved within the context of a motion for summary judgment. Domingue v. Reliance Ins. Co. , 619 So.2d 1220 (La.App. 3 Cir. 1993). The insurer bears the burden of proving that a loss falls within a policy exclusion. Blackburn v. Nat'l Union Fire Ins. Co. , 00-2668 (La. 4/3/01), 784 So.2d 637. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Beck v. Burgueno , 43,557 (La.App. 2 Cir. 9/17/08), 996 So.2d 404.

Further, the Louisiana Supreme Court in Veuleman v. Mustang Homes, LLC , 13-190, p. 1 (La. 4/5/13), 110 So.3d 572, 573, found when an exclusion to a policy has an exception that would allow for coverage, "[i]f the exception is met, the exclusion does not apply. The insurer retains the burden of proving that the exception is not met in order to show that the exclusion does apply." Plaintiff maintains, in this case, even if the exclusion were found to be applicable, the "occasional basis" exception found in the policy would allow for coverage.

The policy issued by American Western to Blakly contained the following "business pursuits" exclusion:

1. Under PERSONAL LIABILITY and MEDICAL PAYMENTS TO OTHERS, we do not cover bodily injury or property damage:
....
c. arising out of or in connection with a business conducted from an insured premises or engaged in by an insured person. This applies whether or not the business is owned or operated by an insured person or employs an insured person.
This exclusion (1.c.) applies, but is not limited to, an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.
This Exclusion (1.c.) does not apply to the rental or holding for rental of an insured premises:
(1) on an occasional basis if used only as a residence; or
(2) In part for use only as a residence, unless a single family unit is intended for use by an occupying family to lodge more than two roomers or boarders;

American West maintained the business exclusion applied because Blakly was renting his home to the McCanns at the time of Plaintiff's injury. The policy defines "business" as "any trade, profession, occupation or service of an insured person. 'Business' includes any part-time, temporary, or permanent activity engaged in for compensation."

Plaintiff countered that there was no evidence that Blakly's attempt to sell his property was a "business," and that the evidence preponderated that Blakly only intended for the rent to simply cover the bank note on the motor home and property. Thus, Plaintiff argued since the rent was only intended to cover what Blakly owed on the mortgage, he was not being personally compensated and the rental arrangement was not an activity engaged in for compensation.

Examining the testimony in the record, we note Blakly himself testified "all of that rental money would be applied to paying off the debt on the trailer[.]" Although Blakly's daughter stayed in the trailer for several months, he testified he only drew up a rental agreement because "[s]he wanted one[.]" Moreover, Blakly testified he did not require his daughter to pay rent when she initially began staying in the mobile home. It was not until she allowed her boyfriend to move in with her that Blakly required the payment of rent.

There was no indication that Blakly advertised the motor home for rent and it was uncontroverted that the McCanns approached Blakly about renting the mobile home after hearing about it from a friend. Jeromie McCann specifically testified that Blakly desired to sell them the property, stating he "was really wanting to sell it, you know, so he could pay the bank off."

Examining the record before us, there are genuine issues regarding whether the arrangements by Blakly with his daughter and later with the McCanns were part of a business venture excluded by the policy. In Richard v. Milazzo , 01-2233, p. 4 (La.App. 1 Cir. 11/8/02), 831 So.2d 1055, 1058-59, the court discussed what a business exclusion involves, stating:

As noted in The Law of Liability Ins. , Rowland Long, Matthew Bender & Co., Inc., § 9.06[2]:
Many courts that have examined the definition of business and the business pursuits exclusion agree that a business pursuit must involve two elements: continuity of the activity, and monetary gain, or at least the hope or expectation of monetary gain.

The evidence establishing any "continuity" of rental activity on Blakly's part is disputed. There also is a genuine question whether Blakly received any monetary gain. The testimony indicated the arrangements were just an attempt by him to cover the note he owed the bank.

The jurisprudence has uniformly held "[s]ummary judgment is seldom appropriate when there is a question relating to subjective facts such as intent, knowledge, motive, malice or good faith. Durrosseau [v. Century 21 Flavin Realty, Inc.] 594 So.2d 1036 [ (La.App. 3 Cir.1992) ]; Penalber v. Blount , 550 So.2d 577 (La.1989)." Martin v. CNA Ins. Co. , 96-1342, p. 2*3 (La.App. 3 Cir. 4/2/97), 692 So.2d 677, 678.

Moreover, even were we to find Blakly's handling of the property falls under the business exclusion of the policy, we find it clear American Western has not carried its burden to prove that the "occasional basis" exception to the business exclusion does not apply. This finding also would require this court to reverse the trial court's grant of summary judgment. The case of LeCompte v. Lafayette Ins. Co. , 00-1547 (La.App. 1 Cir. 9/28/01), 813 So.2d 432, involved very similar facts as the instant case. In LeCompte , a little girl was injured while visiting the home of the Mathernes, who, on that date, were renting the property from Walter Sawyer, who had a homeowner's policy of insurance from Lafayette Insurance Company. In that case, the Mathernes, who heard of the possible availability of the property through word of mouth, approached Sawyer about renting the property. They planned to lease the property until they could buy a new home. The Mathernes and Sawyer discussed the Mathernes purchasing the property at issue. When the Mathernes moved out after about ten months, Sawyer did not again lease the property. The record showed Sawyer "had rented the home under similar conditions to one other person" prior. Id. at 435. That renter, Linda Billiot, testified she had also heard of the property through word of mouth that Sawyer might consider leasing the property. When she approached Sawyer he agreed to lease her the property. Billiot testified Sawyer's stated goal was to sell the property.

