STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS COUNTY OF GREENVILLE THIRTEENTH JUDICIAL CIRCUIT Bonnie U. Pittman, individually and as C.A. NO: 2016-CP-23-00945 Trustee of the Dorothy F. King Living Trust, Plaintiff, ANSWER, COUNTERCLAIM, AND THIRD-PARTY COMPLAINT v. Accents Unlimited, Inc. d/b/a The Galleries Of Brian Brigham, Defendant, Third-party Plaintiff, v. Karen Mower, Third-Party Defendant, COMES NOW Defendant, Accents Unlimited, Inc. d/b/a The Galleries of Brian Brigham ( Accents, and files this its Answer, Counterclaim, and Third-party Complaint. Any allegation contained in the Complaint not hereinafter expressly admitted or denied is hereby denied. 1. Responding to paragraph 1, Accents admits that it conducts estate sales and that it conducted an estate sale on behalf of the Plaintiff. The remaining allegations are denied. 2. Paragraphs 2-4 are admitted upon information and belief. 3. Paragraphs 5-10 are admitted. 4. Responding to paragraphs 11-14, Accents is without sufficient information to form a belief as to the allegations contained therein except for so much as alleges that the Plaintiff contacted Accents to conduct an estate sale of certain personal property.
5. Responding to paragraph 15, Accents admits that at least someone representing Accents would have met with the Plaintiff. The remaining allegations are denied and strict proof of such statements is demanded. 6. Responding to paragraph 16, Accents admits that Plaintiff entered into a contract. The remaining allegations are denied. 7. Responding to paragraph 17, Accents denies all allegations as drafted by Plaintiff s counsel, and craves reference to the quoted document. 8. Paragraphs 18 and 19 are admitted. 9. Paragraphs 20-28 are denied and strict proof is demanded. 10. Paragraph 30 is denied. 11. Paragraphs 32 and 33 are admitted. 12. Paragraphs 34-37 are denied. 13. Paragraphs 39-43 are denied. 14. Paragraphs 45-54 are denied, and strict proof is required and demanded thereof. 15. Paragraphs 56-60 are denied, except insofar as Accents is engaged in trade or commerce. FOR A FIRST AFFIRMATIVE DEFENSE 16. Plaintiff has failed to state a claim upon which relief may be granted, and Defendant hereby moves to dismiss the Complaint upon Rule 12(b6, SCRCP. FOR A SECOND AFFIRMATIVE DEFENSE 17. Plaintiff s claims are barred by the doctrine of estoppel. FOR A THIRD AFFIRMATIVE DEFENSE 18. Plaintiff s claims are barred by the doctrine of waiver. FOR A FOURTH AFFIRMATIVE DEFENSE
19. Plaintiff s claims are barred by the doctrine of unclean hands. FOR A FIFTH AFFIRMATIVE DEFENSE 20. Plaintiff s claims are barred by accord and satisfaction. FOR A SIXTH AFFIRMATIVE DEFENSE AND BY WAY OF COUNTERCLAIM (Breach of Contract as to Plaintiff 21. The foregoing allegations are incorporated herein as if fully restated. 22. Under the terms of the parties Agreement, Plaintiff was prohibited from taking any of the estate property to be sold after the contract was entered into. 23. Plaintiff did, in fact, after executing the contract with Accents, and well after Accents was underway in preparing for the sale, take numerous and valuable items out of the sale in breach of the contract. 24. Accents was damaged by said breach in that such items were contractually obligated to remain, which would have generated revenues from which Accents would have been paid. 25. As a direct and proximate result of said breach, Accents has been damaged and is entitled to recover such damages as may be proven at trial. FOR A SEVENTH AFFIRMATIVE DEFENSE AND BY WAY OF THIRD-PARTY COMPLAINT 26. The foregoing allegations are incorporated herein as if fully restated. 27. Upon information and belief, Karen Mower ( Mower is a citizen and resident of Greenville County, and venue and jurisdiction are proper. 28. At all times pertinent to this action, Mower was employed by Accents as an Ebay specialist, which included, in part, listing for sale and consummating sales of certain items from estate sales.
