Jourdan River Estates, LLC v. Favre

• Citation: 278 So.3d 1135
• Decision Date: 26 September 2019
• Docket Number: NO. 2017-CA-01386-SCT,2017-CA-01386-SCT
• Parties: JOURDAN RIVER ESTATES, LLC and Jourdan River Resort and Yacht Club, LLC v. Scott M. FAVRE, Cindy Favre and Jefferson Parker
• Court: United States State Supreme Court of Mississippi

278 So.3d 1135

JOURDAN RIVER ESTATES, LLC and Jourdan River Resort and Yacht Club, LLC

v.Scott M. FAVRE, Cindy Favre and Jefferson Parker

NO. 2017-CA-01386-SCT

Supreme Court of Mississippi.

September 26, 2019

ATTORNEY FOR APPELLANTS: GEORGE W. HEALY, IV, Gulfport

ATTORNEY FOR APPELLEES: ROBERT B. WIYGUL, Ocean Springs

BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶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 - Pennington⁴ 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.

FACTS AND PROCEDURAL HISTORY⁵

¶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,...