Jourdan River Estates, LLC v. Scott M. Favre

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-01386-SCT
JOURDAN RIVER ESTATES, LLC AND
JOURDAN RIVER RESORT AND YACHT CLUB,
LLC
v.
SCOTT M. FAVRE, CINDY FAVRE AND
JEFFERSON PARKER
DATE OF JUDGMENT: 09/22/2017
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS, JR.
TRIAL COURT ATTORNEYS: TINA LORRAINE NICHOLSON
GEORGE W. HEALY, IV
ROBERT B. WIYGUL
CLEMENT S. BENVENUTTI
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: GEORGE W. HEALY, IV
ATTORNEY FOR APPELLEES: ROBERT B. WIYGUL
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: ON DIRECT APPEAL: AFFIRMED. ON
CROSS-APPEAL: DISMISSED AND
REMANDED - 09/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
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
1
Favre v. Hancock Cty. Bd. of Supervisors, 52 So. 3d 463 (Miss. Ct. App. 2011)
(Favre I); Favre v. Jourdan River Estates, 148 So. 3d 361 (Miss. 2014) (Favre II);
Jourdan River Estates, LLC v. Favre, 212 So. 3d 800 (Miss. 2015) (Favre III).
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
2
JRE filed for bankruptcy in 2009. After coming out of bankruptcy, JRE transferred
its property to Yacht Club, a new LLC owned and operated by the owners of JRE. The two
LLCs collectively sued the defendants for acts and omissions that allegedly occurred during
their respective ownerships of the property.
3
The circuit court granted a partial summary judgment that effectively disposed of
almost all of the plaintiffs’ claims. The circuit court certified the judgment as final, allowing
the plaintiffs to pursue this appeal. See Miss. R. Civ. P. 54(b).
2
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,
4
See n.13.
5
The underlying facts are not in substantial dispute, and the Court summarizes the
relevant facts based on the circuit court’s findings of fact in its order granting summary
judgment and the previous decisions in the Favre line of cases to simplify a complex history.
3
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,
4
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.
6
JRE, Hancock County, and the defendants disputed, inter alia, which portions of
Nicola Road were dedicated to the public, the existence and portions of any private right of
way, the boundaries of those public and private portions, and what rights to those portions
existed amongst the parties and their ancestors in title. Favre II, 148 So. 3d. at 364-67 (¶¶
2-12).
5
¶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
6
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).
7
¶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
7
The circuit court considered that JRE acquired the property in January 2005 and that
Yacht Club acquired the property following JRE’s bankruptcy in February 2011.
8
¶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
9
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?
10
¶28. The defendants cross-appealed on one issue: whether judicial estoppel bars the
remaining claims by JRE against the defendants because JRE omitted this damages suit in
its 2009 bankruptcy filings.
¶29. While the appeal was in progress, this Court recognized that the Mississippi Secretary
of State had revoked or administratively dissolved JRE’s status as a foreign LLC in good
standing on December 5, 2011, and that the LLC was not in good standing when it filed its
complaint. On December 5, 2018, this Court ordered the parties to submit supplemental
briefing regarding whether the Court may take judicial notice of its registration status and the
effect of the dissolution or revocation on JRE’s right to pursue its claims.
STANDARDS OF REVIEW
¶30. “This Court reviews grants of summary judgment [de novo].” Wallace v. Town of
Raleigh, 815 So. 2d 1203, 1208 (¶ 19) (Miss. 2002) (citing Owen v. Pringle, 621 So. 2d 668,
670 (Miss. 1993)). Summary judgment is required “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Miss. R. Civ. P. 56(c). The party resisting summary judgment may not rely
solely on allegations in the pleadings but “must set forth specific facts showing that there is
a genuine issue for trial.” Miss. R. Civ. P. 56(e).
¶31. We review questions of law de novo. Cotton v. Paschall, 782 So. 2d 1215, 1217 (¶
10) (Miss. 2001).
11
¶32. Standing, as a question of law, is reviewed de novo. Rosenfelt v. Miss. Dev. Auth.,
262 So. 3d 511, 515 (¶ 11) (Miss. 2018).
¶33. “[W]e review the circuit court’s application of judicial estoppel using the abuse of
discretion standard.” Adams v. Graceland Care Ctr. of Oxford, LLC, 208 So. 3d 575, 580
(¶¶ 12-13) (Miss. 2017) (“[T]he appropriate analysis requires an appellate court to use the
abuse of discretion standard to review the trial court’s determination that judicial estoppel
is or is not applicable. Then, an appellate court would use the [de novo] standard to determine
whether summary judgment was or was not appropriate.”).
ANALYSIS
I. May the Court take judicial notice that on December 5, 2011, JRE
was administratively dissolved and/or had its foreign LLC
registration revoked under Mississippi law?
¶34. Because the issue concerns whether JRE could maintain its suit, we address it first.