29. With regard to the Plaintiff s estate sale, certain items were separated from the on-site estate sale due to Accents independent judgment that online sales could fetch a better sales price. This practice was part of Accents normal contract, and it was included in Plaintiff s contract, which is undisputed. 30. Ebay sales are conducted differently than estate sales. Estate sales take place on certain and limited days, while the Ebay sales remain open at the discretion of Accents until sold or otherwise determined to be pulled from sale. Ebay sales are also not included in estate sale reconciliation statements because those statements include ONLY those items sold on location. 31. The on-location estate sales are itemized only generally and include the sales price received. In many sales, as in this case, an estate will have multiple items of the same general type. Inventory of every specific item is never undertaken in these sales. The items are merely priced and sold with a general ledger of what is sold (e.g. an entry will be marked clothes, or purse. 32. Mower never had any role whatsoever in any business practices of accents except to list and sell items on Ebay and to direct the sales funds into Accents PayPal account, from which accents ultimately distributes net proceeds to clients after sales are concluded. 33. At some point during the online listings, Brian Lehman found out that Mower had diverted funds from Ebay sales to her own PayPal account. Mrs. Lehman immediately brought it to Mower s attention and inquired why Mower was taking funds into her personal PayPal account. Claiming mistake, Mower quickly produced cash; however, upon further investigation, Mrs. Lehman discovered that such accidental account posting was not possible, and that her diversion of funds was purposeful.
34. Further, Mower is an Ebay specialist and specifically touts herself as a highly experienced Ebay seller. She is exceptionally well versed in how to conduct transactions online. 35. Sometime after Mrs. Lehman s discovery of Mower s diverting funds to her own PayPal account, and in an effort to avoid adverse consequences or further investigation of her PayPal account and use thereof, Mower surreptitiously started to speak to Mrs. Pittman and to falsely accuse Mrs. Lehman and allege to Mrs. Pittman that Mrs. Lehman was essentially stealing from her. Again, Mower s only job for Accents was to sell items online, and she had no knowledge whatsoever of the operational protocols of Accents nor of any details of the sale outside of particular items she was asked to list for sale on the Ebay website. 36. At this time, Accents is specifically aware of Mower s affidavit, sworn testimony containing false and defamatory statements regarding the reconciliation report of the sale and Accents business conduct. Further, upon information and belief, Mower has proffered further lies and misrepresentations to Mrs. Pittman regarding Accents prompting this lawsuit. FOR A FIRST CAUSE OF ACTION AGAINST KAREN MOWER (Defamation 37. The foregoing allegations are incorporated herein as if fully restated. 38. Mower published false and defamatory statements to the Plaintiff and to the public at large by having sought out the Plaintiff and ultimately convincing Plaintiff through her words, deeds, and in her affidavit, of civil wrongs done her by Accents. All allegations made against Accents from Mower to Plaintiff are indeed false.
39. Mower s communications were not privileged, but in fact directly published to the Plaintiff and ultimately to the public record, which is in easily downloadable and viewable form by all members of the public, including Accents customers, friends, and family members. 40. Such allegations have humiliated Accents and it s owner, sullied reputations, and given rise, upon information and belief, to further defamatory conduct as Plaintiff relays Mower s statements within her own sphere of influence. 41. As a direct and proximate results of Mower s libelous and slanderous conduct, Accents/Lehman has suffered both emotional and economic loss, and is entitled to recover general, special, and punitive damages, as well as all costs and attorney s fees against Mower. FOR A SECOND CAUSE OF ACTION AGAINST KAREN MOWER (Breach of Duty of Loyalty 42. The foregoing allegations are incorporated herein as if fully restated. 43. As an employee of Accents, Mower owed Accents a legal duty of loyalty. 44. Mower breached her duty of loyalty in at least two specific respects, though not exclusively, by diverting funds from online sales into her personal PayPal account, and by surreptitiously taking unfounded and slanderous allegations to the Plaintiff in a direct attempt to create this legal action, and having clearly never addressed any of the particular concerns with her employer before seeking to destroy her employer s reputation and cause irreparable harm to the business and its owner. 43. Mower s breach was willful and wanton, and it was undertaken with reckless disregard for her employer or the truth in any fashion. 45. As a direct and proximate result of Mower s breach of her duty of loyalty, Accents has been damaged and is entitled to recover its actual, consequential and punitive damages.