The court noted the issue before it "involve[d] an exception to an exclusion in a property insurance policy where coverage [was] provided if owned property was rented to others on an 'occasional' basis." Id. at 434. The business exclusion in the Lafayette Insurance policy provided an exception, which stated "(1) On an occasional basis if used only as a residence." Id. This language is identical to the language found in the American Western policy in this case. The LeCompte court found, under the facts of that case, the rental made to the Mathernes was made on an occasional basis and not part of a continuous practice of leasing the property. The court concluded as follows:

Under these undisputed facts, we cannot say as a matter of law that Sawyer's two rentals of the property at issue established a pattern of rentals so uninterrupted, so unbroken, or so persistently repeated at short intervals as to constitute virtually an unbroken series. Nor can we say Sawyer's lease of the property to the Mathernes was connected, extended, or prolonged without cessation or interruption to any prior or subsequent rental of the premises. The attempts to sell intervened. We therefore conclude the rental to the Mathernes was made on an "occasional" basis.
In support of this conclusion we cite the following federal cases. In Insurance Company of North America v. Howard , 679 F.2d 147, 149 (9th Cir.1982), the court concluded under similar circumstances that, "[a] recent widow who leases her home for a one-year period (with or without a 30 day cancellation provision) while she attempts to resolve her future plans has certainly not gone into the business of renting homes. Her action was a temporary expedient and constitutes an occasional rental." In American Family Mutual Insurance Company v. Richardson , 517 F.Supp. 125, 128 (E.D.Mo.1981), the court ruled:
[T]he rental of the old frame house was occasional in that the farmhouse was not rented and/or occupied continuously from tenant to tenant.
* * * * *
Further support for the premise that the rental of the farmhouse was not a business pursuit is evidenced by the fact that the rental of the farmhouse was by oral month to month tenancies; there was no formal advertising of the farmhouse in the news media, and occupants were obtained solely by word of mouth.
....
The undisputed facts before us, however, establish under this definition that Sawyer was not holding the subject property for rental. Rather, he was holding the property for sale, at least during the periods before and after the two tenancies. And the lease to the Mathernes, during whose tenancy the alleged injury occurred, was "occasional" in that it was made as the opportunity required or admitted.
The undisputed facts in this case establish that Sawyer was not continuously renting or holding for rental the premises at issue here when Tayler LeCompte allegedly suffered personal injury. By definition, then, the property was being leased on an occasional basis.

Id. at 436-37.

As in LeCompte , we cannot say at this stage the record establishes, as a matter of law, that Blakly's two rentals of the property at issue "established a pattern of rentals so uninterrupted, so unbroken, or so persistently repeated at short intervals as to constitute virtually an unbroken series." Id. at 436.

The record also indicates Blakly's primary intent after his daughter left the property was to sell, rather than rent. Deborah Armentor, Blakly's wife at the time, stated in her deposition that after Blakly's daughter left the premises, "we had tried to sell it, and we couldn't[.]" The McCanns maintained they discussed renting the mobile home, with the intent to purchase. There was a "Rent to Own Lease Agreement" prepared, though never signed, which contemplated a purchase price conditioned on Blakly's financing and interest rate. According to Jeromie McCann Blakly "was really wanting to sell it, you know, so he could pay the bank off." McCann also testified Blakly supplied him with appraisal documents on the property. Jeromie McCann also testified "[w]e was actually planning on buying the place from [Blakly] until he decided he wanted to take some of the land and move onto it during his divorce." These additional facts are sufficient to put at issue, as in LeCompte, whether Blakly's rental of the property to the McCanns was "connected, extended, or prolonged without cessation or interruption to any prior or subsequent rental of the premises" as to fall within the policy's exclusionary language. Id. at 436. Likewise, as in LeCompte the "attempts to sell intervened" between the two rental periods. Id. at 436.

American Western argues LeCompte is an outlier and concludes its "ruling is questionable." It offers several decisions from other states in support of its contention that the occasional rental basis exception does not apply herein. We disagree and find, at a minimum, the holding in LeCompte has not been expressly rejected by the courts in Louisiana. As in LeCompte , the record before us establishes there is a dispute as to whether Blakly was continuously renting or holding for rental the premises at issue when Plaintiff sustained his injuries. Considering the evidence in the record, there are genuine issues of material fact as to whether the property at issue was being leased on an occasional basis. Therefore, the trial court erred in granting American Western's motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings. All costs of this appeal are assessed against defendant-appellee, American Western Home Insurance Company.

REVERSED AND REMANDED.


text:
    IN RE: Virginia Hardin DERBY
    18-381
    Court of Appeal of Louisiana, Third Circuit.
    December 28, 2018
    Michael H. Schwartzberg, Vamvoras, Schwartzberg & Antoon, LLC, 1111 Ryan Street, Lake Charles, LA 70601, (337) 433-1621, COUNSEL FOR APPELLANT: Virginia Derby Jordan.
    James A. Babst, Hamilton, Brown & Babst, 228 St. Charles Ave., Suite 1028, New Orleans, LA 70130, (504) 309-5783, COUNSEL FOR INTERICT: Virginia Hardin Derby (Now Deceased).
    Ronald S. Haley, Jr., Haley & Associates, 8211 Goodwood Blvd., Suite E, Baton Rouge, LA 70806, (225) 663-8869, COUNSEL FOR APPELLEE: Bessie Derby Miller.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   COOKS, Judge.

On September 19, 2005, Virginia Derby Jordan, filed an interdiction proceeding in the Fourteenth Judicial District Court. The interdict was Ms. Jordan's mother, Virginia Hardin Derby. At the time of the interdiction proceedings, Ms. Derby was a ninety (90) year-old resident of a nursing home in New Orleans. Ms. Derby suffered from dementia and other physical problems that prevented her from caring for herself. At the pertinent time, Ms. Derby had been evacuated under emergency conditions prompted by the impending arrival of Hurricane Katrina. She was transported from St. Anna's Residence in New Orleans to the Holly Hill House Nursing Home in Sulphur, Louisiana.

Ms. Jordan maintained she was forced to initiate the interdiction proceeding because her older sister, Bessie Derby Miller, who had Ms. Derby's power of attorney, made no effort to evacuate Ms. Derby from harm's way as Hurricane Katrina approached New Orleans.

At the interdiction determination, the trial judge temporarily interdicted Ms. Derby and appointed Ms. Jordan as temporary curator. The trial judge further authorized the withdrawal of $10,000.00 from Ms. Derby's bank account for her transportation and care expenses. Two days prior to Hurricane Rita making landfall in Southwest Louisiana, Ms. Jordan drove Ms. Derby to her home in Virginia.

Hurricane Katrina caused substantial property damage and loss of life for those who resided in Southern Louisiana. Hurricane Rita, only a few weeks following Katrina, caused substantial damage to property and threatened the lives of those who lived in Southwest Louisiana

On October 13, 2005, Ms. Miller, who was a resident of Maryland, filed an "Answer and Reconventional Demand" in the Fourteenth Judicial District Court. Ms. Miller asked to be appointed curator and noted she had, prior to the interdiction proceedings, a valid power of attorney over her mother. She also denied her mother faced any imminent harm as a result of any inaction on her part.

After a telephone conference, the trial court continued in effect the previous order interdicting Ms. Derby. The trial court found the appointment of Ms. Jordan as temporary curator had expired and appointed Ms. Miller the temporary curator. Ms. Jordan's expenditures to date were approved, and the trial court authorized further expenditures by Ms. Jordan, who was housing Ms. Derby, up to the remainder of the $10,000.00 previously withdrawn.

