IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-01386-SCT JOURDAN RIV

ER ESTATES, LLC AND JOURDAN RIV

ER RESORT AND Y

ACHT CLUB, LLC

v. SCOTT M. FAV

R E, CINDY FAV

RE AND JEFFERSON PARKER

DATE OF JUDGMENT: 09/22/2017 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS, JR. TRIAL COURT ATTORNEYS: TINA LORRAINE NICHOLSON GEORGE W . HEALY, IV ROBERT B. W IYGUL CLEMENT S. BENVENUTTI COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: GEORGE W . HEALY, IV ATTORNEY FOR APPELLEES: ROBERT B. W IYGUL 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 f ourth arising f

r om this d i s p u t e . 1 A s w e noted in Favre II ,“[ t]he instant case f

ollows a com

plex f actual and procedural h istory

. . . .” Favre II , 148 So. 3d at

1 F a v re v. H a n c o ck C ty. B d . o f S u p erviso rs , 5 2 S o . 3 d 4 6 3 ( M i ss. C t. A p p . 2 0 1 1 ) ( F a vre I ); F a vre v. J o u rd a n R iver E

sta tes , 1 4 8 S o . 3 d 3 6 1 (M iss. 2 0 1 4 ) ( F a vre II ); J o u rd a n R i ver E

sta tes, L L C

v. F a vre , 2 1 2 S o . 3 d 8 0 0 (M iss. 2 0 1 5 ) ( F a vre III ).363 (¶ 2). From 2007 to 2 0 14, the parties em ploy ed signif

icant res o u r c e s in l itigating “the rights of the various parties as to Nicola Road, a county road that allows the various property

owners access to Highway 603.” I d. Jourdan R iver Estates (JRE) prevailed in that litigation, securing m

uch-needed a ccess to Nicola Road f or the purpose of developing its 269-acre tract of land and constructing hundreds of condom inium s . Id. at 363 (¶ 1). ¶2. Th i s l i t i g a t ion took its toll, and “the seven y ear delay has been costly f or” JRE and Jourdan River Resort and Yacht Club, LLC (Yacht C lub). 2 On Decem ber 19, 2011, JRE and Yacht Club sued Scott Fa v r e , Cindy Favre, and J ef f e rson Parker—neighboring property

owners who opposed developm ent—f or d a m a g e s i n H a

n c o c k C o u

n t y C i r c u it C ourt, asserting
f if teen dif f erent causes of action. All of the causes of action are based on the allegations that the def e ndants delay ed developm e nt of the condom inium

com plex. ¶3. Af ter y ears of protracted proceedings, t h e c i r c u i t c o u r t granted partial sum m ary judgm ent in f

avor of the def

endants. 3 I n its order, the c i r c uit court divided its analy sis between JRE and Yacht Club, explaining the r easons sum m ary judgm en t was appropriate against each plaintif

f

. Sim ply put, the circuit cou r t disposed o f each cause o f action by (1) apply ing the statute of l im itations bar, (2) f inding that the plaintif

f s lacked standing to bring

2 JR E f iled f o r b a n k ru p tcy i n 2 0 0 9

. A f ter co m in g o u t o f b an k ru p tcy , JR E tran sf erred its p ro p e rty to Y ach t C lu b , a n ew L L C o w n ed an d o p erated b y th e o w n ers o f JR E

. T h e tw o L L C s co llectiv ely s u ed th e d ef en d an ts f o r acts an d o m issio n s th a t alleg ed l y o ccu rred d u rin g th eir resp e ctiv e o w n e rsh ip s o f th e p ro p erty

. 3 T h e circu it c o u rt g ran ted a p artial su m m ary j u d g m en t th a t ef f ectiv ely d isp o s e d o f alm o s t all o f th e p lain t if

f s’ claim s. T h e circu it co u r t certif i ed th e j u d g m en t as f

in al, allo w i n g th e p lain tif

f s to p u rsu e th is ap p e al. S

ee M iss. R . C iv . P . 5 4 (b )

. 2the claim , or ( 3) utilizing the Noerr-Pennington 4 doctrine, which im m unizes def

endants
f rom tort-based liability f o r h a v i ng petitioned the g overnm ent. T he trial court denied the def endants’ request to apply judicial estoppel to a l l of the rem aining claim s. JRE and Yacht Club a ppealed the order granting sum m ary judgm ent, and t h e d ef e n dants cross-appealed regarding the court’s application of judicial estoppel. ¶4. During pendency of the appeal, this Court s ua sponte re q u e s t e d t h a t t h e p a r ties address the issue that JRE—a f oreign lim ited liability c om pany —was not in g ood standing with the M ississippi Secretary of State prior t o f iling its com

plaint. T he Court f

inds that the parties have waived the issue. ¶5. W e af

f i r m t h e c i r c u i t c o u r t ’s grant o f partial sum m ary judgm e nt in f avor of the def endants, but we reverse and rem and the court’s application of judicial estoppel.
F ACTS AND PROCEDURAL HISTORY 5 ¶6. JRE, a Louisiana lim ited l iability com pany , was the o wner of the 269-acre tract (the Yacht Club property ) near the com m u nity of Kiln, M ississippi, located in Hancock County

. Favre I , 52 So. 3d at 464 (¶ 1 ). Jourdan Ri v e r Resort and Yacht Club, LLC, a Louisiana lim ited liability com

pany , is the current owner of the Yacht Club property

. Cindy Favre owns the tract of

land im m ediately to the west of the Yacht Club property . She and her husband,

4 S ee n .1 3

. 5 T h e u n d erly in g f

acts are n o t i n su b stan tial d isp u te, an d th e C o u rt su m m a riz e s t h e relev a n t f acts b a sed o n th e circu i t co u r t ’ s f in d in g s o f f

act in its o rd er g ran tin g su m m ary j u d g m en t an d th e p rev io u s d e cisio n s in th e F a vre l in e o f cases to sim

p lif y a co m p lex h isto ry . 3S c o tt Favre, reside on Cindy Favre’s property

. Jef f erson Parker owns and r esides on t h e property im m ediately

to the east of

the Yacht Club property

. ¶7. In e arly 2007, JRE f iled an application with the Hancock County Planning and Zoning
Com m i ssion to r ez o n e the Yacht Club property ; JRE planned to develop a 472-unit condom inium com

plex and y acht ba s i n . The application was rejected af t er review by the Hancock Co u n t y Board of Supervisors, and JRE resubm itted its plans w i thout a zoning request in early 2008. T he second proposal w as approved by the Hancock County Board of Supervisors, and a c onditional use perm it was issued. Objecting n eighbors f iled an appeal in the H ancock County Circuit C ourt. That court f ound their o bjections to be w ithout m erit. The Court of Appeals af

f irm ed the circuit court’s judgm ent in f avor of JRE. Favre I

, 52 So. 3d at 467 (¶ 16). ¶8. D u ring that sam e tim e period, a d ispute arose between the parties ove r a 3 4 0

- f o o t portion of Nicola Road near the north end of that p u b l i c road. F avre II , 148 So. 3d at 363 (¶ 1). The p laintif

f s needed f

ull access to Nicola Road to reach their 947-f o ot private

easem ent, ultim ately so that the plaintif f s could build their c ondom i nium com plex. Id. at 363 (¶¶ 1-2). A s evidenced by all of the litigation, the def endants did not consider the plaintif f s to be entitled to f

u ll access to Nicola Road. I d. ¶9. Nicola Road is a public r oad, accessed f rom Highway 6 03. Nicola Road leads f rom Highway 603 t o the Yacht Club property , “also known as the Mentel parcel, passing by and providing access t o three parcels.” Id. at 363 (¶ 2). The three p arcels are the properties owned by the def

endants, which “were convey e d f r o m C inque Bam

bini, an ancestor in title,

4som etim e in 1986.” I d. A m ap of all of the properties can be f o und within paragraph two of
Favre II

. Id. ¶10. The plaintif

f s’ access to the right-of

-way was “com

plicated by the existence (or lack thereof ) o f two gates on Nicola Road: the Darwood Point gate

. . . and the Heitzm a nn gate.”
Id. at 364-65 (¶ 4 ). T he plaintif f s ’ access to Nicola R oad also w as hindered b y a c tions of the def endants. ¶11. On Septem

ber 22, 2008, JRE f

i l e d s u i t i n H a n c o c k C o u n ty Chancery Court f or declaratory judgm ent regarding which portions of Nicola Road a re public, a s well as identif ication of easem ent r ights of property owners adjoining the road. Id. at 364 (¶ 2). 6 JRE also requested an injunction against the other landowners to require the rem oval of all gates leading u p to the Yacht Club property

. Id. JRE’s com plaint also a l leged def

am ation, tortious interf erence with business relationships, blocking a public road, and m alicious conduct. ¶12. Af ter a prelim inary hearing, the chancery court ordered that the suit be transf erred to circuit court. To a llow the a ction to rema in in chancery c ourt, JRE dism issed all tort and dam ages claim s and f

i led an am ended com

plaint o n October 3, 2008, including only the declaratory judgm ent and injunction portion s o f the s uit. The Hancock County C hancery Court retained the m atter.

