Brenda Casteen Amended Counterclaim Jimmy Parlier Transport and Mark Ishman, Attorney of Record at time of filing

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION Case No. 5:14-cv-00085

JAMES LEE PARLIER JR., an individual (d/b/a ) Jimmy Parlier Horse Transport, Parlier Farms ) and Parlier Equine Transport & Carriages); )

) Plaintiff, )

v. ) ) DEFENDANT BRENDA CASTEEN’S

TIFFANY LEWIS, an individual, ) ANSWER AND AMENDED ) COUNTERCLAIM

KANSAS CITY PREMIER APARTMENTS, ) INC., a Missouri corporation, ) ) JASON STAHL, an individual, )

) MARIA BOGDANOVA PEIFER, an individual, ) ) BRENDA CASTEEN, an individual, )

) MARILYN MEEKER BERNSTEIN, an ) individual, ) ) JOHN AND JANE DOES 1-10, presently ) unknown individuals; )

) Defendants. )

NOW COMES the Defendant Brenda Casteen, by and through her undersigned counsel, filing this Answer and Amended Counterclaim pursuant to Fed. R. Civ. P. 15, responding to the Complaint filed by the Plaintiff as follows:

FIRST DEFENSE: FAILURE TO STATE A CLAIM

Defendant moves the Court to dismiss the above entitled action given that the same fails to state a claim against the Defendant and should for that reason be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

SECOND DEFENSE: STATUTE OF LIMITATIONS

To the extent that the rights of action set forth in the Complaint are based upon any alleged conduct which took place prior to May 29, 2013, such rights did not accrue within one year next before the commencement of this action as required by law.

Case 5:14-cv-00085-RLV-DCK Document 35 Filed 09/19/14 Page 1 of 28

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THIRD DEFENSE: PRIVILEGE

Should the Plaintiff’s allegations of Defamation Per Se and Defamation Per Quod not be dismissed, the Defendant pleads the affirmative defense of absolute and/or qualified privilege to the allegations of Defamation Per Se and Defamation Per Quod.

FOURTH DEFENSE: TRUTH

As an affirmative defense to Plaintiff’s claims for Defamation Per Se and Defamation Per Quod, and to the extent that Plaintiff has adequately alleged such claims, the Defendant asserts and affirmatively pleads truth as an absolute defense to such claims.

FIFTH DEFENSE: CIVIL CONSPIRACY – FAILURE OF UNDERLYING CLAIMS As an affirmative defense to Plaintiff’s claim for Civil Conspiracy, Defendant contends that Plaintiff’s claim for Civil Conspiracy cannot survive given that Plaintiff’s underlying defamation based claims fail and North Carolina law does not recognize a separate civil action for Civil Conspiracy. New Bar Partnership v. Martin, __ N.C. App. __, __, 729 S.E.2d 675, 682 (2012).

SIXTH DEFENSE: UNCLEAN HANDS

The Defendant hereby pleads that the Plaintiff’s claims are barred by the doctrine of unclean hands in that he and his businesses have been charged with and accepted responsibility for multiple violations of rules of the United States Department of Transportation and Federal Motor Carrier Safety Administration and have had a number of horses under their care become severely injured, ill and/or die.

EIGHTH DEFENSE: FAILURE TO SPECIFICALLY PLEAD DEFAMATION PER SE

The Defendant hereby pleads that with regards to any claims in which Plaintiff has failed to specify the content of the statements that were made by this Answering Defendant or when they appeared on any websites, Plaintiff has failed to provide this Answering Defendant with adequate notice of the Plaintiff’s claims and in turn has failed to state a claim for libel per se.

NINTH DEFENSE: FAILURE TO SPECIFICALLY PLEAD DEFAMATION PER QUOD The Defendant hereby pleads that with regards to any claims in which Plaintiff has failed to (1) specify the content of the statements that were made by this Answering Defendant; (2) specify when any such statements appeared on any websites; and (3) allege the innuendo and special damages that gave any alleged statements their libelous character, Plaintiff has failed to provide this Answering Defendant with notice of the allegations made in support of Plaintiff's claim and in turn has failed to state a claim for libel per quod.

