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Jourdan River Estates, LLC v. Favre

Supreme Court of Mississippi

September 26, 2019


          DATE OF JUDGMENT: 09/22/2017







         ¶1. This appeal is the fourth arising from this dispute.[1] As we noted in Favre II, "[t]he instant case follows a complex factual and procedural history . . . ." Favre II, 148 So.3d at 363 (¶ 2). From 2007 to 2014, the parties employed significant resources in litigating "the rights of the various parties as to Nicola Road, a county road that allows the various property owners access to Highway 603." Id. Jourdan River Estates (JRE) prevailed in that litigation, securing much-needed access to Nicola Road for the purpose of developing its 269-acre tract of land and constructing hundreds of condominiums. Id. at 363 (¶ 1).

         ¶2. This litigation took its toll, and "the seven year delay has been costly for" JRE and Jourdan River Resort and Yacht Club, LLC (Yacht Club).[2] On December 19, 2011, JRE and Yacht Club sued Scott Favre, Cindy Favre, and Jefferson Parker-neighboring property owners who opposed development-for damages in Hancock County Circuit Court, asserting fifteen different causes of action. All of the causes of action are based on the allegations that the defendants delayed development of the condominium complex.

         ¶3. After years of protracted proceedings, the circuit court granted partial summary judgment in favor of the defendants.[3] In its order, the circuit court divided its analysis between JRE and Yacht Club, explaining the reasons summary judgment was appropriate against each plaintiff. Simply put, the circuit court disposed of each cause of action by (1) applying the statute of limitations bar, (2) finding that the plaintiffs lacked standing to bring the claim, or (3) utilizing the Noerr-Pennington[4] doctrine, which immunizes defendants from tort-based liability for having petitioned the government. The trial court denied the defendants' request to apply judicial estoppel to all of the remaining claims. JRE and Yacht Club appealed the order granting summary judgment, and the defendants cross-appealed regarding the court's application of judicial estoppel.

         ¶4. During pendency of the appeal, this Court sua sponte requested that the parties address the issue that JRE-a foreign limited liability company-was not in good standing with the Mississippi Secretary of State prior to filing its complaint. The Court finds that the parties have waived the issue.

         ¶5. We affirm the circuit court's grant of partial summary judgment in favor of the defendants, but we reverse and remand the court's application of judicial estoppel.


         ¶6. JRE, a Louisiana limited liability company, was the owner of the 269-acre tract (the Yacht Club property) near the community of Kiln, Mississippi, located in Hancock County. Favre I, 52 So.3d at 464 (¶ 1). Jourdan River Resort and Yacht Club, LLC, a Louisiana limited liability company, is the current owner of the Yacht Club property. Cindy Favre owns the tract of land immediately to the west of the Yacht Club property. She and her husband, Scott Favre, reside on Cindy Favre's property. Jefferson Parker owns and resides on the property immediately to the east of the Yacht Club property.

         ¶7. In early 2007, JRE filed an application with the Hancock County Planning and Zoning Commission to rezone the Yacht Club property; JRE planned to develop a 472-unit condominium complex and yacht basin. The application was rejected after review by the Hancock County Board of Supervisors, and JRE resubmitted its plans without a zoning request in early 2008. The second proposal was approved by the Hancock County Board of Supervisors, and a conditional use permit was issued. Objecting neighbors filed an appeal in the Hancock County Circuit Court. That court found their objections to be without merit. The Court of Appeals affirmed the circuit court's judgment in favor of JRE. Favre I, 52 So.3d at 467 (¶ 16).

         ¶8. During that same time period, a dispute arose between the parties over a 340-foot portion of Nicola Road near the north end of that public road. Favre II, 148 So.3d at 363 (¶ 1). The plaintiffs needed full access to Nicola Road to reach their 947-foot private easement, ultimately so that the plaintiffs could build their condominium complex. Id. at 363 (¶¶ 1-2). As evidenced by all of the litigation, the defendants did not consider the plaintiffs to be entitled to full access to Nicola Road. Id.

         ¶9. Nicola Road is a public road, accessed from Highway 603. Nicola Road leads from Highway 603 to the Yacht Club property, "also known as the Mentel parcel, passing by and providing access to three parcels." Id. at 363 (¶ 2). The three parcels are the properties owned by the defendants, which "were conveyed from Cinque Bambini, an ancestor in title, sometime in 1986." Id. A map of all of the properties can be found within paragraph two of Favre II. Id.