FOR A THIRD CAUSE OF ACTION AGAINST KAREN MOWER (Conversion 46. The foregoing allegations are incorporated herein as if fully restated. 47. All sales from Ebay listings related to Accents estate sales or online sales in any capacity generate revenues, all of which are to be deposited into Accent s PayPal account. 48. Mower converted funds properly payable into Accents account for ultimate commissions and distribution, and she did so convert the funds to her own use by depositing funds into her own personal account. 49. Mower s conversion was unlawful and without permission of Accents, and by this conversion, as well as others which may be determined and proven at trial, Accents has been damaged in an amount to be proven thereon. FOR A FOURTH CAUSE OF ACTION AGAINST KAREN MOWER (Fraud 50. The foregoing allegations are incorporated herein as if fully restated. 51. Mower made representations to the Plaintiff, and has since made representations under oath to the Court that Accents and Brian Lehman falsely reported sales on a reconciliation report and that Lehman essentially attempted to defraud the Plaintiff out of funds properly owed Plaintiff. For specificity, Mower s specific and false allegations are set forth in the filed affidavit and incorporated herein as they purport (falsely to make representations as to Accents conduct and intent. 52. Each of Mower s representations thus made to both Plaintiff and via affidavit were false, as previously pled within the defamation cause of action. These representations were critically material as they clearly led to the initiation of this lawsuit.
53. Mower knew that her representations were false or acted with reckless disregard of their truth or falsity. Mower s affidavit clearly reflects the absence of actual knowledge of illegal conduct, yet Mower concluded as she saw fit to protect her own interests and distract attention from her own misconduct. Furthermore, Mower had no knowledge about the operational practices of Accents nor any right to comment upon the data of which she had no direct knowledge nor any right to such knowledge. Mower s only job was to list and sell items on Ebay. 54. Mower intended the Plaintiff to rely upon her accusations, as she specifically sought to create within Plaintiff the belief that she was wronged by Defendant Accents. 55. The Plaintiff would have been ignorant of the falsity of Mower s statements, yet would have a reasonable right of reliance and reliance in fact since Mower worked for Accent as its employee/agent. 56. Mower s fraudulent representations to Plaintiff directly and proximately caused Plaintiff to initiate this action against Accents, and Accents has suffered injury to its reputation and to its business. Accents is entitled to recover its actual, consequential, and punitive damages against Mower for her fraudulent conduct. WHEREFORE, Defendant/Third-party Plaintiff prays for the following relief: a. That the Complaint be dismissed; b. For actual damages against Plaintiff; c. For actual, consequential, both general and special, and punitive damages against Thirdparty Defendant Mower; d. For costs and attorneys fees; and e. For such other relief as may be just and proper.
Respectfully submitted, s/william R. McKibbon III S.C. Bar 68454 601 E. McBee Ave. Ste 204 Greenville, SC 29601 864.235.0071 864.235.0072 (f will@legalcarolina.com Attorney for Defendant/Third-party Plaintiff
STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS COUNTY OF GREENVILLE THIRTEENTH JUDICIAL CIRCUIT Bonnie U. Pittman, individually and as C.A. NO: 2016-CP-23-00945 Trustee of the Dorothy F. King Living Trust, Plaintiff, CERTIFICATE OF SERVICE v. Accents Unlimited, Inc. d/b/a The Galleries Of Brian Brigham, Defendant, Third Party Plaintiff, v. Karen Mower, Third-Party Defendant, I hereby certify that the foregoing Answer, Counterclaim, and Third-party Complaint has been served upon the following attorney of record this 26 th day of April, 2016, by e-filing the same: Steven Edward Buckingham Ivey Square 200 North Main St. Ste 301 Greenville, SC 29601 The third-party Defendant shall be personally served and such proof of service shall be made upon successful service thereupon. s/ William R. McKibbon III S.C. Bar 68454 601 E. McBee Ave. Ste 204 Greenville, SC 29601 864.235.0071 864.235.0072 (f will@legalcarolina.com
Attorney for Defendant/Third-party Plaintiff