TENTH: FAILURE TO PLEAD INTENTIONAL INDUCEMENT IN TORTIOUS INTERFERENCE WITH CONTRACT CLAIM


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The Defendant hereby pleads that with regards to Plaintiff’s Tortious Interference with Contract Claim, Plaintiff has failed to plead and cannot show that this Answering Defendant intentionally induced Traveling Horse Transport & Stables, Inc. or any other third parties to not perform contracts with Plaintiff. BY WAY OF FURTHER DEFENSE, the Defendant responds to the individually numbered paragraphs of Plaintiff’s Complaint as follows:

NATURE OF THE ACTION

1. The Defendant is without sufficient information or knowledge to form a belief as to the

truth of the matters asserted in paragraph 1, and therefore the allegations are denied.

2. The Defendant is without sufficient information or knowledge to form a belief as to the truth of the matters asserted in paragraph 2, and therefore the allegations are denied.



truth of the matters asserted in paragraph 4, and therefore the allegations are denied. 5. Denied. 6. The Defendant is without sufficient information or knowledge to form a belief as to the

truth of the matters asserted in paragraph 6, and therefore the allegations are denied. In addition, this Answering Defendant cannot reasonably determine to which Defendant(s) paragraph 6 is directed, and therefore the allegations are denied on that basis also.

7. Denied. 8. Denied.

THE PARTIES

9. Admitted, upon information and belief. 10. Admitted, upon information and belief. 11. The Defendant is without sufficient information or knowledge to form a belief as to the

truth of the matters asserted in paragraph 11, and therefore the allegations are denied. 12. The Defendant is without sufficient information or knowledge to form a belief as to the



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truth of the matters asserted in paragraph 14, and therefore the allegations are denied. 15. It is admitted that this Answering Defendant resides in Nicholas County, West Virginia, is a

former girlfriend of Plaintiff and has purchased horses from the Plaintiff on previous occasions. Except as specifically admitted herein, denied.



truth of the matters asserted in paragraph 17, and therefore the allegations are denied. 18. Denied.

JURISDICTION AND VENUE


20. It is admitted that this Answering Defendant was aware and of the belief that Plaintiff has

continuously resided in Denver, Lincoln County, North Carolina. Except as specifically admitted herein, denied.

21. The allegations of Paragraph 21 call for a legal conclusion, and as such the allegations are

denied. 22. Denied. 23. Plaintiff’s Complaint referenced in Paragraph 23 speaks for itself. As such, no further

response is required. 24. The allegations of Paragraph 24 call for a legal conclusion, and as such the allegations are

denied. This Answering Defendant also specifically denies that the Defendants in this matter conspired together for the purpose of damaging Plaintiff.

FACTUAL BACKGROUND AND GENERAL ALLEGATIONS 25. The Defendant is without sufficient information or knowledge to form a belief as to the



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The Chronicles of the Horse Page 29. It is admitted that this Answering Defendant created an account and posted comments on

the “Chronicles” page. Exhibit A referenced in paragraph 29 speaks for itself. Except as specifically admitted herein, denied.

30. Exhibit A referenced in paragraph 30 speaks for itself. As such, no further response is

required. 31. Exhibit A referenced in paragraph 31 speaks for itself. As such, no further response is

required. 32. Exhibit A referenced in paragraph 32 speaks for itself. As such, no further response is

required. 33. Denied. 34. Exhibit A referenced in paragraph 34 speaks for itself. As such, no further response is

required. In addition, with regards to subparagraph (a) of paragraph 34 no such statement is located in Exhibit A attached to Plaintiff’s Complaint.

35. Denied.

Original Facebook Horse Transport Reviews 36. It is admitted that this Answering Defendant created an account and posted comments on

the “Facebook Horse Transport Reviews” Page. Exhibit B referenced in paragraph 36 speaks for itself. Except as specifically admitted herein, denied.