On March 6, 2007, Ms. Jordan filed a "Motion to Remove Bessie Derby Miller as Temporary Curator and Substitute Virginia T. Derby Jordan as Preliminary Curator." Ms. Jordan alleged her mother was moved from her home in Virginia to the home of Ms. Miller's daughter's next-door neighbor in North Carolina. She further alleged that, Ms. Miller thereafter moved her mother back to another New Orleans nursing home in 2006, largely because of Ms. Miller's refusal to pay for services performed by Ms. Derby's prior nursing home. That same day, Ms. Jordan also filed for a Permanent Injunction Prohibiting the Sale of Personal Property, which sought to prohibit the sale of certain property of Ms. Derby at auction. A hearing was held on the request and a preliminary injunction was issued prohibiting the sale of those items.

On April 24, 2007, Ms. Miller filed a petition to have herself appointed and confirmed as permanent curator. A reconventional demand was also filed against Ms. Jordan for damages, as well as an opposition to the motion to remove Ms. Miller as temporary curator. Ms. Miller requested court costs and attorney fees incurred in setting aside Ms. Jordan's appointment as temporary curator.

A hearing was held beginning on May 29, 2007 and the court ruled on all issues. The Motion to Remove Bessie Derby Miller as Temporary Curator and Substitute Virginia T. Derby Jordan as Preliminary Curator was denied by the trial court. Ms. Miller was appointed permanent curator for Ms. Derby. Ms. Miller was ordered to submit to the court a motion and documentation to have damages and appropriate costs assessed against Ms. Jordan, and Ms. Jordan was provided the opportunity to oppose said motion. Ms. Jordan was ordered to present written proof to the court of her ownership of any items which were the subject of the temporary restraining order enjoining the sale of various items of Ms. Derby at auction.

On January 17, 2008, after continued disagreement as to the access and physical housing of Ms. Derby, as well as property ownership issues, the trial court issued judgment casting Ms. Jordan with various attorney fees and court costs in the amount of $122,220.76. The judgment also reserved "to the Curator, Bessie Derby Miller, on behalf of the estate of the Interdict, to pursue [sic] all claims for damages resulting from the issuance of a Temporary Restraining Order stopping the EBay action [sic] of certain items belonging to the estate of the Interdict, subject to a further ruling on this court regarding the ownership of said items." The trial court then hand wrote on the Judgment the notation "[t]o be set at hearing on March 11, 2008 at 9:00 a.m."

Ms. Miller filed a Motion for Partial Summary Judgment on February 14, 2008 to which Ms. Jordan filed an Opposition. The trial court set a hearing on the motion for partial summary judgment for March 11, 2008, which was rescheduled to April 7, 2008. That hearing was never held, as Ms. Derby passed away on April 4, 2008.

On August 27, 2008, a "Closing Order" was entered by the trial court, which stated in pertinent part as follows:

The court having been informed that the interdict, Virginia Hardin Derby, died on the 4th day of April, 2008, in the Parish of Orleans, and having been provided with a certified copy of the certificate of death attesting to such fact, which certified copy is attached hereto, there being no dispute in law that an interdiction proceeding abates on the death of the interdict but that the curatrix remains responsible to file with the court a final account pursuant to [La.Code Civ.P.] arts. 3333, 4393, 4398, and 4569.
IT IS ORDERED that this matter be deemed ABATED as of April 4, 2008, the date of the interdict's death;
IT IS FURTHER ORDERED that Bessie Derby Miller, curatrix at the time of the interdict's death, file a final account with the court on or before the 31st day of October, 2008; and
IT IS FURTHER ORDERED that the Clerk hold this matter open only for the filing of the final accounting and treat it otherwise as having been CLOSED as of April 4, 2008,

Apart from the final accounting by Ms. Miller, there was no other action taken, including any collection efforts, until the revival action at issue in this appeal.

On December 27, 2017, Ms. Miller filed an "Ex Parte Motion for Revival" seeking to revive the judgment of January 17, 2008. Attached to the motion was an "Affidavit of Holder & Owner of Judgment of January 17, 2008." That same day, the trial court granted the ex parte motion and revived the judgment in favor of Ms. Miller. This appeal followed. Ms. Jordan argues the trial court erred in granting the ex parte motion for revival.

ANALYSIS

A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered. La.Code Civ.P. art. 2031. That article provides as follows:

A. A money judgment may be revived at any time before it prescribes by an interested party by the filing of an ex parte motion brought in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the prescriptive period applicable to the judgment. The motion to revive judgment shall be accompanied by an affidavit of the holder and owner of the judgment, stating that the original judgment has not been satisfied. A judgment shall thereupon be rendered reviving the original judgment. No citation or service of process of the motion to revive shall be required. The court may order the judgment debtor to pay additional court costs and reasonable attorney fees in connection with the judgment revival action. Notice of signing of the judgment of revival shall be mailed by the clerk of court to the judgment debtor at his last known address as reflected in the suit record.

"A money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an appeal has been taken, it is prescribed by the lapse of ten years from the time the judgment becomes final." La.Civ.Code art. 3501.

Ms. Jordan contends the January 17, 2008 judgment revived by the trial court was a partial ruling in the case with pending, unresolved issues between the parties and the case was abated upon the death of Ms. Derby, which under La.Code Civ.P. art. 1915(B) renders the judgment interlocutory and not final. In Interdiction of Cahn , 523 So.2d 4 (La.App. 4 Cir.1988), the provisional curatrix attempted to tax costs incurred in removing the former curatrix to the estate of the interdict. The court in Cahn held, because the judgment was not final before the interdict died, the judgment could not be enforced. The court reasoned:

Had that judgment become final before the interdict died, that position would have been correct. [ La.Code Civ.P. art. 4551 ]. However once abatement occurs, whether at the trial or appellate level, the proceedings cease and the only matter that can be considered is the final accounting by the curatrix. Ruiz v. Pons , [141 La. 110, 74 So. 713 (1917) ]. Therefore[,] the trial court could not assess costs once the proceedings abated. Thus, since the interdiction suit abated prior to the judgment becoming final, each party must pay his own costs. In re Jones , [117 La. 106, 41 So. 431 (1906) ].

Id. at 5.

