SRHS V Pinehaven Doc 16

Case: 24CH2:17-cv-00229-CB Document #: 16 Filed: 07/26/2017 Page 1 of 15
IN THE CHANCERY COURT OF HARRISON COUNTY, MISSISSIPPI

SECOND JUDICIAL DISTRICT
SRHS AMBULATORY SERVICE, INC. PLAINTIFF
v. CAUSE NO.: 24CH2:17-cv-00229-CB
PINEHAVEN GROUP, LLC and

FIRST AMERICAN TITLE COMPANY DEFENDANT
ANSWER AND AFFIRMATIVE DEFENSES OF FIRST AMERICAN

TITLE INSURANCE COMPANY TO THE AMENDED COMPLAINT
COMES NOW the Defendant, FIRST AMERICAN TITLE INSURANCE
COMPANY(First American), improperly named herein as First American Title Company, and
files this Answer and Affirmative Defenses to the Amended Complaint [Doc. #11] (the Amended
Complaint) filed by SRHS AMBULATORY SERVICE, INC. ( Plaintiff or SRHS, Inc.) and,
in support thereof, would show unto the Court the following, to-wit:
ANSWER
Without waiving any defenses, but re-affirming and re-alleging the same, and specifically
reserving all benefits and advantages which may be had as a result of any errors, uncertainties,
imperfections and insufficiencies of the Amended Complaint, First American specifically answers
the enumerated and un-enumerated allegations of the Amended Complaint. Unless specifically
admitted herein, the allegations of the Amended Complaint are denied.
AND NOW, answering the Amended Complaint, paragraph by paragraph, First American
states as follows:
The first paragraph of the Amended Complaint, beginning with NOW COMES the
Plaintiff, is introductory in nature and contains no allegations of fact which require a response
from First American.

PARTIES
1. First American is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in Paragraph No. 1 of the Amended Complaint. Therefore,
First American denies the allegations contained in Paragraph No. 1 of the Amended Complaint.
3. First American admits with regard to itself the allegations contained in Paragraph
No. 3 of the Amended Complaint.
JURISDICTION AND VENUE
4. First American admits that this Court has jurisdiction over the parties and the subject
matter of the Amended Complaint as forth in Paragraph No. 4 of said Amended Complaint. First
American is without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations contained in Paragraph No. 4 of the Amended Complaint. Therefore, the
remaining allegations contained in Paragraph No. 4 of the Amended Complaint are denied.
5. First American admits the allegations contained in Paragraph No. 5 of the Amended
Complaint.
FACTS
6. First American admits that on or about December 17, 2007, the Plaintiff received a
deed to certain property located within the Second Judicial District of Harrison County, Mississippi
from Pinehaven Group, LLC. First American is without knowledge or information sufficient to
form a belief as to the truth of the remaining allegations contained in Paragraph No. 6 of the
Amended Complaint. Therefore, First American denies the remaining allegations contained in
Paragraph No. 6 of the Amended Complaint.
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7. First American admits that the Plaintiff is the grantee of the deed attached to the
Amended Complaint and marked Exhibit A as set forth in Paragraph No. 7 of the Amended
Complaint. First American is without knowledge or information sufficient to form a belief as to the
truth of the remaining allegations contained in Paragraph No. 7 of the Amended Complaint.
Therefore, remaining allegations contained in Paragraph No. 7 of the Amended Complaint are
denied.
11. In response to Paragraph No. 11 of the Amended Complaint, First American admits
that the Board of Trustees for the Singing River Health System agreed by Resolution dated October
31, 2007 to provide financial assistance or a grant to SRHS Ambulatory Services, Inc. for the
benefit of the health or welfare of the citizens of the service area in an amount of $3.6 million, plus
closing costs. First American is without knowledge or information sufficient to form a belief as to
the truth of the remaining allegations contained in Paragraph No. 11 of the Amended Complaint.
Therefore, the remaining allegations contained in Paragraph No. 11 of the Amended Complaint are
denied.
3
that its limited policy-issuing agent issued a Policy of Title Insurance with a Date of Policy of
December 18, 2007 to SRHS Ambulatory Services, Inc., according to its terms. First American is
without knowledge or information sufficient to form a belief as to the truth of the remaining
allegations contained in Paragraph No. 15 of the Amended Complaint. Therefore, First American
denies the remaining allegations contained in Paragraph No. 15 of the Amended Complaint.
that its limited policy-issuing agent issued a Policy of Title Insurance to SRHS Ambulatory
Services, Inc. with a Date of Policy of December 18, 2007, according to its terms, a copy of which
4
is attached to the Amended Complaint and marked as Exhibit C. First American is without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
contained in Paragraph No. 18 of the Amended Complaint. Therefore, the remaining allegations
contained in Paragraph No. 18 of the Amended Complaint are denied.
19. In response to Paragraph 19 of the Amended Complaint, First American states that
certain Exclusions from Coverage and Conditions and Stipulations exist within the Policy of Title
Insurance, according to its terms, which was issued by its limited, policy-issuing agent, a copy of
which is attached to the Amended Complaint and marked as Exhibit C. First American is without
contained in Paragraph No. 19 of the Amended Complaint. Therefore, First American denies the
remaining allegations contained in Paragraph No. 19 of the Amended Complaint.
COUNT I
THE ATTEMPTED PURCHASE AND ATTEMPTED SALE