6 JR E , H an co ck C o u n ty , an d th e d ef en d an ts d isp u ted , in ter a l i a , w h i ch p o rtio n s o f N i co la R o ad w ere d ed icated to th e p u b l ic, th e e x isten ce a n d p o rtio n s o f a n y p riv ate rig h t o f w a y , th e b o u n d aries o f th o se p u b lic an d p r iv ate p o rtio n s, an d w h at rig h t s to th o se p o rtio n s ex isted am o n g st th e p arties an d th eir an cesto rs in title. Favre II , 148 So. 3d. at 364-67 (¶¶ 2-12). 5¶13. The chancery court f o un d i n f a v o r o f JRE in Decem

ber 2012, a djudicating that the 340-f oot p ortion of Nicola Road i s a public right of way that leads to JRE’s private 947-f oot

easem ent. Id. at 365 (¶ 9 ). The court a lso f ound that Scott Favre had b uilt the Darwood Point gate i n 2 0 0 7 a n d t h a t both it and the Heitzm a n n gate had t o be rem oved; the injunction prohibited the parties f

rom erecting any

gates in the f

u ture. Id. at 367 (¶ 13). ¶14. The c hancery court also e njoined t h e F a v r e s and Parker f

r om harassing or intim idating
JRE or its invitees and l icensees. Id. The injunction m ainly was directed toward Scott Favre. Id. at 367 (¶ 1 4). According to JRE, Scott Favre would accost any o n e w h o a t t em pted to

access the Yacht Club p roperty via Nicola Road, “ threatening to im pound their vehicles by shutting a n d locking the g ate.” Id. “Scott Favre would verbally harass any one who entered, repeatedly used his rif

le to s hoot JRE’s f

ence, construction perm it, p ower pole, and a security

cam era, which he specif

ically is recorded as say i ng that ‘I shot [ the security cam e r a] twenty tim es with a [ .]223 . .

. .’” Id. The chancery court also a pplied the injunction against Cindy
Favre a nd Parker because they “indirectly supported [ S cott Favre’s] actions as they generally knew of them .” Id. ¶15. The Favr e s a n d Parker appealed the c h ancery court’s judgm ent, a n d o n October 9, 2014, this Court af

f irm ed the judgm ent in F

avre II

. Id. at 376-77 (¶ 54). ¶16. W h ile these lawsuits were pending, JRE f iled f or bankruptcy on Septem

ber 9, 2009.
In the b ankruptcy schedules, JRE listed various suits and potential claim s under the pending litigation section, but i t o m itted a potential dam a ges lawsuit a s a n asset. Em erging f rom bankruptcy in February 2011, JRE w as able to r etain its ownership o f the Yacht Club

6property

. JRE transf erred the p r o p e r

t y t o t h e n e w l y c r e ated entity

— Yacht Club—shortly af

ter the close of the bankruptcy case in February 2011. The sam e owners and operators controlled both JRE and Yacht Club; an owner testif i ed that the decision t o transf er to Yacht Club m ay have concerned avoiding the stigm a of bankruptcy

. ¶17. Af ter the bankruptcy proceedings were over, JRE and Yacht Club f iled a lawsuit in circuit court against the Favres a nd Parker in D ecem ber 2011, seeking m illions of dollars in dam ages. The com

plaint alleged f

if teen causes of

action, including s l a n d e r of title; slander and/or d ef am ation; trespass; nuisance; tortious interf

erence w i th use of property ; tortious interf erence with contractual relationships; harassm ent and intim idat i o n o f p l a intif f s’ a gents and intenti o n a l i n fl iction o f em otional distress upon plaintif f s’ agents; assault upon plaintif f s’ agents; willf

ul destruction of plaintif

f s’ property ; negligence; gross, wil l f ul, and wanton negligence; m alicious prosecution; unjust enrichm ent (inasm uch as d ef

endants’ actions are believed to be m otivat e d , in part, by a desire to increase the value of their own property by using im proper m eans to lim it the use of plaintif f s’ property ); f

a l s e i m prisonm ent; and any other applicable theory of

law giving rise to a cause of a c tion.
Favre III , 212 So. 3d at 802 (¶ 1). ¶18. In response, the Favres and Parker f iled a m otion to dism iss f

or f ailure to s tate a claim under Mississip p i R

u le of Civil Procedure 12(b)(6). Id. a t 802 ( ¶ 2). T he C ircuit Court of Hancock C ounty granted th e mo tion in part and denied it in part, deny ing or dism issing alm ost all of the plaintif

f s’ claim s. Id. JRE and Yacht Club appealed that order, a rguing the def endants’ “Rule 1 2(b)(6) m o t ion should have been converted into a m otion f or sum m ary judgm ent, as provided in Rule 56 o f the Mississippi Rules of Civil Procedure

. . . . ” Id. at 802 (¶ 3).

7¶19. I n F a v r e I I I , this Court agreed with JRE and Yacht Club, i ssuing a ve r y n a r r o w holding: [ I]n considering the Rule 12(b)(6) m otion, the circuit court did a skilled job in addressing and a pply ing Mississippi l aw to e ach individual cause of action p lead[ ] by [ the p]laintif f s in this c ase. However, as dem o nstrated b y the Rule 12(b)(6) m o t i o n hearing held i n this m atter, num erous f acts were presented t o the circuit court that existed outside the pleadings. Accordingly , we f ind that Def

end a n t s ’ Rule 12(b)(6) m otion should h ave b een converted into a m otion f

or sum m ary

judgm ent, as provided by Rule 56.

. . . W e reverse the circuit court’s grant of D ef endants’ Rule 1 2 ( b ) ( 6) m otion and rem and the m atter f o r f urther proceedings c o n s i s tent with this opinion.
Id. at 803 (¶¶ 6-7). ¶20. Af ter r em and and f

u r t h er discovery , the def

endants m oved f

or sum m ary

judgm ent,

r aising several of the sam e argum ents they had raised i n their Rule 12(b)(6) m otion. Th e circuit c ourt granted partial sum m ary judgm ent in f avor o f the def

end a n t s o n alm ost all of the claim s. ¶21. In the circuit court’s Order Regarding Def endants’ M otions f

or Sum m ary Judgm ent the court noted that “ the [ c]om plaint does not specif

ically state which causes are asserted by each [ p]laintif

f

. ” S ince JRE and Yacht Club are two separate entities, e ach having owned the Yacht Club property during dif f e rent tim e periods, the court divided its analy s is between the
f acts and i ncidents alleged during JRE’s ownership o f the property (January 2005-February 2011) and Yacht Club’s ownership of the property ( February 2011-Decem ber 19, 2011, the date of the f

iling of the com p laint). 7

7 T h e circu i t co u r

t co n sid e red th at JR E acq u ired th e p ro p erty in Jan u ary 2 0 0 5 an d th at Y a ch t C lu b acq u ired th e p ro p e rty f o llo w i n g JR E ’s b an k ru p tcy in F eb ru a r

y 2 0 1 1

. 8¶22. For its analy sis regarding J RE, the circuit court determ ined either that the statute of

lim itations had run on all claim s by JRE again s t C i ndy F avre a nd Jef f erson P arker or that
JRE lacked standing to bring the claim alleged. Som e claim s by JRE a g ainst Scott Favre also

were dism issed. But the court did not dism iss all claim s against Scott Favre, f inding that the claim s of trespass, n uisance, unjust enrichm ent, negligence, and gross, willf ul, and wanton negligence against him

were not barred by

the statute of

lim itations. ¶23. The def

endants had a rgued in their m otion f or s um m a r

y judgm ent that all the claim s by JRE should have been dism issed due t o judicial estoppel—JRE had n ot listed the potential dam ages l awsuit in its b ankruptcy schedules; theref ore, it should have been precluded f rom bringing the suit. The court expressl y d e n i e d that portion of the d ef endants’ sum m ary judgm ent m otion, f

i nding that “the current suit was not included, as it had y et to be f iled[ ;] [ t]he [ p]laintif

f s[ ’ ] listing of

current suits in one section, but f a ilure to repeat in another, is

m ere inadvertence.” ¶24. For its analy s is r egarding Y acht Club, the circuit court determ ined that all c laim s by Yacht Club against all def endants were either barred b y the Noerr-Pennington doctrine or lacked viability