We find the same reasoning applies in the present case. The January 17, 2008 judgment clearly set forth there were still pending issues that were not resolved on the date the judgment was signed. These matters remained unresolved on the date of the interdict's death (a hearing on the matters was set to be heard April 7, 2008, three days after Ms. Derby's death). Thus, Ms. Jordan argues the judgment was not final and appealable on the date of Ms. Derby's death, as it did not decide all of the pending issues between the parties. Louisiana Code of Civil Procedure Article 1915(B) provides:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Ms. Jordan notes the January 17, 2008 judgment did not have any language designating it as a final judgment. Therefore, we agree with Ms. Jordan that the January 17, 2008 judgment was an interlocutory judgment which could have been "revised at any time prior to rendition of the judgment." Because the judgment was not final and appealable, the interdiction proceedings abated upon Ms. Derby's death. As the court in Cahn , 523 So.2d at 5, stated "once abatement occurs, whether at the trial or appellate level, the proceedings cease and the only matter that can be considered is the final accounting by the curatrix." Accordingly, the January 17, 2008 interlocutory judgment was not a final judgment and not susceptible of revival thereafter.

DECREE

For the foregoing reasons, the judgment of the trial court granting Ms. Miller's Motion for Revival is reversed. Costs of this appeal are assessed to appellee, Bessie Derby Miller.

REVERSED.

      Ms. Jordan also argued Ms. Miller did not have standing to file the ex parte motion for revival because her appointment as curator was extinguished by operation of law upon the death of Ms. Derby, the interdict. Ms. Jordan further argues the January 17, 2008 judgment was rendered in Ms. Miller's capacity as Curator of Ms. Derby and there was no reference to Ms. Miller individually. The action filed by Ms. Miller is not a personal action, but one that was brought on behalf of the interdict. Interdiction proceedings are purely personal to the interdict and once the interdict dies the proceedings are abated. Ruiz v. Pons , 141 La. 110, 74 So. 713 (1917) ; In re Jones , 117 La. 106, 41 So. 431 (1906) ; In re Lambert , 115 La. 469, 39 So. 447 (1905). Thus, Ms. Miller's appointment as curator, as well as Ms. Miller's procedural capacity to act as Curator, ended and was extinguished by the death of the interdict. Any action for the collection of this judgment was for the estate of Ms. Derby and not on behalf of Ms. Miller personally. Therefore, even if the January 17, 2008 judgment was a final judgment, Ms. Miller would not have standing to file the Motion for Revival in her personal capacity.


text:
    Linda HARRIS, et al. v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-372, CA 18-370, CA 18-371
    Court of Appeal of Louisiana, Third Circuit.
    January 9, 2019
   Robert E. Landry, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, #900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, Ste 2400, New Orleans, LA 70112, (504) 589-9700 COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Marshall Joseph Simien, Jr., Simien Law Firm, One Lakeshore Drive, Suite 1110, Lake Charles, LA 70629, (337) 497-0022, COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Wells Talbot Watson, Jake D. Buford, Bagget, McCall, Burgess, Watson & Gaughan, 3006 Country Club Road, Lake Charles, LA 70605, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Rickey Haley, Gardenia Amos, Sara Stevens, Bill Peltier, Linda Harris

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Sara Stevens, Gardenia Amos, Linda Harris, Rickey Haley

Kirk Albert Patrick, III, Heath Savant, Donahue, Patrick & Scott, 450 Laurel St., Suite 1600, Baton Rouge, LA 70801, (225) 214-1908, COUNSEL FOR DEFENDANT: R & R Construction, Inc.

Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.

PERRET, Judge.

For the reasons set forth in the companion and consolidated case hereto, Arceneaux v. Citgo Petroleum Corp. , 18-370 (La.App. 3 Cir. 1/9/19), --- So.3d ----, 2019 WL 141274, the judgment of the trial court in favor of Plaintiffs-Appellees and against Appellant, CITGO Petroleum Corporation, is affirmed. All costs of this appeal are assessed against Appellant, CITGO Petroleum Corporation.

AFFIRMED.


author: ISHEE, JUSTICE, FOR THE COURT: KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    THE DOOR SHOP, INC. v. ALCORN COUNTY ELECTRIC POWER ASSOCIATION
    NO. 2017-CA-00956-SCT
    Supreme Court of Mississippi.
    November 8, 2018 Rehearing Denied January 31, 2019
    ATTORNEY FOR APPELLANT: NICHOLAS RYAN BAIN
    ATTORNEY FOR APPELLEE: WILLIAM HULL DAVIS, JR., CORINTH
    EN BANC.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. From November 2004 to January 2011, The Door Shop, Inc., utilized $36,081.86 of electricity from Alcorn County Electric Power Association (ACE). But because of a billing error, it was charged only $10,396.28. Upon discovering the error, ACE sought to recover the $25,658.58 difference via supplemental billing. The Door Shop refused to pay, which prompted ACE to file suit in the Alcorn County Circuit Court. ACE maintained that The Door Shop was liable for the underbilled amount and moved for summary judgment, which the circuit court granted. This appeal followed. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. ACE is the state-authorized entity charged with providing electric-power services to Alcorn County, Mississippi. It receives and distributes its electric power via a wholesale contract with the Tennessee Valley Authority (TVA). The Door Shop, an Alcorn County business, applied for new services from ACE in October 2004. By executing ACE's "Application for Service," The Door Shop bound itself to ACE's bylaws.

¶ 3. ACE's Engineering and Operations Manager, Jason Grisham, explained ACE's procedures for establishing new accounts. First, ACE installs an electric meter, which must be linked to a current transformer. The transformer decreases the amount of current registered by the meter, as the actual current transferred through the electric cable is greater than the current rating of the meter. The result is that the meter measures only a fraction of the actual electricity used. Here, The Door Shop's meter operated on a 40:1 ratio-that is, for every 40 kilowatt hours of electricity used, The Door Shop's meter would register only 1 kilowatt hour of use. Therefore, The Door Shop's meter should have been corrected with a "multiplier" of 40.

¶ 4. Once the meter is installed and the multiplier is determined, ACE's billing department is made aware of the multiplier so that it may be applied to the customer's account. But The Door Shop's multiplier-though reported to ACE's billing department-was not applied, leaving in place the default multiplier of 1. ACE's mistake resulted in The Door Shop's being charged for only 1/40 of the electricity actually used. The error persisted from November 2004 until late January 2011. After discovering the error, ACE corrected the multiplier, adjusted its billing to reflect The Door Shop's actual amount of electricity used, and calculated the difference. ACE ultimately determined that The Door Shop had been underbilled by $25,685.58.

¶ 5. ACE then sent The Door Shop a supplemental bill for the underbilled amount. ACE did so under Article II, Section 12, of its bylaws, which outlines ACE's rights and procedures for collecting undercharged amounts due to billing errors. With The Door Shop unwilling to pay, ACE filed suit to collect the amount due.