OF THE SUBJECT PROPERTY IS VOID, OR IN THE
ALTERNATIVE VOIDABLE, BECAUSE THE SALE WAS
NOT RATIFIED BY THE BOARD OF SUPERVISORS OF
JACKSON COUNTY, MISSISSIPPI AND IT WAS NOT IN
COMPLIANCE WITH MISS. CODE ANN43-37-3
20. In response to Paragraph No. 20 of the Amended Complaint, First American re-
incorporates and re-alleges its responses to the preceding paragraphs.
21. In response to Paragraph No. 21 of the Amended Complaint, First American states
that the Mississippi Code sections as they existed in 2007, which are referenced by the Plaintiff
speak for themselves. First American is without knowledge or information sufficient to form a
belief as to the truth of the remaining allegations contained in Paragraph No. 21 of the Amended
Complaint. Therefore, the remaining allegations contained in Paragraph No. 21 of the Amended
Complaint are denied.
5
6
COUNT II
NEGLIGENCE
COUNT III
FIRST AMERICAN TITLE INSURANCE COMPANY
that its limited policy-issuing agent issued a Policy of Title Insurance to SRHS Ambulatory
Services, Inc. with a Date of Policy of December 18, 2007, according to its terms, a copy of which
is attached to the Amended Complaint and marked as Exhibit C. First American is without
7
contained in Paragraph No. 36 of the Amended Complaint. Therefore, First American denies the
remaining allegations contained in Paragraph No. 36 of the Amended Complaint.
37. First American denies the allegations contained in Paragraph No. 37 of the Amended
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
that it exchanged letters with counsel for the Plaintiff regarding coverage under the Policy of Title
Insurance, which is attached to the Amended Complaint and marked as Exhibit C. First American
denies the remaining allegations contained in Paragraph No. 42 of the Amended Complaint.
Complaint.
COUNT IV
DISGORGEMENT
8
COUNT V
DAMAGES
Complaint.
Complaint.
Responding to the unnumbered paragraph beginning on Page 10 of the Amended Complaint
beginning with the phrase WHEREFORE, PREMISES CONSIDERED, and the following sub-
paragraphs thereunder, First American denies the allegations contained therein and specifically
denies that the Plaintiff is entitled to any relief whatsoever from First American.
And now having fully answered the Amended Complaint, First American hereby requests
that the Court enter a judgment in its favor and dismiss the Amended Complaint against it and
award First Americans its costs, attorneys fees and such other further relief as the Court finds
proper.
9
AFFIRMATIVE DEFENSES
Without assuming the burden of proof as to any matter on which the Plaintiff bears the
burden, First American hereby alleges the following affirmative defenses.
FIRST DEFENSE
Plaintiffs allegations fail to state a claim upon which relief may be granted.
SECOND DEFENSE
Some or all of Plaintiffs claims are barred by the doctrine of laches.
THIRD DEFENSE
Some or all of the Plaintiffs claims are barred by estoppel.
FOURTH DEFENSE
Some or all of the Plaintiffs claims are barred by fraud.
FIFTH DEFENSE
Some or all of the Plaintiffs claims are barred by statute of limitations.
SIXTH DEFENSE
To the extent Plaintiff has suffered any damages, such damages were caused by, and are the
responsibility of persons, parties, and/or entities other than First American.
SEVENTH DEFENSE
First American denies that any of Plaintiffs alleged damages were proximately caused by
First American.
EIGHTH DEFENSE
Plaintiff has failed to mitigate its damages.
NINTH DEFENSE
To the extent the Plaintiff is seeking punitive damages, First American affirmatively pleads
the limits on punitive damages set forth in MISS CODE ANN. 11-1-65(3)(a)(Rev. 2003), and
10
those set forth in State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155
L.Ed.2d 585 (2003) and BMW of North America, Inc. v. Gore, 517 U.S. 599, 116 S. Ct. 1589, 134
L.Ed.2d 809 (1966).
TENTH DEFENSE
To the extent the Plaintiff is seeking punitive damages, the granting of any award for
punitive damages would violate First Americans constitutional rights under the United States
Constitution (the Federal Constitution) and the Constitution of the State of Mississippi (the State
Constitution), including, but not limited to, the following:
(a) The Due Process Clause of the Fourteenth Amendment of the Federal Constitution;
(b) The Double Jeopardy Clause of the Fifth Amendment as applied to the Fourteenth