. ¶25. In sum , the circuit court d ism issed all claim s by Yacht Club, dism issed or d enied all claim s by JRE against Cindy Favre and Jef f erson P arker, and dism issed m ost c laim s by JRE against Scott Favre, leaving only claim s of trespass, n uisance, unjust enrichm e nt, n egligence, and g ross, willf

ul, and w anton negligence against Scott Favre. The plaintif f s argue that

9although this is nom inally a partial sum m ary judgm e n t, the ruling ends the litigation and is

ef f ectively a f inal judgm ent because Scott Favre is judgm ent proof

. ¶26. T h e c i r cuit c ourt certif ied the judgm ent as f

inal under M ississippi Ru l e o f C i v i l Procedure 54(b). On appeal, JRE and Yacht Club raise f ive issues a ddressing the trial court’s f indings: [ 1]: If p laintif

f s prove that def

endants took [ a c t ions that delay ed developm ent of the Yacht Club property ] with re s u l ting dam age to plaintif f s, do plaintif

f s have the r ight to r ecover dam age s u n d e r any legal theory [ ? ] [ 2]: Have plaintif

f s presented suf

f icient evidence

. . . t o survive def endants’ m o tions f or sum m a ry

judgm ent? [ 3]: Is there suf

f icient evidence of

agreem ent and coordination am ong the three def e ndants t o support a f

inding that each def

endant i s vicariously liable f or wrongf

ul actions of other def

end ants under the laws of conspiracy or agency ? [ 4]: Are plaintif

f s’ claim s barred by

the statute of

lim i tations? [ 5]: Are plaintif

f s’ claim s barred or lim ited by state law privilege or under the Noerr-Pennington privilege? ¶27. Because the circuit court did not rule o n the suf f iciency of the evidence as it pertained

to each claim when it granted sum m ary judgm ent, this Court likewise does not address issues one and two. As the issues involve the s tatute o f l im itations, standing to bring a claim , and the Noerr-Pennington doctrine, all argum ents relate to one c entra l i s s u e raised by the plaintif f s: did the circuit court err by granting sum m ary judgm ent?

1 0¶28. T h e def endants c ross-appealed on one issue: w hether jud i c i a l e s t o p p e l b a r s t h e

rem aining claim s by JRE against the def endants b ecause JRE om itted this dam ages s uit in its 2009 bankruptcy

f ilings. ¶29. W h ile the appeal was in progress, this Court recognized that the Mississippi Secretary of State had revoked or adm inistratively dissolved JRE’s status as a f oreign LLC in good standing on Decem

ber 5, 2011, and that the LLC was not in good standing when i t f iled its

com plaint. On Decem

ber 5, 2018, th i s C o u rt ordered the p arties to subm it supplem ental brief ing regarding whether the Court m ay take judicial notice of its registration s tatus and the ef f ect of the dissolution or revocation on JRE’s right to pursue its claim s. STANDARDS OF REVIEW ¶30. “This C ourt reviews g r ants of sum m ary jud g me n t [ d e n o v o ].” Wallace v. Town of Raleigh , 8 15 S o. 2d 1203, 1 208 (¶ 19) (Miss. 2002) ( citing Owen v. Pringle , 621 So. 2d 668,
670 (Miss. 1993)). Sum m ary judgm ent i s required “if the pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af

f idavits, if a ny , show there is no genuine issue as t o any m aterial f act and that the m o ving party is entitled to judgm ent as a

m atter of law.” Miss. R. Civ. P. 56(c). The party resisting sum m ary j udgm ent m ay not rely solely on allegations in the pleadings b ut “m ust set f o rth specif

ic f acts showing that there is a genuine issue f

or trial.” Miss. R. Civ. P. 56(e). ¶31. W e re v i ew q

uestions of law de novo. Cotton v. Paschall , 782 So. 2d 1215, 1217 (¶ 10) (Miss. 2001).

1 1¶32. Standing, a s a question o f l a w , is reviewed de novo. R osenfelt v. Miss. Dev. Auth.,

262 So. 3d 511, 515 (¶ 11) (Miss. 2018). ¶33. “[ W ]e r e v i e w t h e c i r cuit court’s application of judicial estoppel using the abuse of discretion standard.” Adam s v. Graceland Care Ctr. of Oxford, LLC , 208 So. 3d 575, 580 (¶¶ 12-13) (Miss. 2017) (“[ T]he appropriate a n a ly sis requires an appellate court to use the abuse of discretion standard to r eview the trial court’s determ i nation t h a t j udicial estoppel is or is not applicable. Then, an appellate court would u se the [ de novo ] standard t o determ ine whether sum m ary

judgm ent was or was not appropriate.”).

ANALYSIS
I. May the Court take judicial notice t hat on Decem ber 5, 2011, JRE w a s a dm inistratively dissolved and/or had its foreign LLC registration revoked under Mississippi law ? ¶34. B e cause the issue concerns whether J RE could m aintain its suit, we address it f i rs t

. ¶35. The M ississippi Rules of Evidence a u thorize a court “judicially [ to] notice a f act that is not subject to r e a s o n a ble dispute” when the f act “(1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately a nd readily determ ined f rom sources whose accuracy cannot reasonably be questioned.” Miss. R. Evid. 201. Further, the court is

em powered to take “notice on its own” and “at any stage of the proceeding.” Id. ¶36. “This Court, o f

course, m a y

take judicial notice of adjudicative f acts a t any stage of the proceedings, whether requested to do s o by a party or not.” Adm ’rs of the Tulane Educ.
Fund v. C

ooley , 462 So. 2d 696, 699 (Miss. 1 984) (citing M oore v. Grillis , 205 Miss. 865,

1 239 So. 2d 5 05 (1949)). See also McGill v . City of Laurel , 252 Miss. 740, 173 So. 2d 892, 903 (1965) (“W e take judicial knowledge of that which is com m only

known.”) ¶37. The Court is authorized to take j u d i c i a l n o t i c e o f a n y i n f o r ma t i o n “ h e lpf

ul and appropriate, including o f

f icial public docum ents, recor d s a n d p u b l i c a t i o n s . ” E

n r o t h v . M e m ’l Hosp. at Gulfport , 566 S o. 2d 202, 205 (Miss. 1990). W e h a v e held that “ there can be no doubt

. . . that judicial notice can be taken of docum e nts in the o f f ice of the Secretary of State

as one of [ the] departm ents f rom which j udicial k

nowledge m ay be a cquired.” Miss.-Gulfport Com

press & Wareh o u s e s v. Pub. Serv. C om m ’n , 1 89 Miss. 166, 196 So. 793, 795 (1940) (citing Briscoe v. Buzbee , 163 Miss. 574, 1 43 So. 407 ( 1932); W itherspoon
v. State , 138 Miss. 310, 103 So. 134 (1925)). ¶38. Accordingly , we f

ind that the Court m ay judicially n otice the f ollowing relevant f

acts:

• JRE is a Louisiana lim ited liability com pany ;

• JRE previously

registered with the Mississippi Secretary of State as a f oreign lim ited liability

com pany ;

• The M ississipp i Secretary o f S tate a d m inistratively revoked JRE’s status as a f

oreign lim ited liabilit y i n good standing on D ecem ber 5, 2011;

• JRE and Yacht Club f iled the com

plaint in this case on Decem b er 19, 2011;

• JRE was reinstated as a f o reign lim ited l iability com p any i n good s tanding by the Mississippi Secretary of State on Decem ber 7 , 2 0 1 8

. II. Does the fact that on Decem ber 5, 2011, J RE w as adm inistratively dissolved a nd/or had its fo r e i g n LLC registration revoked under Mississippi law affect its standing to pursue its claim s?