¶35. The Mississippi Rules of Evidence authorize a court “judicially [to] notice a fact that
is not subject to reasonable dispute” when the fact “(1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Miss. R. Evid. 201. Further, the court is
empowered to take “notice on its own” and “at any stage of the proceeding.” Id.
¶36. “This Court, of course, may take judicial notice of adjudicative facts at any stage of
the proceedings, whether requested to do so by a party or not.” Adm’rs of the Tulane Educ.
Fund v. Cooley, 462 So. 2d 696, 699 (Miss. 1984) (citing Moore v. Grillis, 205 Miss. 865,
12
39 So. 2d 505 (1949)). See also McGill v. City of Laurel, 252 Miss. 740, 173 So. 2d 892, 903
(1965) (“We take judicial knowledge of that which is commonly known.”)
¶37. The Court is authorized to take judicial notice of any information “helpful and
appropriate, including official public documents, records and publications.” Enroth v. Mem’l
Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990). We have held that “there can be no
doubt . . . that judicial notice can be taken of documents in the office of the Secretary of State
as one of [the] departments from which judicial knowledge may be acquired.”
Miss.-Gulfport Compress & Warehouses v. Pub. Serv. Comm’n, 189 Miss. 166, 196 So.
793, 795 (1940) (citing Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407 (1932); Witherspoon
v. State, 138 Miss. 310, 103 So. 134 (1925)).
¶38. Accordingly, we find that the Court may judicially notice the following relevant facts:
• JRE is a Louisiana limited liability company;
• JRE previously registered with the Mississippi Secretary of State as a
foreign limited liability company;
• The Mississippi Secretary of State administratively revoked JRE’s
status as a foreign limited liability in good standing on December 5,
2011;
• JRE and Yacht Club filed the complaint in this case on December 19,
2011;
• JRE was reinstated as a foreign limited liability company in good
standing by the Mississippi Secretary of State on December 7, 2018.
II. Does the fact that on December 5, 2011, JRE was administratively
dissolved and/or had its foreign LLC registration revoked under
Mississippi law affect its standing to pursue its claims?
13
¶39. Because the Mississippi Secretary of State administratively revoked JRE’s status as
foreign limited liability before JRE filed its complaint, we ordered JRE and the defendants
to file supplemental briefs to address the effect on JRE’s standing to maintain this action.8
¶40. “Standing is a jurisdictional issue which may be raised by any party or the Court at any
time . . . .” Kirk v. Pope, 973 So. 2d 981, 989 (Miss. 2007) (¶ 58) (internal quotation marks
omitted) (quoting City of Madison v. Bryan, 763 So. 2d 162, 166 (Miss. 2000)). To satisfy
standing, there must be a valid, present, and complete cause of action in existence along with
a right to relief upon institution of the suit. See, e.g., Hotboxxx, LLC v. City of Gulfport, 154
So. 3d 21, 28 (¶ 24) (Miss. 2015) (“[S]tanding must exist when litigation is commenced and
must continue through all subsequent stages of litigation, or the case will become moot.”
(internal quotation marks omitted) (quoting In re City of Biloxi, 113 So. 3d 565, 572 (Miss.
2013))).
¶41. In their briefs, both parties scrutinize the standing of a dissolved or revoked LLC to
pursue claims upon its reinstatement; however, both parties affirm this eligibility is not an
issue of standing. Instead, both parties aver that the right to bring suit in the present case
involves capacity.9 Standing is different than capacity, which concerns the formal ability of
8
The Mississippi Foreign Limited Liability Company Act requires a foreign limited
liability company “transacting business in this state” to register before it may “maintain any
action, suit, or proceeding in any court of this state.” Miss. Code. Ann. § 79-29-1013(1)
(Rev. 2014). A foreign limited liability company with an administratively revoked
registration may not maintain a suit until registration is reinstated. Miss. Code Ann. §
79-29-1023(8) (Rev. 2014).
9
According to JRE and Yacht Club, “by obtaining reinstatement, [JRE] has simply
sought to cure an arguable procedural deficiency which has no bearing on the merits of the
substantive claim.” The defendants “submit that the constraint on Jourdan River Estates[’]
14
a party to sue or to be sued. See Burley v. Douglas, 26 So. 3d 1013, 1025-26 (¶ 45) (Miss.
2009) (Kitchens, J., concurring) (“Basically put, the capacity to sue is the right to come into
court. It is distinguishable from standing to sue which is a right to relief, which goes to the
existence of the cause of action.” (internal quotation marks omitted) (quoting 67A C.J.S.
Parties § 11 (2008))); S. Trucking Serv., Inc. v. Miss. Sand & Gravel, Inc., 483 So. 2d 321,
323 (Miss. 1986) (“It is the rule everywhere that ‘in every action there must be a real
plaintiff, who is a person in law and who is possessed of a legal entity and capacity to sue.’”
(quoting Collins v. Gen. Elec. Co., 239 Miss. 825, 833, 123 So. 2d 609, 613 (1960))).10
¶42. The Court finds that JRE’s lack of capacity has been cured. JRE reregistered as a
foreign limited liability company in good standing with the Mississippi Secretary of State.