37. Exhibit B referenced in paragraph 37 speaks for itself. As such, no further response is

required. 38. Denied. In addition, Exhibit B referenced in paragraph 38 speaks for itself. As such, no

further response is required. 39. Denied. In addition, Exhibit B referenced in paragraph 39 speaks for itself. As such, no

further response is required.


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40. Denied. 41. Denied. In addition, Exhibit B referenced in paragraph 41 speaks for itself. As such, no

further response is required. 42. Exhibit B referenced in paragraph 42 speaks for itself. As such, no further response is

required. 43. Denied. 44. Denied.

Tiffany Lewis’ Facebook page 45. The allegations of paragraph 45 are not directed to this answering Defendant, and therefore

no response is required. To the extent such a response is required of this answering Defendant, the same is denied for lack of information or belief.

46. The allegations of paragraph 46 are not directed to this answering Defendant, and therefore










Maria Bagdanova Peifer’s Facebook Page




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52. The allegations of paragraph 52 are not directed to this answering Defendant, and therefore no response is required. To the extent such a response is required of this answering Defendant, the same is denied for lack of information or belief.











Defendants’ Facebook HorseTransporterReviews Page 58. It is admitted that this Answering Defendant was made an Administrator on the “Facebook

HorseTransporterReviews” Page. This Answering Defendant specifically denies that she created the Facebook Page referenced in paragraph 58. In addition, Exhibit E referenced in paragraph 58 speaks for itself. Except as specifically admitted herein, denied.

59. Exhibit E referenced in paragraph 59 speaks for itself. As such, no further response is

required. 60. Exhibit E referenced in paragraph 60 speaks for itself. As such, no further response is

required. 61. Denied. In addition, Exhibit E referenced in paragraph 61 speaks for itself. As such, no

further response is required. 62. Denied. In addition, Exhibit E referenced in paragraph 62 speaks for itself. As such, no

further response is required. 63. Denied. In addition, Exhibit E referenced in paragraph 63 speaks for itself. As such, no



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64. Denied. In addition, Exhibit E referenced in paragraph 64 speaks for itself. As such, no further response is required.

Defendants’ Facebook Fairytale Arabians Page



66. The allegations of Paragraph 66 are not directed to this answering Defendant, and therefore












Yelp Publications

72. It is admitted that this Answering Defendant created an account and posted comments on

the “Yelp” page. Exhibit G referenced in paragraph 72 speaks for itself. Except as specifically admitted herein, denied.

73. Exhibit G referenced in paragraph 73 speaks for itself. As such, no further response is

required. 74. Exhibit G referenced in paragraph 74 speaks for itself. As such, no further response is

required. 75. Denied. In addition, Exhibit G referenced in paragraph 75 speaks for itself. As such, no



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76. Denied. In addition, Exhibit G referenced in paragraph 76 speaks for itself. As such, no

further response is required. 77. Denied. In addition, Exhibit G referenced in paragraph 77 speaks for itself. As such, no

further response is required. 78. Denied. In addition, Exhibit G referenced in paragraph 78 speaks for itself. As such, no


Facebook Mylla’s Story














Marilyn Meeker Bernstein’s Facebook Page




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Other Unknown False, Misleading and Deceptive Damaging Published Comments







Intentional Acts


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99. A majority of the allegations of paragraph 99 are not directed to this Answering Defendant and therefore no response is required. To the extent such a response is required of this answering Defendant, the same is denied for lack of information or belief. As to subparagraph (f) of paragraph 99, Exhibit B referenced in subparagraph (f) of paragraph 99 speaks for itself. As such, no further response is required.

100. Denied. 101. Denied. 102. Denied. 103. Exhibit A referenced in paragraph 103 speaks for itself. As such, no further response is

required. 104. Denied. 105. The Defendant is without sufficient information or knowledge to form a belief as to the


truth of the matters asserted in paragraph 106, and therefore the allegations are denied. 107. Exhibit J referenced in paragraph 107 speaks for itself. As such, no further response is

required. 108. Denied. 109. The allegations of paragraph 109 are not directed to this answering Defendant, and

therefore no response is required. To the extent such a response is required of this answering Defendant, the same is denied for lack of information or belief.