¶ 6. The Door Shop filed a motion to stay the proceedings, arguing that the dispute pertained to ACE's quality of service. And as a service issue, The Door Shop asserted that the Mississippi Public Service Commission (MPSC), by statute, possessed exclusive jurisdiction over the matter. But the circuit court rejected The Door Shop's characterization, instead finding that the claims regarded "rates," which encompassed amounts charged and efforts at collection. Holding further that the MPSC lacks jurisdiction over matters involving rates, the circuit court denied The Door Shop's petition to stay the proceedings. Because no dispute existed as to ACE's adjusted accounting or the actual amount of electricity used by The Door Shop, ACE then moved for, and was granted, summary judgment. The Door Shop timely appealed.

STANDARD OF REVIEW

¶ 7. Decisions granting or denying motions to stay proceedings are reviewed for abuse of discretion. Prescott v. Leaf River Forest Prods. Inc. , 740 So.2d 301, 307 (Miss. 1999). Jurisdiction, on the other hand, is a question of law, which we review de novo. Pekin Ins. Co. v. Hinton , 192 So.3d 966, 970 (Miss. 2016). This Court likewise reviews a circuit court's grant of summary judgment de novo. Daniels v. Crocker , 235 So.3d 1, 6 (Miss. 2017).

DISCUSSION

¶ 8. The pertinent issues on appeal are, first, whether the circuit court erred in denying The Door Shop's motion to stay the proceedings by holding that the MPSC lacked jurisdiction, and, second, whether the circuit court erred in granting ACE summary judgment. The classification of ACE's claim and its jurisdictional effect, however, are the principal issues to be resolved, as the former directly affects the latter. We hold that the circuit court correctly classified the dispute as one involving "rates," the ultimate jurisdictional issue. We likewise conclude that the circuit court correctly granted ACE summary judgment.

I. Whether the circuit court erred in denying The Door Shop's motion to stay the proceedings by holding that the MPSC lacked jurisdiction.

¶ 9. "Subject matter jurisdiction is a threshold inquiry which must be determined before a court may proceed to the merits." Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 821 (Miss. 2009). Much of The Door Shop's argument hinges on its belief that the MPSC-not the circuit court-possessed exclusive jurisdiction over the matter. To resolve this jurisdictional issue, we simply look to Mississippi Code Section 77-3-5 -the statute outlining the MPSC's jurisdictional parameters. See Miss. Code Ann. § 77-3-5 (Rev. 2018).

¶ 10. On one hand, Section 77-3-5 vests the MPSC with "exclusive original jurisdiction over the intrastate business and property of public utilities." Id. On the other hand, however, Section 77-3-5 divests the MPSC of jurisdiction in certain realms, providing,

[T]he [MPSC] shall not have jurisdiction over the governance, management or other internal affairs of entities as described by paragraphs (b) and (c) below. Moreover, [MPSC] shall not have jurisdiction to regulate the rates for the sales and/or distribution :
....
(b) Of gas or electricity by cooperative gas or electric power associations to the members thereof as consumers , except as provided by Section 77-3-17, where service is rendered in a municipality[.]

Id. (emphasis added). Thus, the MPSC lacks jurisdiction in all matters relating to the governance, management, or internal affairs of entities like ACE, as well as to the "rates" for sale and distribution of electricity by the same. See id. And so, by concluding this case pertained to "rates," the circuit court held that Section 77-3-5 divested the MPSC of exclusive jurisdiction. For that reason, we must determine whether ACE's claims fall within the definition of the term "rate" as referenced in Section 77-3-5.

¶ 11. On this question, The Door Shop insists that the issues presented involve "quality of service" rather than "rates." ACE is responsible, The Door Shop argues, for installing a customer's electrical meter. And, after installation, ACE is responsible for applying a multiplier. Thus, failure to apply a correct multiplier results in improper installation. And because ACE failed to apply the multiplier here, it provided The Door Shop with defective service; and defective service pertains to quality of service-not rates. Like the circuit court, however, we find this argument lacks merit.

¶ 12. We begin with service quality. The Door Shop points to our Public Utilities Act, where "service" is defined as "the sale or other disposition of energy at the lowest cost consistent with sound economy, public advantage[,] and the prudent conduct of the business of the authority. " Miss. Code Ann. § 77-5-3(l ) (Rev. 2018) (emphasis added). To The Door Shop, ACE's failure to apply the correct multiplier means that ACE failed to act in a "prudent" manner. This all but concludes The Door Shop's argument as to service quality and prudence. So, keeping in mind that ACE instituted this suit to collect an underbilled amount, let us now turn to "rates."

¶ 13. Mississippi Code Section 77-3-3(e) defines what constitutes a "rate," providing:

The term "rate" means and includes every compensation, charge , fare, toll, customer deposit, rental and classification, or the formula or method by which such may be determined , or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge , fare, toll, rental or classification[.]

Miss. Code Ann. § 77-3-3(e) (Rev. 2018) (emphasis added).

¶ 14. Reviewing how broadly the term "rate" is defined, we conclude that this case falls within the purview of "rates." To that end, this Court has held that, when taken together, Sections 77-3-3(e) and 77-3-5 bar "the [M]PSC from regulating not only the amounts charged by nonprofit public utilities for their services, but also the formula used to calculate that amount and any rules or regulations related to this process." Miss. Rural Water Ass'n. Inc. v. Miss. Pub. Serv. Comm'n , 222 So.3d 288, 293 (Miss. 2017).

¶ 15. Applied here, ACE argues, and we agree, that the substance of its claims invokes many of the terms listed in Section 77-3-3(e). For example, ACE sought "compensation" for a "charge" related to a "service, product, or commodity" it supplied The Door Shop. Going further, the error prompting this suit derived from ACE's failure to apply the correct multiplier to The Door Shop's account-and the multiplier pertains to "the formula or method by which [ACE's charges] may be determined." Lastly, ACE relied upon its "rules, regulations, practices, [and] contracts relating" to the sought-after "compensation" or "charge." Put simply, this case involves "rates," as defined under Section 77-3-3(e).

¶ 16. As a result, the circuit court properly characterized ACE's claims. And, by extension, the circuit court correctly concluded that Section 77-3-5 deprived the MPSC of jurisdiction. Therefore, the circuit court did not err in denying The Door Shop's motion to stay the proceedings. Prescott , 740 So.2d at 307. We find this issue without merit.