All parties accommodated reregistration pending this appeal, and all parties consented to
supplement the record regarding the LLC’s continued existence. See Funderburg, 6 So. 3d
at 442 (“In the present case, the Appellants were given such an opportunity to substitute the
real party in interest.”).
filing suit is more properly considered an issue of capacity to sue, or statutory standing, than
constitutional standing.”
10
Mississippi Rule of Civil Procedure 17(a) sets minimal requirements for capacity to
sue and to be sued: litigation between real parties in interest. Miss. R. Civ. P. 17(a) (“An
executor, administrator, guardian, bailee, trustee, a party with whom or in whose name a
contract has been made for the benefit of another, or a party authorized by statute may sue
in his representative capacity.”). When the party is not a real party in interest, or otherwise
lacks capacity to bring suit, an action may not be maintained. See Funderburg v. Pontotoc
Elec. Power Ass’n, 6 So. 3d 439, 442 (¶ 11) (Miss. Ct. App. 2009) (“Rule 17(a) of the
Mississippi Rules of Civil Procedure requires that a claim be filed on behalf of the real
parties in interest. [Plainitiff] could not be such a real party in interest because it had been
dissolved more than eight years before the alleged incident took place.”).
15
¶43. Accordingly, we find this issue on appeal has been waived, expressly or impliedly, by
the parties. The Court may decline to address capacity under Mississippi Rule of Civil
Procedure 17(a) when the parties have ratified the existence of the real party in interest to the
suit and there is no present defect regarding capacity.11 See Miss. Valley Silica Co., Inc. v.
Barnett, 227 So. 3d 1102, 1110 (¶ 14) (Miss. Ct. App. 2016) (“Valley’s objection is not a
jurisdictional issue of ‘standing’ but a real-party-in-interest objection, which may be waived
if not timely asserted.” (citing M.R.C.P. 17(a))), abrogated on other grounds by Portis v.
State, 245 So. 3d 457 (Miss. 2018); Doe v. Holmes Cty. Sch. Dist., 246 So. 3d 920, 924-25
(¶ 17) (Miss. Ct. App. 2018) (“‘[U]nlike standing, the lack of which cannot be waived or
cured, capacity to sue can be cured’ on remand and is not a jurisdictional issue . . . .” (quoting
Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343, 347 (5th Cir. 2011))).
¶44. Therefore, we hold that this question is not an issue of standing but of capacity, and
both parties have waived the issue on appeal.
III. On direct appeal, did the circuit err by granting partial summary
judgment in favor of the defendants?
11
Under the rule,
No action shall be dismissed on the ground that it is not prosecuted in the name
of the real party in interest until a reasonable time has been allowed after
objection for ratification of commencement of the action by, or joinder or
substitution of, the real party in interest; and such ratification, joinder or
substitution shall have the same effect as if the action had been commenced in
the name of the real party in interest.
Miss. R. Civ. P. 17(a).
16
¶45. The circuit court divided its analysis between the claims pertinent to JRE and those
regarding Yacht Club. We do the same.
A. JRE
1. Claims barred for lack of standing
¶46. JRE brought claims against the defendants for harassment and intimidation of its
agents and intentional infliction of emotional distress on its agents; assault on its agents; and
false imprisonment. As the trial court noted, these causes of action are against “the person
of JRE’s employees . . . [and not] against the [entity] of JRE.” As a result, the “real part[ies]
in interest” for these claims are JRE’s employees, not JRE. Kirk, 973 So. 2d at 988 (¶ 21)
(Miss. 2007). JRE lacks standing to bring these claims. Id. The circuit court did not err by
granting summary judgment on these grounds.
¶47. Further, the plaintiffs did not assign as error or make any argument respecting this
portion of the circuit court’s order. Therefore, argument against the dismissal of these claims
is waived. See, e.g., Collins v. City of Newton, 240 So. 3d 1211, 1221 (¶ 34) (Miss. 2018)
(“Because the issue was not argued in . . . appellate briefing, we consider it abandoned and
waived.” (citing Sumrall v. State, 758 So. 2d 1091, 1094 (Miss. Ct. App. 2000))); Petty v.
Baptist Mem’l Health Care Corp., 190 So. 3d 17, 20 (¶ 7) (Miss. Ct. App. 2015) (plaintiff
“failed, on appeal, to raise any arguments regarding the circuit court’s grant of summary
judgment on her claims of tortious interference and defamation, [and] she has now waived
those issues.”).
2. Claims barred by the statute of limitations
17
¶48. Except for five claims against Scott Favre, the circuit court applied against all
defendants the statute of limitations bar with respect to JRE’s remaining claims. The statute
of limitations for libel, slander, and slander of title is one year. Miss Code Ann. § 15-1-35
(Rev. 2014). The statute of limitations for enumerated intentional torts is one year. Id. The
catch-all statute of limitations for tort claims is three years. Miss. Code Ann. 15-1-49 (Rev.
