ELECTRONICALLY FILED - 2018 May 31 3:26 PM - HORRY - COMMON PLEAS - CASE#2018CP2602576

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

)
COUNTY OF HORRY ) FIFTEENTH JUDICIAL CIRCUIT
)
Nathan’s South Carolina, Inc., ) C/A No. 18-CP-26-2576
)
Plaintiffs, )
) ANSWER AND COUNTERCLAIMS OF
vs. ) DEFENDANT CCMF, LLC A DELAWARE
) LIMITED LIABILTY COMPANY
CCMF, LLC, a Delaware limited liability )
company; Robert B. Durkin, d/b/a Full House ) (JURY TRIAL DEMANDED)
Productions; and the City of Myrtle Beach, )
)
Defendants. )
TO: MICHAEL BARNETT, ESQUIRE, ATTORNEY FOR PLAINTIFF:

FOR A FIRST DEFENSE

NOW COMES THE DEFENDANT CCMF, LLC, a Delaware limited liability company

(hereinafter referred to as “Defendant CCMF”) by and through their attorney, Thomas C. Brittain,

and hereby answers the Complaint and alleges by way of a Counterclaim as follows:

1. The Defendant CCMF answering the Complaint of the Plaintiff would respectfully

show unto the Court, that each and every allegation not specifically admitted herein is expressly

denied, with strict proof required thereof, to the extent that it is appropriate in these pleadings.

2. That the allegations of Paragraph 2, upon information and belief, are beyond the

knowledge of Defendant CCMF, save Carolina Country Music Festival, which is improperly

referred to in this Paragraph and Defendant CCMF craves reference to its corporate papers and the

organizational documents of CCMF, LLC an accurate recitation of its business status.

3. That the allegations of Paragraph 3 are poorly stated in that Defendant CCMF has,

for the benefit of the citizens of Myrtle Beach and other country music fans, in conjunction with

the Myrtle Beach Chamber of Commerce and City of Myrtle Beach provided upscale country

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music entertainment and all that is associated therewith as a business enterprise all to the benefit

of this Plaintiff and others throughout the Southeastern United States.

4. That the allegations of Paragraph 4 are denied insofar as allegations of severe

restrictions.

5. That the allegations of Paragraph 5 are, upon information and belief, admitted.

6. That, with respect to the allegations of Paragraph 6, the City has made a

determination that the “festival” is a great benefit for the merchant citizens of Myrtle Beach

including the Plaintiff and that, in accordance with their powers and duties to the citizenry of

Myrtle Beach including the Plaintiff, the City has made provisions for safety and reasonable access

to all vendors, attendees and participants including the Plaintiff all within the normal scope of their

responsibilities, duties and lawful administration of the City of Myrtle Beach.

7. That the allegations of Paragraph 7 are denied with strict proof required thereof.

8. That the allegations of Paragraph 8 are denied with strict proof required thereof.

9. That the allegations of Paragraph 9 are inaccurately plead with respect to Defendant

CCMF and are denied with strict proof required thereof.

10. That the allegations of Paragraph 10 are inaccurately set forth with respect to

Defendant CCMF, do not apply to Defendant CCMF, and are specifically denied as an application

to other Defendants to this action.

11. That the allegations of Paragraph 11 are specifically denied, further, that Plaintiff

enjoys a robust increase in business based on circumstances set forth herein.

12. That the allegations of Paragraph 12 are denied with strict proof required thereof.

13. That the allegations of Paragraph 13 are denied insomuch as Defendant CCMF is

required to know anything about the Plaintiff’s business, further, that the great proximity of the

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Plaintiff to this festival is a benefit and not a detraction under any circumstances; strict proof

required as to the allegations of Paragraph 13.

14. That the allegations of Paragraph 14 do not apply to Defendant CCMF and are

expressly denied insofar as they apply to any Defendants and all of the other Defendants to this

action.

15. That the allegations of Paragraph 15 are denied with strict proof required thereof.

16. That the allegations of Paragraph 16 are denied with strict proof required thereof.

17. That the allegations of Paragraph 17 are denied with strict proof required thereof.

18. That the allegations of Paragraph 18 are denied with strict proof required thereof.

19. That the allegations of Paragraph 19 are denied with strict proof required thereof.

20. That the allegations of Paragraph 20 are improperly stated; the Defendant craves

reference to the agreement and all of its terms for consideration by the trial court and jury.

21. That the allegations of Paragraph 21 are beyond the knowledge of Defendant

CCMF; strict proof required thereof.

22. That the allegations of Paragraph 22 are improperly stated insofar as they imply

any impropriety or unfairness with respect to the agreement existing between Plaintiff and

Defendant CCMF.