1 3¶39. Because the Mississippi Secretary of State adm inistratively revoked JRE’s status as

f oreign l im ited liability bef ore J RE f iled its c om

plaint, we ordered JRE and the def endants to f i le supplem ental brief

s to address the ef

f ect on JRE’s standing to m aintain this action. 8 ¶40. “Standing is a jurisdictional issue which m ay be raised b y any party or the Court at any tim e . . . . ” Kirk v. Pope , 973 S o. 2d 981, 989 (Miss. 2007) (¶ 58) (internal quotation m arks

om itted) (quoting City of Madison v. B ryan , 763 So. 2d 162, 166 (Miss. 2000)). To satisf y standing, there m

ust be a valid, present, and com plete cause of action in existence along with

a r ight to relief upon institution of the suit. See, e.g. , Hotboxxx, L LC v. City of Gulfport , 154
So. 3d 21, 28 (¶ 24) (Miss. 2015) (“[ S]tanding m ust e xist when litigation is com m enced and

m ust continue through all subsequent stages of litigation, or the case will becom e m oot.” (internal quotation m a rks om itted) (quoting In re City of Biloxi , 113 So. 3d 5 65, 5 72 (Miss. 2013))). ¶41. In their b rief

s, b oth parties scrutinize the standing of a dissolved or revoked LLC to
pursue claim s upon its reinstatem ent; however, both parties af f irm this el i g ibility is not an i s sue of s tanding. Instead, both parties aver that the r ight to b ring suit in the present cas e involves capacity

. 9 Standing is dif f erent than capacity , which concerns the f orm al ability of

8 The Mississippi Foreign Lim ited Liability C om pany Act r equires a f

o reign lim ited liability com

pany “transacting business in this state” to register bef o re it m ay “m aintain any action, suit, or proceeding in any court of this state.” Miss. Code. Ann. § 7 9

- 2 9

- 1 0 1 3 (1) (Rev. 2014). A f

oreign lim ited liability com p any with an adm inistratively r e v oked regis t r a t i o n m ay not m aintain a suit until registration is reinstated. M iss. Code Ann. § 79-29-1023(8) (Rev. 2014).

9 A cco rd in g to JRE and Yacht Club, “by obtaining reinstatem ent, [ JRE] ha s s im ply sought to cure an arguable procedural def iciency which has no b earing on the m erits of the substantive claim .” The def endants “subm it that the constraint on Jourdan River Estates[ ’]

1 4a 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 com e into

court. It i s distinguishable f r om standing to sue which is a right to relief , which goes to the existence of the cause of a ction.” (internal quotation m a rks om itted) (quoting 67A C.J.S.
Parties § 11 (2008))); S. T r ucking Serv., Inc. v. M

iss. S and & Gravel, Inc. , 483 So. 2d 321,
323 (Miss. 1986) (“It is the ru l e e v e r y w h e r e that ‘ in e very action there m u st be a real plaintif f , 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 C ourt f

i nds that JRE’s lac k o f c a p acity has been cured. JRE reregistered as a f oreign lim i ted liability com pany in good standing w ith the Mississippi S ecretary of State. All parties accom m odated r eregistrat i on pending this appeal, and a ll p arties consented to supplem ent the record r egarding the LLC’s continued existence. See Funderburg , 6 So. 3d

at 4 42 (“In the present case, the A ppellants were given s uch an opportunity to substitute the real party in interest.”).

f iling suit is m ore properly considered an i ssue of capacity to sue, or statutory standing, than constitutional standing.”

10 M ississippi Rule o f Civil Procedure 17(a) sets m inim al requirem ents f or capacity to sue and to be sued: litigation b e tween r eal parties in interest. Miss. R. Civ

. P

. 1 7 ( a ) (“An executor, adm inistrator, guardi a n , b ailee, trustee, a party with whom or in whose nam e a contract has been m ade f

or the benef

i t of another, or a party authorized by statute m ay sue in his representative capacity .”). W hen the party is n ot a real party in interest, or otherwise lacks capacity

to bring suit, an action m ay not be m aintained. S ee Funderburg v. Pontotoc E l e c . Power Ass’n , 6 S o. 3d 439, 442 (¶ 11) (Miss. Ct. App. 2009) (“R u le 1 7 (a) o f th e M ississip p i R u les o f C iv il P ro ced u re req u ires th at a claim b e f iled o n b e h a l f o f th e real p arties in in terest. [ P lain itif f ] co u ld n o t b e su ch a real p arty i n i n terest b ecau s e it h ad b een d isso lv ed m o r e th an eig h t y ears b ef o re th e alleg ed in cid en t

to o k p lace.”). 1 5¶43. Accordingly , w e f ind this issue on appeal has been waived, expressly o r i m p liedly , by the parties. The Court m ay decline to address capacity u nder Mi s s i s s i p p i Rule of Civil Procedure 17(a) when the p arties have ratif ied the existence of the real party in interest to the suit a nd there is no present def e ct regarding capacity

. 1 1 See Miss. V alley Silica Co., Inc. v.
Barnett , 227 So. 3 d 1102, 1110 ( ¶ 14) (Miss. Ct. App. 2016) (“Valley ’s objection is n ot a jurisdictional issue o f ‘standing’ but a real-party -in-interest objection, which m ay b e waived i f not tim ely asserted.” (citing M .R.C.P. 17(a))), abrogated on other grounds by Portis v . State , 245 So. 3d 457 (Miss. 2018); Doe v. Holm e s Cty. Sch. Dist. , 246 S o. 3d 9 20, 924-25 (¶ 17) ( Miss. Ct. App. 2018) (“‘[ U]nlike standing, the lack of which cannot be waived or cured, capacity to s u e can be cured’ on rem and and is not a jurisdictional issue

. . . .” (quoting
Lewis v. Ascension Parish Sch. Bd. , 662 F.3d 343, 347 (5th Cir. 2011))). ¶44. Theref

ore, we hold that this question is not an issue of standing b ut o f capacity , and both parties have waived the issue on appeal.
III. On direct appeal, did the c i rcuit err by granting partial sum m ary judgm ent in favor of the defendants?

11 U nder the rule,
No action s hall b e dism issed on the ground that it is not prosecuted in the n am e of the real party in in t e r e s t u n t i l a reasonable t im e has been allowed af ter objection f

or rat if ication o f com m e ncem ent of the a ction by , or j oinder or substitution of

, the real party in inte r e s t ; a nd such ratif ication, joinder or substitution shall have the s am e ef f ect as if the action had been com m enced in the nam e of

the real party

in interest. Miss. R. Civ. P. 17(a)

. 1 6¶45. The circuit court divided its analy sis between the claim s pertinent to JRE and those

regarding Yacht Club. W e do the sam e. A. JRE 1. Claim s barred for lack of standing ¶46. JRE b r o u g h t c laim s against the def endants f or harassm ent and intim i dation of its agents and intentional inf

liction of em otional distress on i ts a gents; assault on its a g ents; and
f alse im prisonm ent. As the trial court noted, these causes of action are against “ the person of JRE’s em

ploy ees . . . [ a nd not] against the [ entity ] of JRE.” As a result, the “real part[ ies] in i nterest” f

or these c laim s are JRE’s em ploy e e s, not J RE. Kirk , 973 So. 2d at 988 (¶ 21) (Miss. 2007). J RE lacks standing to bring these c laim s . Id. The circuit court did not err by granting sum m ary

judgm ent on these grounds. ¶47. F u r t h e r , t h e p laintif f s did not assign as error or m ake any argum ent respecting thi s portion of the circuit court’s o r der. Theref ore, argum ent against the dism issal o f these claim s 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 brief i ng, we consider it abandoned and waived.” (citing Sum rall v. State , 758 So. 2d 1091, 1094 (Miss. Ct. A pp. 2000))); Petty v. Baptist M

em ’l Health Care Corp. , 190 So. 3d 17, 20 (¶ 7) (Miss. C t. App. 2015) (plaintif f
“f ailed , o n a p p e al, to raise any argum ents regarding the circuit c ourt’s grant of sum m ary judgm ent on her claim s of tortious interf erence and def

am ation, [ and] she has now waived those issues.”).
2. Claim s barred by the statute of lim itations