2014). The circuit court was correct that all remaining allegations were committed outside
the relevant limitations period. JRE makes several unavailing arguments in its attempt to
circumvent the statute of limitations.
¶49. First, JRE points to two events that occurred within one year of the filing of the
complaint:
(1) July 2011: The Board of Supervisors meeting at which an attorney
speaking on behalf of Cindy Favre and Jefferson Parker persuaded the Board
to decline to extend the JRE/[Yacht Club conditional use permit] by claiming,
in pertinent part, that [Yacht Club] was not entitled to an extension because
JRE and [Yacht Club] had failed to make sufficient progress in developing the
property . . . .
(2) August 2011: Cindy Favre confronted a JRE contractor attempting to
access the [Yacht Club] property via Nicola Road and deterred the contractor
from performing services on the JRE track by claiming, without any
objectively reasonable basis, that JRE invitees and licensees would be
trespassing, and subject to prosecution for criminal trespass, if they attempted
to access the [Yacht Club] tract via Nicola Road.
JRE’s reliance on these two events is misplaced. The circuit court did not apply the statute
of limitations to any claims arising from these events. As the circuit court noted, Yacht Club
took possession of the property in February 2011. Claims based on allegations that occurred
after February 2011 are pertinent to Yacht Club, not JRE. The circuit court correctly barred
18
Yacht Club’s claims on other grounds, namely, the Noerr-Pennington doctrine, not the
statute of limitations.
¶50. Second, JRE attempts to tie all the events together and to argue that the statute of
limitations was tolled because the defendants engaged in a civil conspiracy to obstruct
development of the property, specifically, to commit conduct related to slander, defamation,
and slander of title. Civil conspiracy is not a specifically enumerated claim in the plaintiffs’
complaint. But the circuit court analyzed the argument because of the plaintiffs’ general
claim of “[a]ny other applicable theory of law giving rise to a cause of action.”
¶51. The circuit court cites a case decided by the Court of Appeals for the proposition that
civil conspiracy is an intentional tort that carries a one-year statute of limitations. McGuffie
v. Herrington, 966 So. 2d 1274, 1278 (¶ 8) (Miss. Ct. App. 2007) (citing Gasparrini v.
Bredemeier, 802 So. 2d 1062 (Miss. Ct. App. 2001)). The trial court noted that “[t]he facts
relied [upon] for the alleged civil conspiracy are recitations of the facts alleged in the 2008
complaint.” And as the claim is “[s]imilar to the other enumerated intentional torts, any
claim[s] by [p]laintiffs for civil conspiracy are barred by the one-year statute of limitations.”
¶52. This Court previously has said that the statute of limitations for a claim of civil
conspiracy carries a three-year statute of limitation. Carter v. Citigroup, Inc., 938 So. 2d
809, 817 (¶ 39) (Miss. 2006) (citing Am. Bankers’ Ins. Co. v. Wells, 819 So. 2d 1196, 1200
(Miss. 2001)). See also Rankin v. Am. Gen. Fin., Inc., 912 So. 2d 725, 726 (¶ 2) (Miss.
2005) (“Unless it is tolled, the statute of limitations on all of the claims [including civil
19
conspiracy] asserted by the Plaintiffs is three years or less and had therefore run by the time
Plaintiffs filed suit.” (citing Miss. Code Ann. § 15–1–49 (Rev. 2003))).
¶53. Upon review, JRE contended a conspiracy existed as early as 2007, more than three
years before the filing of the complaint in this case. Specifically, JRE claimed that the
defendants “have systematically conspired during a time from September 2007 to the present
[filing of complaint, December 19, 2011,] to destroy plaintiffs’ business and deprive
plaintiffs of the legitimate use of their property.” The record reflects—and JRE
asserted—that the defendants were cognizant of such collusion. Yet, despite the defendants’
allegedly maintaining a conspiracy, the plaintiffs failed to pursue this action within the
prescribed statute of limitations.
¶54. Further, JRE instituted an action seeking recovery from the defendants’
collaborations; but JRE dropped those claims when it filed its amended complaint in October
2008. JRE alleged in its September 2008 complaint that the defendants “constructed,
authorized the construction of, and/or colluded in the construction of the gate across Nicola
Road.” The claims seeking damages from that incident were dismissed without prejudice.
But JRE and its successor did not return to court to seek damages for this claimed conspiracy
until December 2011. See Koestler v. Miss. Baptist Health Sys., Inc., 45 So. 3d 280, 283 (¶
11) (Miss. 2010) (“[T]he statute of limitations ran long before the second suit was filed.”).