Amendment to the Federal Constitution;
(c) The Due Process Clause of Article III, 14 of the State Constitution;
(d) The prohibition against twice being placed in jeopardy for the same offense provided
by Article III, 22 of the State Constitution;
(e) The procedural safeguards provided by the Sixth Amendment of the Federal
Constitution for alleged penal conduct, including, but not limited to, permitting imposition of
punitive damages with a burden of proof less than beyond a reasonable doubt;
(f) The procedural safeguards provided by Article III, 26 of the State Constitution for
alleged penal conduct, including, but not limited to, permitting imposition of punitive damages with
a burden of proof less than beyond a reasonable doubt;
(g) The Contract Clause of Article I, 10 of the Federal Constitution;
(h) The Contract Clause of Article III, 16 of the State Constitution;
(i) The Self-Incrimination Clause of the Fifth Amendment of the Federal Constitution;
(j) The Self-Incrimination Clause of Article III, 26 of the State Constitution;
11
(k) The Equal Protection Clause of the Fourteenth Amendment of the Federal
Constitution; and
(l) The award of punitive damages bears no proportional or rational relationship to any
actual damages or to the type of conduct involved and violates both the Federal Constitution and
State Constitution.
ELEVENTH DEFENSE
Plaintiffs damages, if any, were caused by its own acts or omissions.
TWELFTH DEFENSE
First Americans denial of coverage under the Policy of Title Insurance was for legitimate
and arguable reasons.
THIRTEENTH DEFENSE
Plaintiffs claims against First American and others are subject to the terms and conditions
of the underlying transaction, including the Policy of Title Insurance, and all other defenses
available to First American thereunder.
FOURTEENTH DEFENSE
Some or all of the Plaintiffs claims may be barred by the statute of frauds and/or the parol
evidence rule.
FIFTEENTH DEFENSE
Some or all of the Plaintiffs claims may be barred by the doctrines of waiver, release and
payment.
SIXTEENTH DEFENSE
Plaintiff has failed to join necessary parties in this action.
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SEVENTEENTH DEFENSE
First American asserts its good faith compliance with all applicable contracts, rules,
regulations, statutes and laws.
EIGHTEENTH DEFENSE
Some or all of Plaintiffs claims against First American are barred, in whole or in part by the
doctrines of comparative fault and/or comparative negligence. Thus, if First American was
negligent in any manner, which is expressly denied, Plaintiff and/or third-parties are also negligent,
and First American is entitled to have comparative fault of the parties apportioned in accordance
with Miss. Code Ann. 85-5-7.
NINETEENTH DEFENSE
The sole and contributing causes of the instance complained of in the Amended Complaint
are the result of the Plaintiffs own conduct or the conduct of others, over whom First American has
no authority or control.
TWENTIETH DEFENSE
Any damages suffered by the Plaintiff were caused by persons not within the authority,
control or agency of First American.
TWENTY-FIRST DEFENSE
Some or all of Plaintiffs claims may be barred by the doctrine of assumption of risk.
TWENTY-SECOND DEFENSE
The Plaintiff is a Mississippi non-profit corporation and subject to the Mississippi Non-
Profit Corporation Act.
TWENTY-THIRD DEFENSE
Some or all of Plaintiffs claims are barred by the doctrine of unclean hands.
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TWENTY-FOURTH DEFENSE
Some or all of the Plaintiffs claims are barred by the specific provisions, terms and
conditions of the Policy of Title Insurance and the Exclusions From Coverage and Exceptions set
forth therein.
TWENTY-FIFTH DEFENSE
First American reserves the right to assert any additional affirmative defenses which may be
discovered during the course of additional investigation and discovery.
AND NOW, having fully answered the Amended Complaint and having raised its
affirmative defenses, First American hereby requests that this Court enter a judgment in its favor,
and dismiss the Amended Complaint against it with prejudice, and award First American its costs,
attorneys fees, and such other relief as the Court finds proper in the premises.
THIS, the 26th day of July, 2017.
Respectfully submitted,
FIRST AMERICAN TITLE INSURANCE