1 7¶48. Except f o r f i v e c l a i ms a g a i n s t S c ott Favre, the c ircuit court applied against all def endants the statute of lim itations bar with respect to JRE’s rem a ining claim s. T he statute of lim itat i o ns f

or libel, slander, and slander o f title is one y ear. Miss Code Ann. § 15-1-35 (Rev. 2 014). The statute of lim i tations f

or enum erated intentional torts is one y ear. Id

. The catch-all statute of lim itations f or tort claim s is three y ears. Miss. Code Ann. 15-1-49 (Rev. 2014). The circuit court was correct that all rem a i ning allegations were com m itted outside the relevant lim itations period. JRE m akes several unavailing argum ents in its attempt to circum vent the statute of

lim itations. ¶49. F i r s t , JRE points t o two events that occurred within one y ear of the f iling o f t h e

com plaint: (1) July 2011: The Board of Su p e r visors m eeting at which an attorney speaking on behalf of Cindy Favre and J e f f e rson Parker persuaded the Board to decline to extend the JRE/[ Yacht C lub conditional use perm it] by claim ing, in p erti n ent part, that [ Yacht Club] was not e ntitled to an e xtension because JRE and [ Yacht Club] had f ailed to m a k e suf

f icient p rogress i n developing the property

. . . . (2) A u g u s t 2011: C indy Favre conf ronted a JRE contractor attem pting to access the [ Yacht Club] property v ia Nicola Road and d eterred the contractor f rom perf orm ing services on the JRE tra c k b y c laim i ng, without any objectively reasonable basis, that JRE invitees and licensees would be trespassing, a nd subject t o p rosecution f or crim inal trespass, if they attem p ted to access the [ Yacht Club] tract via Nicola Road. JRE’s reliance on these two events is m isplaced. The circuit court did not apply the statute of lim itations to any claim s arising f rom these events. A s the circuit c ourt noted, Yacht Club took possession of the property in February 2 011. Claim s based on allegations that occurred af ter F ebruary 2011 are pertinent to Yacht Club, n ot JRE. T he circuit court correctly barred

1 8Yacht Club’s claim s on other grounds, nam el y , the N oerr-Pennington doctrine, not the statute of lim itations. ¶50. Second, J RE attem pts to tie all the e vents together a n d t o a r g u e that the statute of lim itations w as tolled because the def e ndants e ngaged in a civil consp i r a c y t o obstruct developm ent o f the property , s pecif ically , to com m it conduct related to slander, def am ation, and slander of title. Civil conspiracy is not a specif ically enum erated claim in the plaintif f s’

com plaint. But the circuit court a naly zed the argum ent because of the p laintif f s ’ g e neral claim of “[ a]ny other applicable theory

of law giving rise to a cause of action.” ¶51. The c ircuit court c ites a case decided by the Court of Appeals f or the proposition that civil conspiracy is an intentional tort that carries a one-y ear statute of lim itations. McGuffie

v . H e r r ington , 9 66 So. 2d 1274, 1278 (¶ 8) (Miss. Ct. App. 2007) (citing Gaspar r i n i v . Bredem eier , 802 So. 2d 1062 (Miss. Ct. App. 2001)). The trial court noted that “[ t]he f acts relied [ upon] f

or the alleged civil conspiracy are r ecitations of the f acts a lleged i n the 2008

com plaint.” And as the c laim is “[ s]im ilar to the other e n um erated int e n t i o n a l t o rts, any claim [ s] by [ p]laintif

f s f or civil conspiracy are b arred by the o ne-y ear statute of lim itations.” ¶52. T h i s C o u r t p r e v i ously h as said that the statute of l im itations f or a claim of

ci v i l conspiracy c arries a three-y ear statute o f l i mi t a t i on. Carter v. Citigroup, Inc. , 938 So. 2d 809, 817 ( ¶ 3 9) (Miss. 2006) (citing Am . Bankers’ I ns. Co. v. Wells , 819 So. 2d 1196, 1200 ( Miss. 2001)). See also Rankin v . Am . Gen. Fin., Inc. , 912 So. 2d 725, 726 (¶ 2) (M i s s . 2005) (“Unless it is tolled, the statute of lim itati o ns o n all of the claim s [ i ncluding civil

1 9conspiracy ] asserted by the P laintif f s i s three y ears or less and h ad theref ore run by the t im e Plaintif f s f iled suit.” (citing Miss. Code Ann. § 15–1–49 (Rev. 2003))). ¶53. Upon review, JRE c ontended a conspiracy existed as early as 2007, m ore than three
y ears bef ore the f iling o f t h e com

plaint in this case. Specif ically , JRE claim ed that the def endants “have sy stem a tically conspired during a tim e f rom Septem

ber 2 007 to the present [ f iling of com

plaint, Decem

ber 19 , 2 0 1 1 , ] to destroy plaintif f s’ business and deprive plaintif f s of the legitim ate use of their property

. ” T he record r ef lects—and JRE asserted—that the d ef

endants were cognizant of such collusion. Y et, despite the def endants’ allegedly m aintaining a conspiracy , the plaintif f s f ailed to pursue this action w ithin the prescribed statute of lim itations. ¶54. F u r t h e r , J R E i n s t i t u t e d an ac t i o n s e e k i n g r e c o v e r y f r o m t h e d e f

e n d a n t s ’ collaborations; b ut JRE dropped those claim s when it f iled i ts am ended com

plaint in October
2008. J RE alleged in its Septem ber 2008 c o mp l a int that the def endants “constructed, authorized the construction of , a nd/or colluded in the construction of the gate across Nicola Road.” T he claim s seeking dam ages f rom that i n c i d e n t were dism issed without prejudice.
But J RE and its successor did not return to court to seek dam ages f o r this claim ed conspiracy until Decem

ber 2011. See K

oestler v. Miss. Baptist Health S ys., Inc. , 4 5 So. 3d 2 80, 283 (¶ 11) ( Miss. 2010) (“[ T]he statute of lim itations ran long bef

ore the second suit was f

iled.”). ¶55. JRE’s com

plaint cites s pecif

ic activities of the def

endants—such as construction of the gate—as “representative” of a “sy stem atic, joint, ongoing c onspiracy to spread the f alse im p ression that plaintif

f s do not have the legal right to access their property .” But the trial

2 0court a ddressed the viability of claim s s tem m ing f rom those incidents. And while there m ay be instances when this Court can r ecognize an ongoing conspiracy , JRE’s conspiracy claim here f ell o utside the statute of lim itations. The later incidents JRE cites are not suf f icient to extend this conspiracy

claim indef initely

. 12 ¶56. Moreover, the circuit court went f urther and addressed the civil conspiracy claim on the m erits, correctly f

inding that “[ e]ven if the slander of title claim s were not b arred by the

statute of lim itations, the claim s would still f a i l.” T he plaintif

f s alleged that “ Jef

f erson P a rker, Cindy Favre[ ,] and Scott Favre conspired to com m it slander of title by : (1) stating that J RE’s easem ent was not suf f i cient to serve as a[ n] a c cess [ point] f or the c ondom inium developm ent, (2) placing a f arm g ate o n Nicola Road[ ,]

. . . and ( 3) claim ing t o own Nicola Road and/or JRE’s e asem ent.” But, as the circuit court rightly observed, these statem ents and

acts w ere “ the subject of the [ c]hancery [ c]ourt action, Hancock C ounty Cause No. 08-786[ , and] [ n]one of the i ssues i n the suit [ was] f ound t o be f

rivolous.” “Com m

u nications published in due course of a judicial proceeding are absolutely privileged and will not sustain an action f

or slander of

title.” Mize v. Westbrook Constr. C o. of O xford, LLC

, 146 So. 3d 344, 349 (¶ 13) (Miss. 2014) (citing Dethlefs v. Beau M aison Dev. Corp. , 511 So. 2d 112,
117 (Miss. 1987)). “All citizens have the constitutional ri g ht to petition o ur courts to adjudicate honest disputes.” Id. at 350 (¶ 14). T his Court af f irm s the circuit court’s holding that “[ t ]he events surrounding [ the chancery court] suit m ay not be the basis f or a slander of