¶55. JRE’s complaint cites specific activities of the defendants—such as construction of
the gate—as “representative” of a “systematic, joint, ongoing conspiracy to spread the false
impression that plaintiffs do not have the legal right to access their property.” But the trial
20
court addressed the viability of claims stemming from those incidents. And while there may
be instances when this Court can recognize an ongoing conspiracy, JRE’s conspiracy claim
here fell outside the statute of limitations. The later incidents JRE cites are not sufficient to
extend this conspiracy claim indefinitely.12
¶56. Moreover, the circuit court went further and addressed the civil conspiracy claim on
the merits, correctly finding that “[e]ven if the slander of title claims were not barred by the
statute of limitations, the claims would still fail.” The plaintiffs alleged that “Jefferson
Parker, Cindy Favre[,] and Scott Favre conspired to commit slander of title by: (1) stating
that JRE’s easement was not sufficient to serve as a[n] access [point] for the condominium
development, (2) placing a farm gate on Nicola Road[,] . . . and (3) claiming to own Nicola
Road and/or JRE’s easement.” But, as the circuit court rightly observed, these statements and
acts were “the subject of the [c]hancery [c]ourt action, Hancock County Cause No. 08-786[,
and] [n]one of the issues in the suit [was] found to be frivolous.” “Communications
published in due course of a judicial proceeding are absolutely privileged and will not sustain
an action for slander of title.” Mize v. Westbrook Constr. Co. of Oxford, LLC, 146 So. 3d
344, 349 (¶ 13) (Miss. 2014) (citing Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112,
117 (Miss. 1987)). “All citizens have the constitutional right to petition our courts to
adjudicate honest disputes.” Id. at 350 (¶ 14). This Court affirms the circuit court’s holding
that “[t]he events surrounding [the chancery court] suit may not be the basis for a slander of
12
JRE points to acts committed after February 2011; but those claims are pertinent to
Yacht Club, not JRE. JRE also alleged that the defendants caused the placement of a large
pile of rocks over JRE’s right of way in April 2009; but the incident was not argued on
appeal.
21
title action.” Accordingly, the trial court did not err by granting partial summary judgment
regarding conspiracy.
¶57. Finally, JRE argues that the continuing tort doctrine tolled the statute of limitations
on its claims because of the “continuing presence of the gate[s] and signs” that “impeded”
development of the property.
¶58. This Court observes that
[a] continuing tort is one inflicted over a period of time; it involves a wrongful
conduct that is repeated until desisted, and each day creates a separate cause
of action. A continuing tort sufficient to toll a statute of limitations is
occasioned by continual unlawful acts, not by continual ill effects from an
original violation.
Humphries v. Pearlwood Apartments P’ship, 70 So. 3d 1133, 1135 (¶ 8) (Miss. Ct. App.
2011) (internal quotation marks omitted) (quoting Pierce v. Cook, 992 So. 2d 612, 619 (¶ 25)
(Miss. 2008)). The circuit court noted correctly that “[t]he construction and continual
existence of the Nicola Road gate does not constitute a continuing tort as explained in
Humphries.” The Darwood Point gate was built once in 2007, not multiple times; and its
continued existence after its placement does not qualify as a continuing tort. See Humphries,
70 So. 3d at 1136 (¶ 11) (“We find that the construction . . . was one event, not a repeated
action.”)
¶59. The continuing tort doctrine does not apply here, because the alleged “harm
reverberates from a single, one-time act or omission.” Stevens v. Lake, 615 So. 2d 1177,
1183 (Miss. 1993). Moreover, JRE did not seek damages stemming from construction of the
22
gate until December 2011 and had dismissed such claims in a lawsuit more than three years
before.
¶60. Accordingly, regarding JRE, we find that the circuit court did not err by granting
partial summary judgment.
B. Yacht Club
¶61. In its order, the circuit court noted that Yacht Club has owned the Yacht Club property
only since February 2011. The only allegations made by Yacht Club that are said to have
occurred after that time are as follows:
(1) Counsel for the defendants made false representations to the Hancock
County Board of Supervisors regarding Yacht Club’s access to Nicola
Road in February and July of 2011.
(2) Cindy Favre told Yacht Club’s employees that they were illegally on
the property on August 11, 2011.
(3) On September 25, 2011, defendants persuaded Hancock County
employees to place a sign on Nicola Road stating “county maintenance
ends here.”
(4) The gates on Nicola Road still existed during this time, constituting a
continuing tort.
(5) The defendants made threatening comments to Mike Felter, a
JRE/Yacht Club representative, and Yacht Club employees.
¶62. The circuit court disposed of the second, fourth, and fifth allegations using the same
continuing tort and standing analyses that it had used for JRE. We agree with the circuit court
and its disposition of these claims. For the remaining claims arising out of the first and third
allegations, the court applied the Noerr-Pennington doctrine, which we now specifically
address.