Conspiracy

110. Denied. 111. Denied. 112. Denied. 113. Denied. 114. Denied.

FIRST CLAIM FOR RELIEF TORTIOUS INTERFERENCE WITH CONTRACT


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115. This answering Defendant hereby incorporates all prior responses and answers to the Complaint as if fully set forth herein.



truth of the matters asserted in paragraph 117, and therefore the allegations are denied. 118. Denied. 119. Denied. 120. Denied. 121. Denied. 122. Denied. 123. Denied. 124. Denied. 125. Denied. 126. Denied.

SECOND CLAIM FOR RELIEF NORTH CAROLINA DEFAMATION PER SE

127. This answering Defendant hereby incorporates all prior responses and answers to the

Complaint as if fully set forth herein. 128. Denied. 129. Denied. 130. Denied. 131. Denied. 132. Denied. 133. Denied. 134. Denied.


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135. Denied. 136. Denied.

THIRD CLAIM FOR RELIEF NORTH CAROLINA DEFAMATION PER QUOD

137. This answering Defendant hereby incorporates all prior responses and answers to the

Complaint as if fully set forth herein. 138. Denied. 139. Denied. 140. Denied. 141. Denied. 142. Denied. 143. Denied. 144. Denied. 145. Denied. 146. Denied.

FOURTH CLAIM FOR RELIEF VIOLATION OF NORTH CAROLINA DECEPTIVE TRADE PRACTICES ACT,

N.C. GEN. STAT. § 75-1 TO § 75-35 147. This answering Defendant hereby incorporates all prior responses and answers to the

Complaint as if fully set forth herein. 148. The allegations of paragraph 148 call for a legal conclusion, and as such, the allegations are

denied. 149. The Defendant is without sufficient information or knowledge to form a belief as to the


truth of the matters asserted in paragraph 150, and therefore the allegations are denied. 151. Denied.


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152. Denied. 153. Denied. 154. Denied. 155. Denied. 156. Denied. 157. Denied. 158. Denied.

AMENDED COUNTERCLAIM BY WAY OF FURTHER DEFENSE AND COUNTERCLAIM pursuant to Rules 13 and 15 of the Federal Rules of Civil Procedure, the Defendant Brenda Casteen (“Defendant Casteen”) alleges and says:

THE HORSE TRANSACTIONS:

1. In 2009, Defendant Casteen purchased a Peruvian Paso Mare horse named Allie (“Allie”) from Plaintiff.

2. In approximately July of 2011, Plaintiff and Defendant Casteen began a romantic

relationship.

3. In approximately November of 2011, Defendant Casteen purchased a Belgian/Percheron Cross Mare horse named Ruby (“Ruby”).

4. Thereafter, Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would

broker the sale of Ruby and split the proceeds with Defendant Casteen.

5. Plaintiff did not broker a sale of Ruby and instead Plaintiff and his friend, on information and belief an individual named Charlie, took possession of Ruby.

6. Upon information and belief, Plaintiff then began using and still uses Ruby as part of

Parlier Equine Transport and Carriages (“the carriage business”), a business that Plaintiff operates.

7. In approximately November of 2011, Defendant Casteen purchased a Belgian Draft Mare

horse named Buttercup (“Buttercup”).

8. Thereafter, Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would broker the sale of Buttercup and split the proceeds with Defendant Casteen.


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9. Plaintiff did not broker a sale of Buttercup and instead began using Buttercup as part of Plaintiff’s carriage business.

10. In approximately November of 2011, Defendant Casteen purchased a Bay Mare Mule named Maggie (“Maggie”).

11. Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would broker the sale of Maggie and Defendant would be reimbursed her costs for purchase and the balance of the sale price would be split between Plaintiff and Defendant Casteen.