12 J R E p o in ts to acts co m m i tted af ter F eb ru ary 2 0 1 1 ; b u t th o se claim s a r e p ertin en t to Y a ch t C lu b , n o t J R E

. JR E also alleg ed th at th e d ef e n d an ts cau sed th e p lacem en t o f a larg e p i l e o f ro ck s o v er JR E ’s rig h t o f w ay in A p ril 2 0 0 9 ; b u t th e in c i d e n t w as n o t arg u e d o n ap p eal. 2 1title action.” Accordingly , the trial court did not err by g ranting partial sum m ary j udgm ent

regarding conspiracy

. ¶57. Finally , JRE argues that the continuing tort doctrine tolled the statute of lim itations

on its claim s because of

the “continuing presence of the gate[ s] and signs” that “im peded” developm ent of

the property

. ¶58. This Court observes that [ a] continuing tort is one inf licted o ver a period of t im e; it involves a w rongf ul conduct that is repeated until d esisted, and e ach day creates a s eparate cause of action. A continuing tort suf f icient to toll a statute of lim itations is occasioned by c ontinual unlawf ul a cts, not by continual ill ef f ects f rom an original violation.
Hum phries v. Pearlwood Apartm ents P’ship , 70 So. 3d 1 133, 1135 (¶ 8) ( Miss. Ct. App. 2011) ( internal quotation m arks om itted) (quoting Pierce v . Cook , 992 So. 2d 612, 619 (¶ 25) (Miss. 2 008)). The cir cuit court noted correctly that “[ t]he construction and continual existence of the Nicola R o a d g a t e does not constitute a continuing tort as explained in
Hum phries .” The D arwood Point gate was built once in 2 0 0 7 , not m ultiple tim es; and its continued existence af

ter its placem ent does not q ualif y as a continuing t ort. See H um phries , 70 So. 3d at 1136 (¶ 11) (“W e f ind that the constru c t i o n . . . was one event, n ot a repeated action.”) ¶59. The continuing tort doctrine does n o t a p p l y h e r e , b e c a u s e t h e a l l e g e d “ harm reverberates f

rom a s in g l e , o n e-tim e a ct or om ission.” Stevens v. Lake , 615 So. 2d 1177,
1183 (Miss. 1993). Moreover, JRE did not seek dam ages s tem m ing f rom construction of the

2 2gate until Decem ber 2011 and had dism issed such claim s i n a lawsuit m ore than three y ears bef ore. ¶60. Accordingly , r e g a r d i n g J RE, w e f i nd that the circuit court did n ot err by granting partial sum m a ry

judgm ent.
B. Yacht Club ¶61. In i ts order, the circuit c ourt noted that Yacht Club has owned the Yacht Club property only since February 2011. T he only allegations m ade b y Y a c h t Club that a re said to have occurred af

t er that tim e are as f

o llows: (1) Counsel f

or the def endants m ade f

alse representations to the Hancock County Board of S upervisors regarding Yacht C lub’s access to Nicola Road in February and July of 2011. (2) Cindy Favre told Y acht Club’s em p loy ees th a t t h e y were illegally on the property

on August 11, 2011. (3) On Septem

be r 25, 2011, def

endants persuaded Hancock County em ploy ees to p lace a sign on Nicola Road stating “county m a intenance ends here.” (4) The gates on Nicola Road still existed during this tim e, constituting a continuing tort. (5) The def

endants m ade threatening com m e n t s to Mike F elter, a JRE/Yacht Club representative, and Yacht Club em p loy ees. ¶62. The circuit court disposed o f the second, f ourth, a nd f

if th allegations u sing the sam e continuing tort and standing analy ses that it had used f or JRE. W e agree with the circuit court and its d isposition of these claim s. For the rem aining claim s arising o ut o f the f irst and third allegations, the court applie d t h e Noerr-Pennington doctrine, which we now s pecif ically address.

2 31. Claim s barred by the Noerr-Pennington doctrine

¶63. In Harrah’s V

icksburg Corp. v. Pennebaker , 812 So. 2d 163 (Miss. 2001), this Court expressly adop t e d t

h e N o e r r - P e n n i n gton doctrine. “ T he essence of the doctrine is that parties who p etition the governm ent f o r governm e ntal action f avorable to them cannot be [ held civilly liable]

. . . . [ including] ‘petitions’ m ade to the . . . judicial branch[ ] of governm ent, [ e
. g. ], in the f

orm o f adm inistrative or legal proceedings

. . . . ” Id. at 171 ( ¶ 3 0 ) ( q u o t i n g V ideo Int’l Prod., Inc. v. W arner-Am ex Cable Com m c’ns, Inc. , 858 F.2d 1 075, 1082 (5th Cir. 1988)). 1 3 “The N

oerr-Pennington doctrine applies in state court a nd t o state l aw claim s because it is grounded on First Am endm ent rights to petition the governm ent.” Id. at 171 (¶ 31). This Court has not had m any opportunities to exam ine the doctrine f o llowing ou r decision in Harrah’s

. 14

13 N o err ref ers to th e S u p rem e C o u rt’s o p i n io n in E . R . R . P resid en ts C o n feren ce v. N o err M o to r F reig h t, In c. , 3 6 5 U .S

. 1 2 7 , 1 2 8 , 8 1 S

. C t. 5 2 3 , 5 2 5 , 5 L

. E d

. 2 d 4 6 4 (1 9 6 1 ). T h e N o err C o u rt h eld th at th e d ef en d a n ts— m aj o r r ailro ad co m p an ies— d id n o t v io late th e S h erm an A n ti-T ru st A ct in a cam p aig n to in f

lu en ce g o v e rn m en t actio n t o ad v an tag e itself an d to p r ej u d ice its co m

p etito rs, l o n g -d istan c e tru ck in g co m p an ies. I d . P e n n in g to n d eriv es f ro m U n ited M i n e W o r k ers o f A m erica v. P

en n in g to n , 3 8 1 U

. S

. 6 5 7 , 6 5 9 , 8 5 S

. C t. 1 5 8 5 , 1 5 8 7 , 1 4 L

. E d

. 2 d 6 2 6 (1 9 6 5 ). T h e C o u rt in P e n n in g to n

— in th e co n tex t o f a ctio n s b y larg e m in in g co n cern s t o m o n o p o lize c o m m erc e

— s i m i l a r l y f o u n d th at “ [

j ] o in t ef f o rts to in f lu en ce p u b lic o f f icials d o n o t v io l ate th e an t itru st law s ev e n th o u g h i n ten d ed to elim in ate co m p etitio n .” I

d . at 6 7 0

. T h e S u p rem e C o u rt s u m m a rized th e F irst A m e n d m en t f o u n d atio n o f its h o ld in g s in N

o e rr an d P

en n in g to n : “[ t ] h e sam e p h ilo so p h y g o v ern s th e ap p ro ach o f citizen s o r g ro u p s o f th e m to a d m in istrativ e a g e n cies ( w h ich are b o th creatu res o f th e leg islatu re, a n d a r ms o f th e ex ecu tiv e) an d to co u rts, th e th ird b r an ch o f G o v ern m en t. C e rtain l y th e rig h t to p etitio n ex ten d s to al l d ep artm en ts o f th e G o v ern m en t.” C a l. M o to r T r a n sp . C o . v. T ru ck i n g U n lim ited , 4 0 4 U .S

. 5 0 8 , 5 1 0 , 9 2 S

. C t. 6 0 9 , 6 1 1

- 1 2 , 3 0 L

. E d

. 2 d 6 4 2 (1 9 7 2 ).