23
1. Claims barred by the Noerr-Pennington doctrine
¶63. In Harrah’s Vicksburg Corp. v. Pennebaker, 812 So. 2d 163 (Miss. 2001), this Court
expressly adopted the Noerr-Pennington doctrine. “The essence of the doctrine is that parties
who petition the government for governmental action favorable to them cannot be [held
civilly liable] . . . . [including] ‘petitions’ made to the . . . judicial branch[] of government,
[e.g.], in the form of administrative or legal proceedings . . . .” Id. at 171 (¶ 30) (quoting
Video Int’l Prod., Inc. v. Warner-Amex Cable Commc’ns, Inc., 858 F.2d 1075, 1082 (5th
Cir. 1988)).13 “The Noerr-Pennington doctrine applies in state court and to state law claims
because it is grounded on First Amendment rights to petition the government.” Id. at 171 (¶
31). This Court has not had many opportunities to examine the doctrine following our
decision in Harrah’s.14
13
Noerr refers to the Supreme Court’s opinion in E. R. R. Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127, 128, 81 S. Ct. 523, 525, 5 L. Ed. 2d 464 (1961).
The Noerr Court held that the defendants—major railroad companies—did not violate the
Sherman Anti-Trust Act in a campaign to influence government action to advantage itself
and to prejudice its competitors, long-distance trucking companies. Id. Pennington derives
from United Mine Workers of America v. Pennington, 381 U.S. 657, 659, 85 S. Ct. 1585,
1587, 14 L. Ed. 2d 626 (1965). The Court in Pennington—in the context of actions by large
mining concerns to monopolize commerce—similarly found that “[j]oint efforts to influence
public officials do not violate the antitrust laws even though intended to eliminate
competition.” Id. at 670. The Supreme Court summarized the First Amendment foundation
of its holdings in Noerr and Pennington: “[t]he same philosophy governs the approach of
citizens or groups of them to administrative agencies (which are both creatures of the
legislature, and arms of the executive) and to courts, the third branch of Government.
Certainly the right to petition extends to all departments of the Government.” Cal. Motor
Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 611-12, 30 L. Ed. 2d
642 (1972).
14
The Harrah’s Court applied the Noerr-Pennington doctrine to protect
coordinated and extensive efforts by private actors to influence a government entity to deny
a casino permit; specifically, the Court reversed and rendered a multi-million dollar jury
24
¶64. The circuit court applied the doctrine to all claims related to communications between
the defendants and either the board of supervisors or the Hancock County employees,
determining that those actions were petitions that were protected under the Noerr-
Pennington doctrine. See id. at 171 (¶ 30). We affirm the trial court’s application of the
doctrine to these claims.
¶65. In February and July of 2011, counsel for the defendants petitioned Hancock County,
requesting that the board of supervisors deny an extension of Yacht Club’s conditional use
permit. On September 25, 2011, the defendants requested that Hancock County employees
place a sign on Nicola Road stating “county maintenance ends here.” It is axiomatic that
these activities are “petitions” to the government as contemplated in Harrah’s, and the
circuit court correctly determined that these actions could not be the basis for civil liability.
¶66. On appeal, JRE and Yacht Club argue that the Noerr-Pennington doctrine creates a
privilege (e.g., the spousal communications privilege) and that the privileged
verdict that favored plaintiffs who had alleged that various Mississippi casinos “conspired
to oppose and defeat a proposal . . . seeking approval of the Mississippi Gaming
Commission (MGC) to build a casino and automobile racetrack project on the Big Black
River in Warren County.” Harrah’s, 812 So. 2d at 165 (¶ 1). This Court held that the
“Noerr–Pennington doctrine applies in state court and to state law claims because it is
grounded on First Amendment rights to petition the government. . . . and [is] equally
applicable under state law.” Id. at 171 (¶ 31). We—like other courts—found its application
outside its anti-trust origins and held that “[t]he doctrine thus bars not only the [parties’]
restraint of trade claims in this case, but also their claims for tortious interference and civil
conspiracy.” Id. at (¶ 32). See also Video, 858 F.2d at 1084 (“Although the
Noerr–Pennington doctrine initially arose in the antitrust field, other circuits have expanded
it to protect first amendment petitioning of the government from claims brought under
federal and state laws, including section 1983 and common-law tortious interference with
contractual relations.” (citing Evers v. Cty. of Custer, 745 F.2d 1196, 1204 (9th Cir. 1984);
Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614 (8th Cir. 1980))).
25
communications discussed above still can be used as evidence for their claims. For example,
JRE and Yacht Club contend that
State court decisions interpreting common law privileges, [e.g.,] the judicial
privilege [that] protects witnesses and attorneys in judicial proceedings, will
show that state courts make the same distinctions: communications can be
privileged, actions are not privileged; evidence of communications [that] are
privileged can, where appropriate, be offered to show notice or the defendant’s
motive and intent in taking actions and making non-privileged statements.