12. Plaintiff brokered a sale of Maggie but did not provide Defendant Casteen with the full amount of money to reimburse her for her costs and the balance of the sale price.

13. On or about April 2012, Defendant Casteen purchased a five (5) year old black Percheron

horse (“the black Percheron horse”) from Plaintiff for $2,500.00.

14. After it was discovered that the black Percheron horse was unsafe for riding Defendant Casteen and Plaintiff agreed for Plaintiff to sell the black Percheron horse at auction and split the proceeds.

15. Plaintiff sold the black Percheron horse at auction. 16. Rather than splitting the proceeds with Defendant Casteen, Plaintiff gave Defendant

Casteen a Draft Gelding Horse named Jameson (“Jameson”) in trade for the black Percheron horse.

17. Plaintiff represented to Defendant Casteen that Jameson was of equal value to the black Percheron horse.

18. When Plaintiff gave Jameson to Defendant Casteen he also provided Defendant Casteen with paperwork for Equine Infectious Anemia, otherwise known as “Coggins papers[,]” for Jameson.

19. Coggins papers are generally required before a horse can be transported across state lines, shown, bred or moved into a new barn or stable.

20. The Coggins papers that Plaintiff provided to Defendant Casteen for Jameson stated that Jameson was five (5) years old.

21. Upon information and belief, the Coggins papers for Jameson had been forged by Plaintiff to show that Jameson was five (5) years old.

22. Jameson was in fact twelve (12) to fourteen (14) years old.

23. Over the course of her relationship with Plaintiff, Defendant Casteen kept her horses,

including Allie, Ruby, Buttercup and Jameson at a barn located at Defendant’s residence.


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24. On or about June 1, 2012, Plaintiff and Defendant Casteen’s relationship ended.

25. Defendant Casteen informed Plaintiff that she would be leaving his home and taking her

horses with her.

26. Plaintiff refused to allow Defendant Casteen to leave his home. 27. Plaintiff refused to allow Defendant Casteen to leave his home with her horses.

28. Plaintiff told Defendant Casteen that he would load Defendant Casteen’s horses and other

belongings that were at her home onto a hauling trailer and bring them to her apartment the following day.

29. The next day, Plaintiff arrived at Defendant Casteen’s apartment but did not have Allie, Ruby or Buttercup with him.

30. Defendant Casteen asked Plaintiff where Allie, Ruby and Buttercup were at. 31. Plaintiff told Defendant Casteen that she could not have Allie, Ruby or Buttercup. 32. Defendant Casteen has since made demands on Plaintiff for the return of Allie, Ruby and

Buttercup. 33. Plaintiff has refused to return Allie, Ruby and Buttercup to Defendant Casteen. 34. After Plaintiff and Defendant Casteen’s relationship ended, Defendant Casteen took

Jameson to a veterinarian who determined through examination that Jameson was actually twelve (12) to fourteen (14) years old.

OCTOBER 2011 ASSAULT AND BATTERY 35. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein. 36. In October 2011, Plaintiff and Defendant Casteen were at Plaintiff’s home. 37. At that time, Plaintiff used a computer to access a prior online business account (“prior

business account”). 38. Plaintiff had previously told Defendant Casteen that he had been locked out of his prior

business account by his former girlfriend who also had the capability to access the account. 39. Plaintiff and Defendant Casteen began to argue about Plaintiff and his former girlfriend still

being able to access his prior business account.


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40. Defendant Casteen attempted to walk away from Plaintiff. 41. Plaintiff grabbed Defendant Casteen by her left arm and drug her through the living room of

the home and into Plaintiff’s bedroom. 42. While in the bedroom, Plaintiff swung his hand and struck Defendant Casteen in the face

and pulled her hair.