14 T h e H a rra h ’ s C o u rt ap p lied th e N o err-P en n i n g to n d o ctrin e to p ro tect co o rd in ated an d e x ten siv e ef f o rts b y p riv a te acto rs t o in f lu en ce a g o v ern m en t en tity to d en y a casin o p erm it; sp ecif

ically , th e C o u r

t r ev e rsed a n d ren d e red a m u lti-m illio n d o llar j u ry 2 4¶64. The circuit court applied the doctrine to all claim s related to com m unications between the d ef endants and e ither the board of supervisors or the Hancock County em ploy ees, determ ining that those actions were petitions that were protected u nder the NoerrPen nington doctrine. See id. at 171 (¶ 30). W e a f f i rm the trial court’s application of the doctrine to these claim s. ¶65. In February and July of 2011, counsel f or the def endants p etitioned Hancock County , requesting that the board of supervisors deny an extension of Yacht C l ub’s conditional use
perm it. On Septem

ber 25, 2011, the d ef

endants requested that Hancock County e m ploy ees place a sign on Nicola Road s tating “county m a i ntenance ends h ere.” It is a xiom atic that these activities a re “petitions” to the g o v e r nm ent as contem

plated in Harrah’s , and the circuit court correctly determ ined that these actions could not be the basis f or civil liability

. ¶66. On appeal, JRE and Yacht Club argue that the Noerr-Pennington doctrine creates a privile g e ( e.g. , the spousal com m u nications p rivilege) a nd that the privileged

v erd ict th at f

av o red p lain tif

f s w h o h ad alleg ed th at v ario u s M ississip p i casin o s “ co n sp ired to o p p o se an d d e f

e a t a p ro p o sal

. . . seek in g ap p ro v a l o f th e M ississip p i G am i n g C o m m issio n ( M G C ) to b u ild a casin o an d au to m o b ile r acetrack p ro j e c t o n th e B ig B lack R i v er in Warr e n C o u n t y .” H a rra h ’s , 8 1 2 S o . 2 d at 1 6 5 ( ¶ 1 ). T h is C o u rt h eld th at th e
“ N o e rr– P en n in g to n d o c t r i n e a

p p lies in state co u r

t a n d to state l aw claim s b ecau se it is g ro u n d ed o n F i rst A m en d m e n t rig h ts to p etitio n th e g o v ern m en t

. . . . an d [ is] eq u ally ap p licab le u n d er state l aw .” Id . at 1 7 1 (¶ 3 1 )

. We— lik e o th er co u rts— f o u n d i ts ap p licatio n o u tsid e its an ti-tru st o r ig in s an d h eld th at “[ t] h e d o ctrin e th u s b a r s n o t o n ly t h e [ p a rties’] restrain t o f trad e c laim s in th i s case, b u t also th eir c laim s f o r to rtio u s in terf

eren ce an d civ il c o n s p i r a c y . ” Id

. a t (¶ 3 2 ). S

ee a lso V

id eo , 8 5 8 F .2 d at 1 0 8 4 (“A lth o u g h th e N o err– P en n in g to n d o c tri n e i ni t i a l l y a r ose in th e an titru st f

ield , o th er circu its h av e ex p an d ed it to p ro tect f

i rst am en d m en t p etitio n i n g o f th e g o v ern me n t f ro m claim s b ro u g h t u n d er f ed eral an d state law s , in clu d in g sectio n 1 9 8 3 an d co m m o n -law to rtio u s in terf eren ce w ith co n tractu al relatio n s.” ( citin g E v ers v. C ty. o f C u ster , 7 4 5 F .2 d 1 1 9 6 , 1 2 0 4 (9 th C ir. 1 9 8 4 ); G o rm a n T

o w ers, In c. v. B o

g o sla vsk y , 6 2 6 F .2 d 6 0 7 , 6 1 4 (8 th C ir. 1 9 8 0 ))). 2 5com m

unications d iscussed above still can b e u sed as evidence f or their claim s. For exam

ple, JRE and Yacht Club contend that
State court decisions i n t e r preting com m o n l aw privileges, [ e.g. ,] the judicial privilege [ that] protects w itnesses and attorney s in judicial p roceedings, will show that state courts m ake the sam e distinctions: com m unications can be privileged, actions are not privileged; evidence of com m unications [ that] are privileged can, where appropriate, be of f ered to show notice or the def endant’s m otive and intent in taking actions and m aking non-privileged statem ents. ¶67. This Court interprets the Noerr-Pennington doctrine not to operate as a p rivilege, as the plaintif

f s interpret it, b ut rather as an im m unity bar f

rom suit f

or claim s based on the

act i o n s or com m

u nications of those p etitioning the governm ent. Id. at 171 (¶ 32) (“The doctrine thus bars not only the [ parties’] restraint of trade claim s i n this case, but also their claim s f or tortious interf

erence and civil conspiracy .”). W e are m indf ul that “ [ t]he Suprem e Court h as clearly s tated that e f f orts to inf luence public of

f i cials will n ot subject individuals

to liability

. . . .” Id. at 172 (¶ 33) (quoting B ayou Fl e e t , I nc. v . A lexander , 234 F.3d 852,
861-62 (5th Cir. 2000)). See also N.A.A.C.P. v . Claiborne Hardware Co. , 4 58 U.S. 886, 914,
102 S. Ct. 3409, 3426, 73 L. Ed. 2d 1215 (1982) (Suprem e C o u r t overturned Mississippi Suprem e Court’s a ward of dam ages resulting f rom b oy cott activity when “m a jor purpose of the [ cam p aign] in this case was to inf luence governm e ntal a ction”); Bogoslavsky , 626 F.2d

at 614 (“[ W ]e adopt the district court’s holding that the private citizens and their l awy er were absolutely privileged b y the F irst Am endm ent to petition f o r the zoning am endm ent that caused plaintif

f s’ dam ages.”). Theref

o re, the plaintif

f s’ privileges argum ent has no m erit or relevance. ¶68. The Harrah’s Court i ncluded a “sham ” exception to the Noerr-Pennington doctrine:

2 6W e now outline a two-part def inition of “sham ” litigation. First, the l awsuit m ust be objectively baseless in a sense that no reas o n a b l e litigant could realistically expect success on the m erits.

. . . [ S]econd[ , ]

. . . the court should f ocus on whether the baseless lawsuit c onceals “ a n attem pt to interf

ere directly with the busine s s r elationships of a com petitor,” through the “use [ of ] the governm e ntal process—as opposed to the outcom e of the process—as . . . [ a] weapon.”
Harrah’s , 812 So. 2d at 172 (¶ 34) (quoting Prof’l Real Estate Inv’rs v. Colum bia Pictures Indus., Inc. , 508 U.S. 49, 60-61, 113 S. Ct. 1920, 123 L. Ed. 2 d 611 (1993)). J R E and Yacht Club argue that the d e f

endants’ actions were in bad f a i th and without claim of right. But, as the circuit court f

ound, the def

endants’ actions were not s o o b j ectively baseless as to f

all within the sham exception. The am ount of resources and tim e used to ascertain the r ights and

a c c e s s o f dif

f erent p arties t o Nicola Road evidences that the litigation and the action s surrounding it were not a s ham

. Further, as this C o u r t h e l d i n Harrah’s , “a plaintif f , as a

m atter of law, cannot satisf y the f i rst p r o n g of the ‘sham ’ test—that the def endants’ petitioning activities w ere objectively baseless—if those activities were, in f act, s uccessf

ul.”
Harrah’s , 812 So. 2d at 173 (¶ 36) (citing Colum bia Pictures , 508 U.S. at 60 n.5). Because Hancock County

denied a conditional use perm it f or continued developm ent of the project in 2011 as a result of the def endants’ petitions a n d the petitions of other concerned parties

over several y e ars regarding the developm ent, these actions do not m eet the exception. See
Favre I , 52 S o. 3d 463; see also City of Colum bia v. Om ni Outdoor Advert., Inc. , 499 U.S. 365, 380, 111 S. C t. 1344, 1354, 113 L. Ed. 2d 382 (1991) (“The ‘ sham ’ exception to Noerr

encom passes situations i n which p ersons use the governm ental process—as opposed to the

outcom e of

that process—as an anticom p etitive weapon.”)