¶67. This Court interprets the Noerr-Pennington doctrine not to operate as a privilege, as
the plaintiffs interpret it, but rather as an immunity bar from suit for claims based on the
actions or communications of those petitioning the government. Id. at 171 (¶ 32) (“The
doctrine thus bars not only the [parties’] restraint of trade claims in this case, but also their
claims for tortious interference and civil conspiracy.”). We are mindful that “[t]he Supreme
Court has clearly stated that efforts to influence public officials will not subject individuals
to liability . . . .” Id. at 172 (¶ 33) (quoting Bayou Fleet, Inc. v. Alexander, 234 F.3d 852,
861-62 (5th Cir. 2000)). See also N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 914,
102 S. Ct. 3409, 3426, 73 L. Ed. 2d 1215 (1982) (Supreme Court overturned Mississippi
Supreme Court’s award of damages resulting from boycott activity when “major purpose of
the [campaign] in this case was to influence governmental action”); Bogoslavsky, 626 F.2d
at 614 (“[W]e adopt the district court’s holding that the private citizens and their lawyer were
absolutely privileged by the First Amendment to petition for the zoning amendment that
caused plaintiffs’ damages.”). Therefore, the plaintiffs’ privileges argument has no merit or
relevance.
¶68. The Harrah’s Court included a “sham” exception to the Noerr-Pennington doctrine:
26
We now outline a two-part definition of “sham” litigation. First, the lawsuit
must be objectively baseless in a sense that no reasonable litigant could
realistically expect success on the merits. . . . [S]econd[,] . . . the court should
focus on whether the baseless lawsuit conceals “an attempt to interfere directly
with the business relationships of a competitor,” through the “use [of] the
governmental process—as opposed to the outcome of the process—as . . . [a]
weapon.”
Harrah’s, 812 So. 2d at 172 (¶ 34) (quoting Prof’l Real Estate Inv’rs v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60-61, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993)). JRE and Yacht
Club argue that the defendants’ actions were in bad faith and without claim of right. But, as
the circuit court found, the defendants’ actions were not so objectively baseless as to fall
within the sham exception. The amount of resources and time used to ascertain the rights and
access of different parties to Nicola Road evidences that the litigation and the actions
surrounding it were not a sham. Further, as this Court held in Harrah’s, “a plaintiff, as a
matter of law, cannot satisfy the first prong of the ‘sham’ test—that the defendants’
petitioning activities were objectively baseless—if those activities were, in fact, successful.”
Harrah’s, 812 So. 2d at 173 (¶ 36) (citing Columbia Pictures, 508 U.S. at 60 n.5). Because
Hancock County denied a conditional use permit for continued development of the project
in 2011 as a result of the defendants’ petitions and the petitions of other concerned parties
over several years regarding the development, these actions do not meet the exception. See
Favre I, 52 So. 3d 463; see also City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S.
365, 380, 111 S. Ct. 1344, 1354, 113 L. Ed. 2d 382 (1991) (“The ‘sham’ exception to Noerr
encompasses situations in which persons use the governmental process—as opposed to the
outcome of that process—as an anticompetitive weapon.”)
27
¶69. Accordingly, regarding Yacht Club, we also find the circuit court did not err by
granting partial summary judgment.
C. Conclusion
¶70. As this Court observed in Favre III, “the circuit court did a skilled job in addressing
and applying Mississippi law to each individual cause of action [pled] by [p]laintiffs in this
case.” Favre III, 212 So. 3d at 803 (¶ 6). We continue to agree. Regarding the claims on
direct appeal, we hold that the court did not err by granting partial summary judgment in
favor of the defendants and against JRE and Yacht Club.
IV. On cross-appeal, did the circuit court err by finding that judicial
estoppel does not bar the remaining claims by JRE against Scott
Favre because JRE failed to include this damages suit in its 2009
bankruptcy filings?
¶71. The defendants argued in the circuit court that JRE should be judicially estopped from
bringing its suit for damages because JRE did not list that potential damages suit in its
bankruptcy schedules in 2009. The circuit court denied this aspect of the defendants’ motion
for summary judgment, reasoning as follows:
Plaintiffs listed all actions pending at the time of bankruptcy filing in the
section listed as “Suits and Administrative Proceedings”; the current suit was
not included, as it had yet to be filed. The [p]laintiffs listing of current suits in
one section, but failure to repeat in another is mere inadvertence.
¶72. “As explained above, we review the circuit court’s application of judicial estoppel
using the abuse of discretion standard,” but we “use the [de novo] standard to determine
whether summary judgment was or was not appropriate.” Adams, 208 So. 3d at 580 (¶¶ 12-
13). We also acknowledge that this Court considers “denial of summary judgment [as] an
28
interlocutory order,” which “may only be appealed by permission.” Ne. Mental Health
Mental Retardation Comm’n v. Cleveland, 126 So. 3d 1020, 1024 (¶ 15) (Miss. Ct. App.
2013) (citing Hinds Cty. v. Perkins, 64 So. 3d 982, 984 (¶ 7) (Miss. 2011)). However, the
defendants are correct to the extent that judicial estoppel could have applied to those claims
for which the trial court granted partial summary judgment.