II. Whether the circuit court erred in granting ACE summary judgment.

¶ 17. As to summary judgment, our standard is well established. "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." M.R.C.P. 56(c). The evidence must be viewed in the light most favorable to the nonmoving party, which here is The Door Shop. Mitchell v. Ridgewood E. Apartments LLC , 205 So.3d 1069, 1073 (Miss. 2016). Nonetheless, The Door Shop "must set forth specific facts showing that there are genuine issues for trial." Id. (citations omitted).

¶ 18. Because it found no genuine disputes as to any material facts, the circuit court granted ACE summary judgment. In so ruling, the circuit court held that ACE's bylaws contractually bound The Door Shop. Specifically, the circuit court found that Article II, Section 12, of ACE's bylaws required The Door Shop to remit payment. Disagreeing, The Door Shop argues that genuine questions remain as to whether ACE's bylaws actually entitle it to recover the underbilled amount. Ultimately, we find that the bylaws do entitle The Door Shop to such relief.

¶ 19. To begin, we recount the material facts not in dispute (i.e., facts The Door Shop admittedly has no evidence to contest): (1) that the electrical meter installed at The Door Shop in November 2004 was accurate; (2) that the correct multiplier that should have been applied was 40 rather than 1; (3) that 346,680 kilowatt hours were actually used between November 2004 and January 2011; and (4) that ACE's adjusted accounting and supplemental bill of $25,685.58 was accurate. There being no dispute as to amounts consumed and owed, the central issue is whether ACE's bylaws entitle it to recovery.

¶ 20. The answer to this question begins with reviewing ACE's application-for-service form. When The Door Shop applied for service, it specifically and contractually agreed to the following:

I hereby apply for membership in the Alcorn County Electric Power Association, and agree , if accepted as a member thereof, to conform to the charter by-laws of [ACE] , copies of which have been made available to me at the office of [ACE] .... The applicant agrees that this application is subject to [ACE]'s rules and regulations , ... and that these rules and regulations are a part of this agreement.

(Emphasis added.) Charles Bain (a former co-owner of The Door Shop) admitted through deposition testimony that he both executed the application for service on The Door Shop's behalf and that he "agreed to abide by [ACE's by-laws.]" And Bryan Bain (The Door Shop's president) likewise admitted through deposition testimony that The Door Shop had agreed to ACE's bylaws. Therefore, there is no genuine dispute that The Door Shop is obligated to comply with ACE's bylaws.

¶ 21. The specific bylaw at issue, Article II, Section 12, provides,

Section 12. Under Billing. In the event that a billing or other error by [ACE] results in a member being undercharged for the actual amount of electricity provided to the member by [ACE], then upon discovery of the error, and regardless of the cause or duration of the error, [ACE] will issue a supplemental billing reflecti[ng] the corrected amount owed by the member; and the member shall remit payment to [ACE] for such supplemental billing . [ACE] may make arrangements for the payment of such supplemental billing on an installment basis, subject to such terms and conditions as may be approved by [ACE]'s Board of Directors.

(Emphasis added.) A simple reading of this bylaw reveals that ACE's members "shall remit payment," "regardless of the cause or duration of [an] error" "upon discovery of the error[.]" Applied here, The Door Shop is obligated to remit payment-the error, however long in duration, was discovered by ACE and, pursuant to the bylaw, The Door Shop received a supplemental bill reflecting the corrected amount owed (which, again, is not in dispute). That, however, is not the end of it.

¶ 22. Indeed, The Door Shop makes much ado over the fact that the bylaw above was not in force when it applied for service in 2004-rather, ACE adopted it in 2009. So it reasons that ACE did not authorize itself to collect undercharged amounts before 2009. But Article VII, Section 12, of ACE's 1997 bylaws, which were in effect when The Door Shop applied for service in 2004, provided,

Section 12. Purchase of Electric Energy. Each member shall , as soon as electric energy is available, purchase from [ACE] all electric energy used on the premises described in the application for membership, and shall pay promptly therefore monthly at such rates as may be fixed by the Board of Directors from time to time .

(Emphasis added.) The crux of the 1997 provision is this: ACE's members must pay for (i.e., purchase) all electric energy used on the premises. Recalling that there is no dispute about the amount of electricity The Door Shop consumed, its contractual obligation to purchase from ACE "all" the electricity it admittedly "used" has existed since The Door Shop became a member.

¶ 23. Moreover, the circuit court correctly noted that Mississippi Code Section 77-5-223 empowers ACE's Board of Directors "[t]o adopt and amend by-laws for the management and regulation of the affairs of [ACE]." Miss. Code Ann. § 77-5-223(a) (Rev. 2018). Outlining this right in its 1997 bylaws, Article X, Section 4, provided that ACE's Board of Directors was at liberty to alter, amend, repeal, or adopt new bylaws so long as certain voting standards were satisfied. That is precisely what ACE's Board did when it adopted the 2009 underbilling amendment specifically outlining its underbilling procedures. Thus, ACE's Board acted pursuant to lawful authority, and The Door Shop had notice of the Board's power to do so. Any argument otherwise is without merit.

¶ 24. Even so, in a last-ditch effort to circumvent its contractual obligations, The Door Shop presents a two-pronged argument: first, that to hold it liable for the undercharged amount equates to "rate discrimination"; and second, that any underbilling should be capped at six years. We find no merit in either argument, as addressed below.

A. Rate Discrimination

¶ 25. "Rate discrimination," which state and federal law prohibits, occurs when consumers of the same class (i.e., residential or commercial) are charged different rates or are provided with rebates or other concessions, directly or indirectly. See generally Miss. Code Ann. § 77-5-225 (Rev. 2018); 16 U.S.C. § 831k (2012). Our law, Mississippi Code Section 77-5-225, states,

[T]he corporate purpose of a corporation shall be to render service to its members only. Any person may become and remain a member if such person shall use energy supplied by such corporation and shall comply with the terms and conditions in respect to membership contained in the bylaws of such corporation, which terms and conditions shall be nondiscriminatory .

Miss. Code Ann. § 77-5-225 (emphasis added). And the relevant federal statute, which governs contracts entered into with the Tennessee Valley Authority and which likewise governs ACE, provides,

That all contracts entered into between [TVA] and any municipality or other political subdivision or cooperative organization shall provide that the electric power shall be sold and distributed to the ultimate consumer without discrimination as between consumers of the same class , and such contract shall be voidable at the election of the [TVA] if a discriminatory rate, rebate, or other special concession is made or given to any consumer or user by the municipality or other political subdivision or cooperative organization[.]