23. That the allegations of Paragraph 23 are beyond the knowledge of Defendant

CCMF, further, that any equipment failures were fairly and properly remediated. That, as to the

allegations with respect to the computation of any sales figures, Defendant CCMF craves reference

to the agreement and alleges there has been no breach by Defendant CCMF of any contract under

any circumstances, these particulars included. That any allegations of inadequate sales receipts

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have either been remedied or did not occur; strict proof required as to the allegations of Paragraph

23.

24. That the allegations of Paragraph 24 are denied with strict proof required thereof.

Further, any and all claim for damages is strongly denied.

25. That, as to the allegations of Paragraphs 25 and 26, Plaintiff fails to state a cause of

action against Defendant CCMF, therefore, motion to dismiss with respect to the Fifth Cause of

Action against Defendant CCMF is contained herein; further, that the allegations of Paragraph 26

are denied with strict proof required thereof.

26. That the allegations of Paragraphs 27, 28 and 29 are specifically denied, further,

that any and all of the elements required in a pleading of this sort are not present, that it is defective

on its face as Defendant CCMF files for dismissal of the Sixth Cause of Action under Rule 12(b)(6)

SCRCP; further, that each and every allegation contained in Paragraphs 27, 28 and 29 and of the

prayer 1, 2, 3, 4 specifically, denied with strict proof required thereof.

FOR A SECOND DEFENSE

27. Defendant CCMF asserts Plaintiff’s Complaint fails to state facts sufficient to

constitute a cause of action and/or a claim upon which relief can be granted against Defendant

CCMF, and, therefore, should be dismissed pursuant to Rule 12(b)(6) of the South Carolina Rules

of Civil Procedure.

FOR A THIRD DEFENSE

(Contributory Negligence)

28. Defendant CCMF asserts that any recovery by Plaintiff must be offset or reduced,

abated, or apportioned to the extent that any other party’s actions caused or contributed to the

alleged damages, if any existed.

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FOR A FOURTH DEFENSE AND BY WAY OF A COUNTERCLAIM

29. That each and every allegation set forth hereinabove, throughout both the Answer

to the Complaint and as part of a factual basis for this Counterclaim is hereby reiterated as if set

forth herein.

30. That Plaintiff has improperly inflated any claims of loss in connection with the

contract between Plaintiff and Defendant CCMF.

31. That the contract includes, as a matter of course, an obligation for fair and honest

dealing in connection one with the other.

32. That Plaintiff has failed to comply with this term of the contract among others.

33. Further, that such failure to comply has been accompanied by an ill purpose which

has resulted in false claims and the filing of a lawsuit.

FOR A FIFTH DEFENSE AND BY WAY OF A COUNTERCLAIM

(Breach of Contract)

34. That each and every allegation set forth hereinabove, throughout both the Answer

to the Complaint and as part of a factual basis for this Counterclaim is hereby reiterated as if set

forth herein.

35. That the Plaintiff is in breach of the contract by its conduct, its false claims and its

calculations of “entitlements” none of which is consistent with its obligations under the good faith

and fair dealing required by contract and violates both the spirit and the letter of its contractual

obligations to Defendant CCMF.

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FOR A FIFTH DEFENSE AND BY WAY OF A COUNTERCLAIM
(Breach of Contract Accompanied by a Fraudulent Act)

36. That each and every allegation set forth hereinabove, throughout both the Answer

to the Complaint and as part of a factual basis for this Counterclaim is hereby reiterated as if set

forth herein.

37. That the breach referred to in the breach of contract counterclaim has been

accompanied by a fraudulent act in terms of inflating the claims of loss, this construing Defendant

CCMF’s obligation to the Plaintiff, Defendant CCMF’s authority with respect to certain actions

as alleged in the Complaint.

38. That the breach of contract of good faith and fair dealing has been accompanied by

inaccurate calculations, illegal claims, all with the intention of accumulating sums of money from

Defendant CCMF when none are due and payable.

WHEREFORE, Defendant CCMF prays the court dismiss all causes of action pertaining

to this Defendant, that judgment be entered in their favor of Defendant CCMF’s Counterclaims,

actual and treble damages as well as punitive damages be awarded to Defendant CCMF, and this

Court grant such other and further relief as this Court deems just and proper.

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THE BRITTAIN LAW FIRM, P.A.

s/Thomas C. Brittain
Thomas C. Brittain, Esq.
SC Bar # 00893
A. Preston Brittain, Esq.
SC Bar #73707
4614 Oleander Drive
Myrtle Beach, South Carolina
843-449-8562 (0)
843-449-6148 (F)
Counsel for Defendant CCMF, LLC, a Delaware
limited liability company

Myrtle Beach, South Carolina

May 31, 2018