         ¶10. The plaintiffs' access to the right-of-way was "complicated by the existence (or lack thereof) of two gates on Nicola Road: the Darwood Point gate . . . and the Heitzmann gate." Id. at 364-65 (¶ 4). The plaintiffs' access to Nicola Road also was hindered by actions of the defendants.

         ¶11. On September 22, 2008, JRE filed suit in Hancock County Chancery Court for declaratory judgment regarding which portions of Nicola Road are public, as well as identification of easement rights of property owners adjoining the road. Id. at 364 (¶ 2).[6] JRE also requested an injunction against the other landowners to require the removal of all gates leading up to the Yacht Club property. Id. JRE's complaint also alleged defamation, tortious interference with business relationships, blocking a public road, and malicious conduct.

         ¶12. After a preliminary hearing, the chancery court ordered that the suit be transferred to circuit court. To allow the action to remain in chancery court, JRE dismissed all tort and damages claims and filed an amended complaint on October 3, 2008, including only the declaratory judgment and injunction portions of the suit. The Hancock County Chancery Court retained the matter.

         ¶13. The chancery court found in favor of JRE in December 2012, adjudicating that the 340-foot portion of Nicola Road is a public right of way that leads to JRE's private 947-foot easement. Id. at 365 (¶ 9). The court also found that Scott Favre had built the Darwood Point gate in 2007 and that both it and the Heitzmann gate had to be removed; the injunction prohibited the parties from erecting any gates in the future. Id. at 367 (¶ 13).

         ¶14. The chancery court also enjoined the Favres and Parker from harassing or intimidating JRE or its invitees and licensees. Id. The injunction mainly was directed toward Scott Favre. Id. at 367 (¶ 14). According to JRE, Scott Favre would accost anyone who attempted to access the Yacht Club property via Nicola Road, "threatening to impound their vehicles by shutting and locking the gate." Id. "Scott Favre would verbally harass anyone who entered, repeatedly used his rifle to shoot JRE's fence, construction permit, power pole, and a security camera, which he specifically is recorded as saying that 'I shot [the security camera] twenty times with a [.]223 . . . .'" Id. The chancery court also applied the injunction against Cindy Favre and Parker because they "indirectly supported [Scott Favre's] actions as they generally knew of them." Id.

         ¶15. The Favres and Parker appealed the chancery court's judgment, and on October 9, 2014, this Court affirmed the judgment in Favre II. Id. at 376-77 (¶ 54).

         ¶16. While these lawsuits were pending, JRE filed for bankruptcy on September 9, 2009. In the bankruptcy schedules, JRE listed various suits and potential claims under the pending litigation section, but it omitted a potential damages lawsuit as an asset. Emerging from bankruptcy in February 2011, JRE was able to retain its ownership of the Yacht Club property. JRE transferred the property to the newly created entity-Yacht Club-shortly after the close of the bankruptcy case in February 2011. The same owners and operators controlled both JRE and Yacht Club; an owner testified that the decision to transfer to Yacht Club may have concerned avoiding the stigma of bankruptcy.

         ¶17. After the bankruptcy proceedings were over, JRE and Yacht Club filed a lawsuit in circuit court against the Favres and Parker in December 2011, seeking millions of dollars in damages. The complaint alleged fifteen causes of action,

including slander of title; slander and/or defamation; trespass; nuisance; tortious interference with use of property; tortious interference with contractual relationships; harassment and intimidation of plaintiffs' agents and intentional infliction of emotional distress upon plaintiffs' agents; assault upon plaintiffs' agents; willful destruction of plaintiffs' property; negligence; gross, willful, and wanton negligence; malicious prosecution; unjust enrichment (inasmuch as defendants' actions are believed to be motivated, in part, by a desire to increase the value of their own property by using improper means to limit the use of plaintiffs' property); false imprisonment; and any other applicable theory of law giving rise to a cause of action.

Favre III, 212 So.3d at 802 (¶ 1).

         ¶18. In response, the Favres and Parker filed a motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6). Id. at 802 (¶ 2). The Circuit Court of Hancock County granted the motion in part and denied it in part, denying or dismissing almost all of the plaintiffs' claims. Id. JRE and Yacht Club appealed that order, arguing the defendants' "Rule 12(b)(6) motion should have been converted into a motion for summary judgment, as provided in Rule 56 of the Mississippi Rules of Civil Procedure . . . ." Id. at 802 (¶ 3).