COMPANY
By: s/ G. Dewey Hembree, III

One of its Attorneys
OF COUNSEL:
G. Dewey Hembree, III (MSB No. 2247)

McGLINCHEY STAFFORD, PLLC
City Centre South, Suite 1100
200 South Lamar Street (Zip - 39201)
Post Office Drawer 22949
Jackson, Mississippi 39225-2949
Telephone: (769) 524-2300
Facsimile: (769) 524-2331
Email: ghembree@mcglinchey.com
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CERTIFICATE OF SERVICE
I do hereby certify that I have this day electronically filed the foregoing with the Clerk of
the Court using the ECF system, which sent notification of such filing to the following:
H. D. Brock - hdb@whittingtonlaw.com
Patrick R. Buchanan - mailb@brownbuchanan.com, chl@brownbuchanan.com,

skg@brownbuchanan.com, ss@brownbuchanan.com
and I hereby certify that I have mailed by United States Postal Service the document to the
following non-ECF system participants:
NONE
This, the 26th day of July, 2017.
s/G. Dewey Hembree, III

Of Counsel
307325.3
15

SRHS V Pinehaven Doc 16

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Case: 24CH2:17-cv-00229-CB Document #: 16 Filed: 07/26/2017 Page 1 of 15

IN THE CHANCERY COURT OF HARRISON COUNTY, MISSISSIPPI

SRHS AMBULATORY SERVICE, INC. PLAINTIFF

v. CAUSE NO.: 24CH2:17-cv-00229-CB

PINEHAVEN GROUP, LLC and

ANSWER AND AFFIRMATIVE DEFENSES OF FIRST AMERICAN

COMES NOW the Defendant, FIRST AMERICAN TITLE INSURANCE

admitted herein, the allegations of the Amended Complaint are denied.

from First American.

1. First American is without knowledge or information sufficient to form a belief as to

2. First American is without knowledge or information sufficient to form a belief as to

No. 3 of the Amended Complaint.

JURISDICTION AND VENUE

Paragraph No. 6 of the Amended Complaint.

8. First American is without knowledge or information sufficient to form a belief as to

9. First American is without knowledge or information sufficient to form a belief as to

10. First American is without knowledge or information sufficient to form a belief as to

12. First American is without knowledge or information sufficient to form a belief as to

13. First American is without knowledge or information sufficient to form a belief as to

14. First American is without knowledge or information sufficient to form a belief as to

16. First American is without knowledge or information sufficient to form a belief as to

17. First American is without knowledge or information sufficient to form a belief as to

contained in Paragraph No. 18 of the Amended Complaint are denied.

remaining allegations contained in Paragraph No. 19 of the Amended Complaint.

THE ATTEMPTED PURCHASE AND ATTEMPTED SALE

incorporates and re-alleges its responses to the preceding paragraphs.

Complaint are denied.

22. First American is without knowledge or information sufficient to form a belief as to

23. First American is without knowledge or information sufficient to form a belief as to

24. First American is without knowledge or information sufficient to form a belief as to

25. First American is without knowledge or information sufficient to form a belief as to

26. First American is without knowledge or information sufficient to form a belief as to

27. First American is without knowledge or information sufficient to form a belief as to

28. First American is without knowledge or information sufficient to form a belief as to

29. First American is without knowledge or information sufficient to form a belief as to

30. First American is without knowledge or information sufficient to form a belief as to

incorporates and re-alleges its responses to the preceding paragraphs.

32. First American is without knowledge or information sufficient to form a belief as to

33. First American is without knowledge or information sufficient to form a belief as to

34. First American is without knowledge or information sufficient to form a belief as to

FIRST AMERICAN TITLE INSURANCE COMPANY

incorporates and re-alleges its responses to the preceding paragraphs.

remaining allegations contained in Paragraph No. 36 of the Amended Complaint.

incorporates and re-alleges its responses to the preceding paragraphs.

45. First American is without knowledge or information sufficient to form a belief as to

incorporates and re-alleges its responses to the preceding paragraphs.

47. First American is without knowledge or information sufficient to form a belief as to

Responding to the unnumbered paragraph beginning on Page 10 of the Amended Complaint

burden, First American hereby alleges the following affirmative defenses.

Some or all of Plaintiffs claims are barred by the doctrine of laches.

Some or all of the Plaintiffs claims are barred by estoppel.

Some or all of the Plaintiffs claims are barred by fraud.

Some or all of the Plaintiffs claims are barred by statute of limitations.

responsibility of persons, parties, and/or entities other than First American.

Plaintiff has failed to mitigate its damages.

L.Ed.2d 809 (1966).

Constitution), including, but not limited to, the following:

Amendment to the Federal Constitution;

by Article III, 22 of the State Constitution;

a burden of proof less than beyond a reasonable doubt;

(g) The Contract Clause of Article I, 10 of the Federal Constitution;

(h) The Contract Clause of Article III, 16 of the State Constitution;

(j) The Self-Incrimination Clause of Article III, 26 of the State Constitution;