¶73. First, it is irrelevant that the suit “had yet to be filed.” “The duty of disclosure in a
bankruptcy proceeding is a continuing one, and a debtor is required to disclose all potential
causes of action.” In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999) (emphasis
added) (quoting Youngblood Grp. v. Lufkin Fed. Sav. & Loan Ass’n, 932 F. Supp. 859, 867
(E.D. Tex. 1996)). Moreover, “[t]he debtor need not know all the facts or even the legal basis
for the cause of action; rather, if the debtor has enough information . . . to suggest that it may
have a possible cause of action, then that is a ‘known’ cause of action such that it must be
disclosed.” Id. (emphasis added) (internal quotation marks omitted) (quoting Youngblood,
932 F. Supp. at 867)). JRE’s knowledge of the possible claims it had against the defendants
required JRE to disclose the claims on its bankruptcy schedules, even though JRE had not
filed the damages lawsuit.15
¶74. Second, failure to disclose a claim in bankruptcy proceedings implicates judicial
estoppel. Id. at 207-08; Kirk, 973 So. 2d at 991-92 (¶¶ 31-40) (Miss. 2007). A party is
15
As previously shown, JRE had asserted damages claims when it filed its 2008
declaratory judgment suit, and that suit was listed on the bankruptcy schedules. Favre II,
148 So. 3d. at 364 (¶ 2). However, the damages claims were dismissed without prejudice
prior to JRE’s filing for bankruptcy; so the listing of the chancery court suit does not mean
JRE disclosed its potential claims.
29
judicially estopped from taking an inconsistent position in different judicial proceedings if
the following three elements are met: “‘(1) its position is clearly inconsistent with the
previous one; (2) the court . . . accepted the previous position; and (3) the non-disclosure
[was not] inadvertent.’” Kirk, 973 So. 2d at 991 (¶ 32) (quoting Superior Crewboats, Inc.
v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir. 2004)).
¶75. As noted above, the circuit court found that JRE’s nondisclosure was “mere
inadvertence,” which concerns the third element of judicial estoppel. The problem is that the
court made this finding at the summary judgment stage. Whether JRE acted inadvertently is
a question of fact, and the plaintiffs presented evidence that JRE may not have acted
inadvertently. For example, in the Mississippi Rule of Civil Procedure 30(b)(6) deposition
of JRE, a JRE representative testified as follows:
Q. Okay. And in 2008 you still believed you had damage claims worth
hundreds of thousands of dollars?
A. I do.
Q. In 2009, you’re speaking for Jourdan River Estates here, you still
believed you had damage claims against them worth hundreds of
thousands of dollars, correct?
A. Correct.
¶76. JRE acknowledged claims it believed to be “worth hundreds of thousands of dollars,”
yet it did not disclose them in the 2009 bankruptcy filings (or in any amended filings later).
“A debtor’s non-disclosure is ‘“inadvertent” only when, in general, the debtor either lacks
knowledge of the undisclosed claims or has no motive for their concealment.’” Kirk, 973 So.
30
2d at 991 (¶ 35) (quoting Superior Crewboats, Inc., 374 F.3d at 335). Such testimony is
evidence that JRE—at the least—knew of the claims at the time of the bankruptcy filing.
¶77. “[D]isputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Sherrod v. U.S. Fid. & Guar.
Co., 518 So. 2d 640, 642 (Miss. 1987) (quoting Anderson v. Liberty Lobby, 477 U.S. 242,
247-248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986)). The defendants presented
credible evidence to the trial court to dispute JRE’s claim that it acted inadvertently when it
failed to list its potential suit for damages in its bankruptcy filings.
¶78. But in accord with our precedent that a trial court lacks appellate jurisdiction to certify
a denial of summary judgment as final under Mississippi Rule of Civil Procedure 54(b), this
Court lacks appellate jurisdiction over these remaining claims pending in the trial court. See
Perkins, 64 So. 3d at 988 (¶ 19) (“We find no compelling reason to abandon our current
practice regarding interlocutory review of pretrial denials . . . .” (citing M.R.A.P. 5));
Cleveland, 126 So. 3d at 1024 (¶ 15) (“The [judge’s] grant of partial summary judgment did
not decide a claim between the two parties. Rather, it merely decided an issue within their
claims . . . . And the denial of summary judgment is an interlocutory order that may only be
appealed by permission.” (citing Perkins., 64 So. 3d at 984 (¶ 7))). Absent proper
jurisdiction, we cannot address the denial of summary judgment regarding the claims
remaining here.
¶79. Therefore, this Court dismisses defendants’ cross-appeal regarding judicial estoppel,
and we remand the case to the circuit court for further proceedings.
31
CONCLUSION
¶80. This Court judicially notices the revocation and reinstatement of JRE. But we find that
JRE’s eligibility to bring suit involves capacity, an issue the parties have waived on appeal.
On direct appeal, we affirm the circuit court’s ruling granting partial summary judgment in
favor of the defendants. On cross-appeal, we dismiss the defendants’ appeal regarding the
circuit court’s ruling that judicial estoppel could not apply to the remaining claims, and we
remand the case for further proceedings consistent with this decision.
¶81. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED AND
REMANDED.
RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
32