Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

NICHOLAS COUGHLIN PLAINTIFF

VS. CIVIL ACTION NO. 3:06CV288-HTW-JCS

FRANKLINSQUIRES COMPANIES, LLC;

HILL ERICKSON, LLC AND C. RICK KOERBER and
LEXINGTON INSURANCE COMPANY d/b/a
LEXINGTON AIG DEFENDANTS

ANSWER AND DEFENSES TO AMENDED COMPLAINT

COME NOW Defendants FranklinSquires Companies, LLC, Hill Erickson, LLC and C. Rick

Koerber (hereinafter sometimes collectively referred to as the “Defendants”), by counsel, and file

this their Answer and Defenses in response to the Amended Complaint of Plaintiff Nicholas

Coughlin (hereinafter “Coughlin”), and in support thereof state the following:

FIRST DEFENSE

Pursuant to F.R.C.P. 12(b)(6), the Amended Complaint of Coughlin fails to state a claim

upon which relief can be granted against the Defendants.

SECOND DEFENSE

Coughlin has failed to join a necessary or indispensable party, or necessary or indispensable

parties, or a party or parties needed for a just adjudication, and Coughlin should be required to join

said party or parties pursuant to F.R.C.P. 17 and 19.

THIRD DEFENSE

Coughlin has failed to plead fraud with the particularity required by F.R.C.P. 9 (b).

FOURTH DEFENSE

AND NOW, without waiving the above and foregoing defenses, the Defendants answer the
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 2 of 9

Amended Complaint of Coughlin, paragraph by paragraph, as follows:

I. PARTIES

1. On information and belief, admitted.

2. Denied.

3. Admitted.

4. Defendants admit that C. Rick Koerber is an adult resident citizen of Utah. The

remaining allegations of paragraph 4 of the Amended Complaint are denied.

5. Denied.

6. Denied.

7. On information and belief, the Defendants admit the allegations in paragraph 7 of the

Amended Complaint but deny Lexington Insurance Company is a proper party to this action.

8. The Defendants admit this Court has jurisdiction over the parties and subject matter

of this action. The remaining allegations of paragraph 8 of the Amended Complaint are denied.

II. FACTUAL BACKGROUND

9. Denied.

10. Denied.

11. Denied.

12. Denied.

13. Denied.

14. Denied.

15. Denied.

16. Denied.

-2-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 3 of 9

17. The Defendants are without sufficient knowledge or information to form a belief as

to the truth of the allegations in paragraph 17 of the Amended Complaint and therefor deny such

allegations. On information and belief, Coughlin’s partner, Brian Cronin, contacted Mr.Jeffrey H.

Brantley and unsuccessfully attempted to negotiate the purchase of a home owned by Mr. Brantley

and his wife, Ashley C. Brantley, located at #2 St. Charles Place, Clinton, MS (“Brantley Property”).

18. Denied.

19. Denied.

20. The Defendants admit Hill Erickson, LLC purchased the Brantley

Property on or about March 31, 2006.The remaining allegations of paragraph 20 of the Amended

Complaint are denied.

21. The Defendants admit that Hill Erickson, LLC purchased the Brantley Property for

approximately $3,750,000.00. The remaining allegations of paragraph 21 of the Amended Complaint

are denied.

22. Denied.

23. Denied.

24. Denied.

25. Denied.

26. Admitted.

III. BREACH OF CONTRACT

27. Denied.

28. Denied.

-3-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 4 of 9

IV. DETRIMENTAL RELIANCE

29. Denied.

30. Denied.

31. Denied.

32. Denied.

33. Denied.

34. Denied.

V. UNJUST ENRICHMENT

35. Denied.

36. Denied.

VI. FRAUD

37. Denied.

38. Denied.

39. Defendants admit they have not paid any fee to Coughlin but deny Defendants owe

a fee and/or any other compensation to Coughlin in relation to the Brantley Property or otherwise.

The remaining allegations of paragraph 39 of the Amended Complaint are denied.

40. Denied.

41. Denied.

42. Denied.

43. Denied.

VII. CONSTRUCTIVE OR EQUITABLE TRUST

44. Defendants admit Coughlin wrongfully filed a Lis Pendens against the Brantley

-4-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 5 of 9

Property but deny Coughlin “has” and/or otherwise was entitled to file such Lis Pendens.

45. Denied.

In response to the unnumbered paragraph following paragraph 45 of the Amended Complaint

beginning with the words “WHEREFORE PREMISES CONSIDERED” the Defendants deny

Plaintiff is entitled to the relief prayed for or any relief whatsoever.

AND NOW, after having answered the Amended Complaint, paragraph by paragraph, and

having denied all liability in the premises, the Defendants further set forth the following affirmative

defenses:

FIFTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by Miss. Code Ann. §73-35-33 (1972, as

amended).

SIXTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by the doctrines of waiver, estoppel, laches,

ratification and/or election.

SEVENTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by the principle of receipt and release.

EIGHTH DEFENSE

As a matter of fact and of law, Plaintiff has no claim against the Defendants.

NINTH DEFENSE

Defendants aver that any award of punitive damages to Plaintiff in this case would be in

violation of the constitutional rights and safeguards provided to the Defendants under the

Constitution of the State of Mississippi and the Constitution of the United States of America

-5-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 6 of 9

including, without limitation, that there are no constraining limitations placed on a jury'
s discretion

in considering the imposition or amount of punitive damages, there are no meaningful trial court and

appellate review mechanisms to constitutionally confirm any punitive damage award, imposition

would allow a verdict tainted by passion and prejudice, and Plaintiff impermissibly seeks a punitive

damage award that bears an unconstitutional relationship to the alleged actual amount in question.

TENTH DEFENSE

Imposition of punitive damages in this case would constitute a violation of Defendants’

constitutional rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution.

ELEVENTH DEFENSE

Any award of punitive damages in this case would violate the constitutional rights and

safeguards provided to the Defendants under the Due Process Clause of the Fourteenth Amendment

and/or Fifth Amendment to the Constitution of the United States of American and/or under the Due

Process Clause of Article III, Section 14 of the Constitution of the State of Mississippi in that

punitive damages and any method of which they might be assessed are unconstitutionally vague and

not rationally related to legitimate government interests.

TWELFTH DEFENSE

The procedure and/or standards governing imposition of punitive damages are impermissibly

vague, arbitrary, improper and/or violate the Due Process Clause of the Fourteenth Amendment

and/or the Fifth Amendment of the Constitution of the United States and/or Article III, Section 14

of the Constitution of the State of Mississippi.

-6-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 7 of 9

THIRTEENTH DEFENSE

Any award of punitive damages in this case would violate the procedural and/or substandard

safeguards provided to the Defendants under the Fifth, Sixth, Eight and/or Fourteenth Amendments

to the Constitution of the United States and/or under Article III, Section 14 and 26 of the

Constitution of the State of Mississippi, in that punitive damages are penal in nature and,

consequently, the Defendants are entitled to the same procedural and substandard safeguards

accorded to criminal defendants.

FOURTEENTH DEFENSE

Plaintiff has failed to mitigate any of Plaintiffs alleged damages.

FIFTEENTH DEFENSE

Plaintiff’s alleged contract with Defendants fails for lack of definiteness and/or

consideration.

SIXTEENTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by the statute of frauds.

SEVENTEENTH DEFENSE

The Defendants need investigation and discovery to determine the extent of the defenses

and the extent of its affirmative claims, if any, and Defendants hereby reserve all defenses to be

set forth in amended pleadings, and all claims to be set forth in amended pleadings, pending

investigation and discovery.

AND NOW, after having fully answered the Amended Complaint and having denied all

liability in the premises, the Defendants pray that the Amended Complaint will be dismissed with

prejudice, with all costs assessed against Coughlin.

-7-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 8 of 9

Respectfully submitted this the 2nd day of November, 2006.

FRANKLIN SQUIRES COMPANIES, LLC; HILL

ERICKSON, LLC AND C. RICK KOERBER

BY: s/Eddie J. Abdeen (MSB#9321)

ONE OF THEIR ATTORNEYS

ATTORNEYS FOR DEFENDANTS

FRANKLIN SQUIRES COMPANIES, LLC;
HILL ERICKSON, LLC AND C. RICK KOERBER:

EDDIE J. ABDEEN, ESQ. (MSB #9321)

Attorney at Law
Post Office Box 2134
Madison, Mississippi 39130
Telephone: 601-607-4750
Facsimile: 601-427-0040

R. PAUL RANDALL, JR., ESQ. (MSB # 99960)

Willoughby, McCraney & Randall, PLLC
451 Northpark Drive, Suite A
Ridgeland, Mississippi 39157
Telephone: 601-956-2615
Facsimile: 601-956-2642

-8-
 Case 3:06-cv-00288-HTW-LRA Document 34 Filed 11/02/2006 Page 9 of 9

CERTIFICATE OF SERVICE

I hereby certify that on November 2, 2006, I electronically filed the foregoing with the

Clerk of the Court using the ECF System which sent notification of such filing to the following:

Xavier M. Frascona, Jr.

J. Fredrick Ahrend
Matthew Hetzel
FRASCOGNA COURTNEY, PLLC
P. O. Box 23126
Jackson, MS 39225

s/Eddie J. Abdeen

-9-