16 U.S.C. § 831k (emphasis added).

¶ 26. Thus, ACE cannot discriminate among its members by charging more or less of members in the same class. For that reason, ACE must attempt to collect from The Door Shop the undercharged amounts-to do otherwise would permit prohibited discrimination, state and federal, among ratepayers in the same class. And while The Door Shop maintains that remitting payment to ACE results in discrimination, the opposite rings true. For ACE not to pursue payment from The Door Shop discriminates against other members in the same class as The Door Shop who have purchased from ACE all electricity consumed. Such a windfall in favor of The Door Shop cannot be tolerated.

B. Six-Year Overbilling or Underbilling Limit

¶ 27. As to The Door Shop's argument that any repayment should be capped at six years, we disagree. The Door Shop's argument is premised upon recently enacted law, in which our Legislature provided,

In any action or regulatory proceeding arising from any overbilling or underbilling by a corporation, no collection, reimbursement, or other relief may be awarded for underbillings or overbillings occurring more than six (6) years prior to the commencement of the action or regulatory proceeding.

Miss. Code Ann. § 77-5-259 (Rev. 2018). But, as The Door Shop concedes, Section 77-5-259 was enacted after the filing of ACE's January 2014 complaint. And, as this Court has held, "[i]f the statutory language mandates that the statute is to apply from and after passage, it is not to be applied retroactively to causes of action which accrued prior to passage of the statute." Jones v. Baptist Mem'l Hosp.-Golden Triangle, Inc. , 735 So.2d 993, 998 (Miss. 1999). Here, the statute makes clear it does not apply retroactively; therefore, it cannot be applied to this action, which accrued prior to the statute's passage. See Miss. Code Ann. § 77-5-259. As a result, we hold that ACE was entitled to judgment as a matter of law, and that the circuit court did not err in granting summary judgment.

CONCLUSION

¶ 28. At bottom, The Door Shop purchased but a fraction of the electricity it admittedly used. As a result, ACE sought payment for the undercharged amount. The circuit court held that, as a matter of law, The Door Shop must pay. We agree and affirm the circuit court's judgment.

¶ 29. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. MAXWELL, J., NOT PARTICIPATING.

KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 30. Although I agree with the majority's conclusion that the Mississippi Public Service Commission (MPSC) lacked jurisdiction in this case, I respectfully disagree with the majority's statement in footnote 7 that The Door Shop failed to raise Mississippi Code Section 15-1-5 as an affirmative defense. The Alcorn County Electric Power Association (ACE) filed its complaint on January 17, 2014. The Door Shop filed its answer on May 28, 2014, in which it stated, "Defendant pleads all applicable Statute of Limitations." Subsequently, the Mississippi Legislature enacted Mississippi Code Section 77-5-259, which provides,

In any action or regulatory proceeding arising from any overbilling or underbilling by a corporation, no collection, reimbursement, or other relief may be awarded for underbillings or overbillings occurring more than six (6) years prior to the commencement of the action or regulatory proceeding.

Miss. Code Ann. § 77-5-259 (Rev. 2018). The Door Shop, in its response to ACE's motion for summary judgment, argued that Section 77-5-259 barred recovery for any underbilling that occurred more than six years from the date this suit was filed, January 17, 2014. Although I agree with the majority's finding that Section 77-5-259 does not apply retroactively, I would find that The Door Shop sufficiently raised a statute-of-limitations defense.

¶ 31. The Door Shop pleaded all applicable statute of limitations in its answer to ACE's complaint. In its response to ACE's motion for summary judgment, The Door Shop again argued that this case was barred by the statute of limitations. Mississippi Code Section 15-1-49 provides a general three-year statute of limitations to "all actions for which no other period of limitation is prescribed." Miss. Code Ann. § 15-1-49 (Rev. 2012). Additionally, Mississippi Code Section 15-1-5 states,

The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.

Miss. Code. Ann. § 15-1-5 (Rev. 2012). Pursuant to this State's notice-pleading standard, The Door Shop's answer was sufficient to preserve the statute of limitations as a defense. See M.R.C.P. 8(c), (e) ; Scafidi v. Hille , 180 So.3d 634 650 (Miss. 2015) ("Mississippi is a 'notice pleadings' state.... 'Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.' "). "Just as Rule 8(a) requires only that the plaintiff give the defendant notice of the claims, Rule 8(c) requires only that the defendant give the plaintiff notice of the defense." M.R.C.P. 8 Advisory Comm. Notes. I would find that, although The Door's Shop referenced the incorrect statute in its motion for summary judgment, it sufficiently raised as an affirmative defense that the general statute of limitations barred recovery of underbilled amounts.

¶ 32. Further, I respectfully dissent from the majority's holding that ACE's amended bylaw applied retroactively. I would find that a genuine issue of material fact exists regarding whether ACE empowered itself to recover undercharged amounts prior to 2009.

¶ 33. The Door Shop applied for new services from ACE in October 2004 and, in doing so, bound itself to ACE's bylaws. The Door Shop submitted full payment for the amount ACE billed each month. However, due to a clerical error, ACE had undercharged The Door Shop from 2004 to 2011. Pursuant to Article II, Section 12, of ACE's bylaws, upon discovering the error in 2011, ACE corrected its mistake and billed The Door Shop for the undercharged amount, totaling $25,685.58. Article II, Section 12, of ACE's bylaws provides,

Section 12. Under Billing. In the event that a billing or other error by [ACE] results in a member being undercharged for the actual amount of electricity provided to the member by [ACE], then upon discovery of the error, and regardless of the cause or duration of the error, [ACE] will issue a supplemental billing reflecti[ng] the corrected amount owed by the member; and the member shall remit payment to [ACE] for such supplemental billing....

However, Article II, Section 12, was adopted in 2009. Prior to 2009, and when The Door Shop applied for new services, ACE's bylaws contained no provision authorizing itself to collect undercharged amounts. The Door Shop argues that, because that provision of the bylaws was not adopted until five years after it applied for service, it should only be responsible for payment from the date that the bylaw was adopted.

¶ 34. The majority finds that, regardless of when Article II, Section 12, was adopted, Article VII, Section 12, of ACE's 1997 bylaws authorized ACE to collect undercharged amounts. I disagree. Article VII, Section 12, states,

Section 12. Purchase of Electric Energy. Each member shall, as soon as electric energy is available, purchase from [ACE] all electric energy used on the premises described in the application for membership, and shall pay promptly therefore monthly at such rates as may be fixed by the Board of Directors from time to time.