         ¶19. In Favre III, this Court agreed with JRE and Yacht Club, issuing a very narrow holding:

[I]n considering the Rule 12(b)(6) motion, the circuit court did a skilled job in addressing and applying Mississippi law to each individual cause of action plead[] by [the p]laintiffs in this case. However, as demonstrated by the Rule 12(b)(6) motion hearing held in this matter, numerous facts were presented to the circuit court that existed outside the pleadings. Accordingly, we find that Defendants' Rule 12(b)(6) motion should have been converted into a motion for summary judgment, as provided by Rule 56.
. . . We reverse the circuit court's grant of Defendants' Rule 12(b)(6) motion and remand the matter for further proceedings consistent with this opinion.

Id. at 803 (¶¶ 6-7).

         ¶20. After remand and further discovery, the defendants moved for summary judgment, raising several of the same arguments they had raised in their Rule 12(b)(6) motion. The circuit court granted partial summary judgment in favor of the defendants on almost all of the claims.

         ¶21. In the circuit court's Order Regarding Defendants' Motions for Summary Judgment the court noted that "the [c]omplaint does not specifically state which causes are asserted by each [p]laintiff." Since JRE and Yacht Club are two separate entities, each having owned the Yacht Club property during different time periods, the court divided its analysis between the facts and incidents alleged during JRE's ownership of the property (January 2005-February 2011) and Yacht Club's ownership of the property (February 2011-December 19, 2011, the date of the filing of the complaint).[7]

         ¶22. For its analysis regarding JRE, the circuit court determined either that the statute of limitations had run on all claims by JRE against Cindy Favre and Jefferson Parker or that JRE lacked standing to bring the claim alleged. Some claims by JRE against Scott Favre also were dismissed. But the court did not dismiss all claims against Scott Favre, finding that the claims of trespass, nuisance, unjust enrichment, negligence, and gross, willful, and wanton negligence against him were not barred by the statute of limitations.

         ¶23. The defendants had argued in their motion for summary judgment that all the claims by JRE should have been dismissed due to judicial estoppel-JRE had not listed the potential damages lawsuit in its bankruptcy schedules; therefore, it should have been precluded from bringing the suit. The court expressly denied that portion of the defendants' summary judgment motion, finding that "the current suit was not included, as it had yet to be filed[;] [t]he [p]laintiffs['] listing of current suits in one section, but failure to repeat in another, is mere inadvertence."

         ¶24. For its analysis regarding Yacht Club, the circuit court determined that all claims by Yacht Club against all defendants were either barred by the Noerr-Pennington doctrine or lacked viability.

         ¶25. In sum, the circuit court dismissed all claims by Yacht Club, dismissed or denied all claims by JRE against Cindy Favre and Jefferson Parker, and dismissed most claims by JRE against Scott Favre, leaving only claims of trespass, nuisance, unjust enrichment, negligence, and gross, willful, and wanton negligence against Scott Favre. The plaintiffs argue that although this is nominally a partial summary judgment, the ruling ends the litigation and is effectively a final judgment because Scott Favre is judgment proof.

         ¶26. The circuit court certified the judgment as final under Mississippi Rule of Civil Procedure 54(b). On appeal, JRE and Yacht Club raise five issues addressing the trial court's findings:

[1]: If plaintiffs prove that defendants took [actions that delayed development of the Yacht Club property] with resulting damage to plaintiffs, do plaintiffs have the right to recover damages under any legal theory[?]
[2]: Have plaintiffs presented sufficient evidence . . . to survive defendants' motions for summary judgment?
[3]: Is there sufficient evidence of agreement and coordination among the three defendants to support a finding that each defendant is vicariously liable for wrongful actions of other defendants under the laws of conspiracy or agency?
[4]: Are plaintiffs' claims barred by the statute of limitations?
[5]: Are plaintiffs' claims barred or limited by state law privilege or under the Noerr-Pennington privilege?

         ¶27. Because the circuit court did not rule on the sufficiency of the evidence as it pertained to each claim when it granted summary judgment, this Court likewise does not address issues one and two. As the issues involve the statute of limitations, standing to bring a claim, and the Noerr-Pennington doctrine, all arguments relate to one central issue raised by the plaintiffs: did the circuit court err by granting summary judgment?

         ¶28. The defendants cross-appealed on one issue: whether judicial estoppel bars the remaining claims by JRE against the defendants because JRE omitted ...

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