JOURDAN RIVER ESTATES, LLC AND JOURDAN RIVER RESORT AND YACHT CLUB, LLC
SCOTT M. FAVRE, CINDY FAVRE AND JEFFERSON PARKER
OF JUDGMENT: 09/22/2017
HANCOCK COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS,
JR. TRIAL JUDGE
COURT ATTORNEYS: TINA LORRAINE NICHOLSON GEORGE W. HEALY, IV
ROBERT B. WIYGUL CLEMENT S. BENVENUTTI.
ATTORNEY FOR APPELLANTS: GEORGE W. HEALY, IV
ATTORNEY FOR APPELLEES: ROBERT B. WIYGUL
KITCHENS AND KING, P.JJ., AND COLEMAN, J.
KITCHENS, PRESIDING JUSTICE
This appeal is the fourth arising from this
dispute. 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
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). 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.
After years of protracted proceedings, the circuit court
granted partial summary judgment in favor of the
defendants. 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 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.
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
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.
AND PROCEDURAL HISTORY
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.
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).
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.
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.
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.
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). 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.
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.
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).
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.
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 (¶
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.
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).
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
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
. . . 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).
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.
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
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.
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
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.
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.
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
: 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[?]
: Have plaintiffs presented sufficient evidence . . . to
survive defendants' motions for summary judgment?
: 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
: Are plaintiffs' claims barred by the statute of
: Are plaintiffs' claims barred or limited by state
law privilege or under the Noerr-Pennington
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?
The defendants cross-appealed on one issue: whether judicial
estoppel bars the remaining claims by JRE against the
defendants because JRE omitted ...