2 7¶69. Accordingly , regarding Y a c h t C l u b , w e also f i nd the circuit c ourt d id not err by granting partial sum m a ry judgm ent. C. Conclusion ¶70. As this Court observed in Favre III , “the c ircuit c ourt did a skilled job in addressing and apply ing Mississippi law to each individual cause o f action [ pled] by [ p]laintif f s in this
case.” F avre III , 212 S o. 3d at 803 (¶ 6 )

. W e continue to agree. R egarding the claim s on direct appeal, we hold that the court did not err b y g ranting partial sum m ary j u d g ment in
f avor of the def endants and against JRE and Yacht Club.
IV. On cross-appeal, did the circuit court err by f inding that judicial estoppel does not bar t he r em aining claim s by J R E a gainst Scott Favre because J R E failed to include this dam a ges suit in its 2009 bankruptcy filings? ¶71. The def

endants a rgued in the circuit court that JRE s hould be judicially estopped f r om bringing its suit f

or d a m ages because JRE did n ot list tha t p o t e n t i a l d am ages suit in its bankruptcy s chedules in 2 009. The circuit c ourt denied this aspect of the def endants’ m otion
f or sum m ary

judgm ent, reasoning as f ollows: Plaintif f s listed all actions pending at the tim e of bankruptcy f iling in the section listed as “Suits and Adm inistrative Proceedings”; the current suit was not included, as it had y et to be f iled. The [ p]laintif

f s listing of current suits in one section, but f

ailure to repeat in another is m e re inadvertence. ¶72. “As explained above, we review the ci r c u i t court’s a pplication o f j udicial estoppel using the abuse of discretion standard,” but we “ use the [ de novo ] standard to determ ine whether sum m ary judgm ent was o r was not appropriate.” Adam s , 208 So. 3d at 5 80 (¶¶ 12- 13). W e also a cknowledge t hat this Court considers “denial of sum m ary judgm ent [ as] an

2 8interlocutory o r d e r , ” w hich “m ay only be appealed by perm ission.” Ne. Mental Health

Mental Retardation Com m ’n v. Cleveland , 126 S o. 3 d 1 0 2 0, 1024 (¶ 15) (Miss. Ct. App. 2013) (ci t ing Hinds C

ty. v. Perkins , 64 S o. 3d 982, 9 84 (¶ 7 ) (Miss. 2011)). However, the def endants are correct to the extent that judicial estoppel could have applied to those claim s f or which the trial court granted partial sum m ary judgm ent. ¶73. First, it is irrel e v a n t t h a t t h e suit “had y et to be f iled.” “The duty o f 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) (em phasis added) (quoting Y

o u ngblood Grp. v. Lufkin Fed. Sav. & Loan Ass’n , 932 F

. Supp. 859, 867 (E.D. Tex. 1996)). Moreover, “[ t ]he debtor need not k now all the f

acts or even the l egal basis
f or the cause of action; rather, if the debtor has enough inf orm ation

. . . to suggest that it m ay have a possible c ause of action, then that is a ‘known’ cause of action s u c h t hat it m ust be disclosed.” I

d. (em phasis a dded) (internal quotation m arks om itted) (quoting Y oungblood , 932 F. Supp. at 867)). J RE’s knowledge of the p ossible claim s it had against the def endants required JRE to disclose the claim s on its bank r u p t cy schedules, even though JRE had not f iled the dam ages lawsuit. 1 5 ¶74. Second, f

ailure to disclose a claim i n bankruptcy pro c e e d i n g s i m p l i c a t e s judicial estoppel. Id. at 207-08; Kirk , 9 73 So. 2 d at 9 9 1 -92 (¶¶ 31-40) (Miss. 2 007). A party is

15 A s p rev io u sly sh o w n , JR E h ad asserted d am ag es clai ms w h e n it f iled its 2 0 0 8 d eclara t o r y j u d g m en t s u it, an d th at su it w a s listed o n th e b a n k ru p tcy sch ed u les. Favre II , 148 So. 3d. at 364 ( ¶ 2). H o w ev er, th e d am ag es claim s w ere d ism issed w ith o u t p rej u d ice p rio r to JR E ’s f

ilin g f o r b an k r u p tcy ; so th e l istin g o f th e ch an cery co u rt su it d o es n o t m ean JR E d i sclo sed its p o ten tial claim s. 2 9judicially

estopped f

rom taking an inconsistent position in dif f erent judicial proceedings if the f ollowin g three e lem ents a re m et: “‘(1) i ts position is clearly inconsistent with the previous one; (2) the c ourt

. . . accepted the previous position; a n d ( 3 ) the n on-disclosure [ was not] inadvertent.’” Kirk , 973 So. 2d at 9 91 (¶ 32) (quoting Superior Crewboats, Inc. v. Prim a ry P & I Underwriters , 374 F.3d 330, 334 (5th Cir. 2004)). ¶75. As noted above, the c ircuit court f ound t h a t J R E ’ s n o n d i s c l o s u r e w a s “ m ere inadvertence,” which concerns the third elem ent of j udicial estoppel. The problem is that the

court m ade this f

inding at the sum m ary judgm ent stage. W h ether JRE acted inadvertently is

a question of f

act, and the plaintif

f s p resented evidence that JRE m ay not have acted inadvertently . For exam

ple, in the Mississippi Rule of Civil Procedure 30(b)(6) deposition of JRE, a JRE representative testif ied as f ollows: Q. Okay

. And i n 2008 y ou s till believed y ou had dam age claim s worth hundreds of thousands of dollars?
A. I do. Q. In 2009 , y o u ’re speaking f or Jourdan River Estates here, y ou s t ill believed y ou had d am age claim s against them worth hundreds of thousands of

dollars, correct?
A. Correct. ¶76. JRE acknowledged claim s it believed to be “ w o rth hundreds of thousands of dollars,”
y et i t did not d isclose them in the 2009 bankruptcy f ilings ( or in any am ended f i lings later).
“A d ebtor’s non-disclosure is ‘“inadvertent” only w hen, in general, the debtor either l acks knowledge of the undisclosed c laim s or has no m otive f or their concealm ent.’” Kirk , 973 So.

3 02 d at 991 (¶ 35) (quoting Superior Crewboats, Inc. , 374 F.3d at 3 35). Such testim ony is

evidence that JRE—at the least—knew of the claim s at the tim e of

the bankruptcy

f iling. ¶77. “[ D]isputes over f acts that m ight af

f ect the outcom e of the suit under the governing law w ill properly p r eclude the entry of sum m ary j udgm ent.” Sherrod v. U.S. Fid. & Guar.
Co. , 518 S o. 2d 640, 642 (Miss. 1987) (quoting A nderson v. Liberty Lobby , 477 U.S. 242,
24 7

- 2 4 8, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986)). T he d ef endants presented credible e v idence to the trial c ourt to d ispute JRE’s claim that i t a cted inadvertently when it
f ailed to list its potential suit f or dam ages in its bankruptcy f ilings. ¶78. But in accord w ith our precedent that a trial court l acks a ppellate jurisdiction to certif y

a denial of sum m ary judgm ent a s f inal under Mississippi R

ule o f Civil Procedure 54(b), this
Court lacks appellate jurisdiction over these r em aining claim s pending in the trial c ourt. See
Perkins , 6 4 So. 3d at 9 88 (¶ 19) (“W e f ind no com

pelling r eason t o a b a n d o n o ur current practice regarding interlocutory review of pretrial d e n i als

. . . .” (citing M.R.A.P. 5));
Cleveland , 126 So. 3d at 1024 (¶ 15) (“The [ judge’s] grant of partial sum m ary judgm ent did

not decide a claim b etween the two parties. Rather, it m erely d e c i d e d an issue within their claim s . . . . And the denial of sum m ary judgm ent i s an interlocutory o rder that m ay only be appealed by perm ission.” (cit i n g P e r k ins. , 64 So. 3d at 984 (¶ 7))). Absent proper jurisdictio n , w e c annot address the denial of sum m ary judgm ent regarding the claim s

rem aining here. ¶79. Theref

ore, this Court dism isses def endants’ cross-appeal regarding judicial estoppel, and we rem a nd the case to the circuit court f or f urther proceedings.

3 1CONCLUSION

¶80. This Court judicially notices the revocation and reinstatem ent of JRE. But w e f ind that
JRE’s eligibility to bring suit involves capacity , an issue the parties have waived on appeal.
On direct appeal, we af

f irm the circuit court’s r

uling granting partial sum m ary judgm ent in
f avor of the def

e ndants. On cross-appeal, we d ism iss the def endants’ appeal r egarding the circuit court’s ruling that judicial estoppel could not apply to the rem aining claim s, and we

rem and the case f

or f urther proceedings consistent with this decision. ¶81. ON DIRECT APPEAL: AFF I R M E D . O N C R O S S
- A P P E A L : D I S MISSED AND REMANDED. RANDOLPH, C.J., KING , P .J., COLEMAN, MAX WELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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