The majority reasons that the above provision, which had been adopted in 1997, required members to pay for all electricity used on the premises. Although Article VII, Section 12, states that the member should pay for "all electric energy used on the premises," the provision contained no procedure to collect the undercharged amount until the adoption of the new bylaw in 2009. See Nibco Inc. v. City of Lebanon , 680 F. App'x. 428, 430 (6th Cir. 2017). In Nibco , a misapplied multiplier caused a municipality to underbill a customer for electricity over a period of sixty-five months, resulting in an undercharge of $1.27 million. Id. The Sixth Circuit held that, because the City of Lebanon's ordinance was silent about any procedure or protocol for addressing or correction billing mistakes, it had no authority to justify backbilling. Id. at 435.

¶ 35. Similarly, in this case, prior to 2009, ACE's bylaws contained no provision authorizing recoupment for undercharges. Evidence of this is shown by ACE's amendment of its bylaws in 2009, which stated that upon discovery of the error, ACE would issue a supplemental billing reflecting the correct amount owed by the member. Thus, the 2009 amendment provided ACE's procedure to recover for undercharged amounts. The bylaw adopted by the Board in 2009, if applied retroactively, would enable the Board to recover for billing errors dating back to ACE's inception in 1934. That interpretation would be neither reasonable nor fair. In a similar case, the Supreme Court of Georgia reasoned,

It is simply unjust to require an innocent consumer to bear the entire cost of a supplier's mistake where, as here, there is no time limit on back billings. Armed with absolute immunity for an indefinite time, the supplier has little incentive to establish reasonable procedures to guarantee that its meters are properly calibrated or that its bills are computed accurately.

Brown v. Walton Elec. Membership Corp. , 272 Ga. 453, 531 S.E.2d 712, 713 (2000). Here, The Door Shop agreed to abide by ACE's bylaws when it applied for service in 2004. However, not until 2009 did ACE authorize itself to recover for underbilled amounts. The Door Shop promptly paid in full for the amount of electric energy for which it was billed each month and, through no fault of its own, was undercharged for the amount of electricity it had used. It would be unjust to require The Door Shop to bear the cost of ACE's mistake for an indefinite time. Because prior to 2009 ACE's bylaws had no provision authorizing it to collect on underbilled accounts, I would find that a material issue of fact exists about whether ACE is able to collect any underbilled amount prior to that point. Therefore, I would reverse the trial court's grant of summary judgment and would remand this case for a trial on the merits.

KITCHENS, P.J., JOINS THIS OPINION.

      ACE provided this helpful example: "[I]f the Door Shop's meter reading one month was 10 kilowatt hours, the actual usage was in fact 400 kilowatt hours (10 kWh x 40 multiplier = 400 kWh). Therefore, the bill sent to the Door Shop for that month should be 400 kilowatt hours."

      See Miss. Code Ann. § 77-3-5 (Rev. 2018).

      We note that Section 77-3-5 was amended effective July 1, 2018. See 2018 Miss. Laws ch. 402, § 24. The amended language provides,
      [T]he [MPSC] shall have exclusive original jurisdiction over the intrastate business and property of public utilities and, for purposes of clarification of the existing scope of said exclusive original jurisdiction, such exclusive original jurisdiction extends, but is not limited to: the establishment of retail rates; challenges, including customer complaints, to the amount of a retail rate or customer bill or whether such rate is just and reasonable; and challenges to the validity or accuracy of rates charged by a public utility, or to the accuracy or reliability of information submitted to the [MPSC] by a public utility or other person in support of or in opposition to a proposed or approved rate, regardless of the legal theory upon which any such challenge is made .
      Id.
      First, the amended language clarifies (rather than expands) the scope of the MPSC's exclusive jurisdiction; second, the amendment does not alter Section 77-3-5(b), which pertains to entities like ACE; and lastly, the amendment does not operate retroactively-therefore, its prospective effects have no bearing upon this case. See id.

      ACE further points out that Mississippi Code Section 77-5-203(n) defines "rate" even more broadly:
      "Rate" means and includes every compensation, charge, deposit, contribution, fee, fare, toll, rental, cost and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged, collected, avoided, or owed by a corporation for or relating to electric energy offered or provided by the corporation to the public or received by the corporation, and any rules, regulations, practices or contracts relating to any such compensation, charge, deposit, contribution, fee, fare, toll, rental, cost, or classification, including, but not limited to, any rules, regulations, practices or contracts relating to the disconnection of service to members or nonmember customers who have failed to pay for electric energy provided by the corporation.
      Miss. Code Ann. § 77-5-203(n) (Rev. 2018).

      See also Miss Code. Ann. § 77-5-231(h), (k) (Rev. 2018) (describing ACE's specific powers as to the making and entering contracts, the terms and conditions related thereto, and the right to collect fees and other charges for services rendered).

      As to the retroactivity of an amended bylaw, our law lacks authority on point; therefore, we seek guidance from our sister states. To that end, we find helpful Kelley v. Tracy Fire Department Relief Association , 390 N.W.2d 394, 398 (Minn. Ct. App. 1986). In Kelley , the Minnesota Court of Appeals reiterated the rule that bylaws do not have exclusively prospective effect unless expressly limited to such-rather, an amended bylaw may apply retroactively "so long as it does not materially impair existing contractual rights." Id. at 398 (emphasis added).
      Here, we have held that The Door Shop had a contractual obligation to pay for all the electricity it used since becoming a member of ACE in 2004. Moreover, ACE's bylaws must apply to all its members, regardless of a member's tenure. See Miss. Code Ann. § 77-5-225. We find Kelley 's rule persuasive, because ACE's 2009 bylaw amendment did not "materially impair" any existing contractual rights; instead, the amendment was procedural in nature, not substantive. Therefore, we find no genuine dispute as to this issue and reject The Door Shop's argument.

      Although the issue has not been raised by The Door Shop in its briefs on appeal, we note that Mississippi Code Section 15-1-5 (Rev. 2012) provides that our general three-year statute of limitations "shall not be changed in any way whatsoever by contract between parties." As such, it would appear that Section 15-1-5 calls into question ACE's underbilling bylaw, which does not limit its right to assert a claim for relief. But a statute of limitations is an affirmative defense that must be pleaded and, if not raised, is waived. See M.R.C.P. 8(c) ; see also Kimball Glassco Residential Ctr., Inc. v. Shanks , 64 So.3d 941, 945 (Miss. 2011). Unfortunately, The Door Shop totally failed to raise Section 15-1-5 as an affirmative defense; therefore, it was waived. We decline to address it here, as the issue is not properly before us. See id.