APRIL 2012 ASSAULT AND BATTERY 43. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

44. In April 2012, Plaintiff and Defendant Casteen were at Plaintiff’s home. 45. Plaintiff and Defendant Casteen began to argue over Plaintiff continuing to contact his

former girlfriend while he and Defendant Casteen were in a relationship. 46. Defendant Casteen sat down on the couch in the living room and did not speak. 47. Plaintiff then sat down across from Defendant Casteen and told her that he was sorry and

that he needed help with his lying. 48. Defendant Casteen and Plaintiff continued to argue. 49. Plaintiff then grabbed Defendant Casteen by her arm. 50. Plaintiff drug Defendant Casteen through the home by her arm. 51. Plaintiff screamed at Defendant Casteen. 52. Plaintiff used his hands to pull Defendant Casteen’s hair. 53. Plaintiff then swung his hands and hit Defendant Casteen in the head and face.

MAY 2012 ASSAULT, BATTERY AND FALSE IMPRISONMENT 54. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

55. In May 2012, Plaintiff and Defendant Casteen were riding in Plaintiff’s truck. 56. Plaintiff was driving the truck and Defendant Casteen was riding in the front passenger seat. 57. Plaintiff received a call on his cellular telephone.


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58. Plaintiff did not take the phone call. 59. Plaintiff then deleted the incoming call number from his cellular telephone’s call history. 60. Defendant Casteen questioned Plaintiff about the telephone call. 61. Plaintiff and Defendant Casteen began to argue. 62. Plaintiff and Defendant Casteen then arrived at Plaintiff’s home. 63. After both Plaintiff and Defendant Casteen had exited the truck, Plaintiff walked over to

Defendant Casteen and hit Defendant Casteen in the face with the back of his hand. 64. The force of the blow knocked Defendant Casteen to the ground. 65. Plaintiff then walked into his home. 66. Defendant Casteen then went into Plaintiff’s home. 67. Defendant Casteen attempted to gather some of her belongings from the bathroom of

Plaintiff’s home. 68. Plaintiff placed himself in the doorway of his bathroom and kept Defendant Casteen from

entering the bathroom. 69. Plaintiff told Defendant Casteen that she could not leave his home. 70. Plaintiff pushed Defendant Casteen’s travel bag from Defendant Casteen’s hand to the

ground. 71. Plaintiff grabbed Defendant Casteen and started hitting her in the face with his hands. 72. Plaintiff then took the plastic shower curtain and curtain rod from his bathroom. 73. Plaintiff hit Defendant Casteen in the face multiple times with the plastic shower curtain

and rod. 74. Plaintiff swung his hands and hit Defendant Casteen in the face. 75. Plaintiff then pushed Defendant Casteen onto the bed. 76. Defendant took his hands and placed them around Defendant Casteen’s throat. 77. When Defendant Casteen would attempt to rise from the bed, Plaintiff would swing his

hands and strike Defendant Casteen in the face and place his hands around her neck and throw her back onto the bed.


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78. Despite Defendant Casteen’s attempts to leave Plaintiff’s home, Plaintiff would not allow

Defendant Casteen to leave.

FIRST CAUSE OF ACTION- CLAIM AND DELIVERY

67. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

68. The Plaintiff is in possession of Defendant’s personal property, to wit, at least three (3) horses belonging to Defendant Casteen, said horses being more specifically referenced as Allie, Ruby and Buttercup, identified above.

69. Despite requests and due demand, the Plaintiff has failed and refuses to return the Defendant’s personal property identified above.

70. The property described above is and has been wrongfully detained by the Plaintiff.

71. As such, the Plaintiff has converted the property, and is liable to Defendant Casteen for full return of the property.

72. Upon information and belief, Plaintiff has wrongfully detained Defendant Casteen’s property described above in retaliation over the end of Plaintiff and Defendant Casteen’s relationship and Defendant Casteen’s choice to leave the relationship.

73. Upon information and belief, Plaintiff has wrongfully detaining Defendant Casteen’s property so that he may use it in connection with his carriage business.

74. Upon information and belief, the property described above has not been taken for tax,

assessment or fine, pursuant to a statute, or seized under an execution or attachment against the property.

75. The estimated actual value of the property is as follows:

a. Allie – approximately $1,750.00 b. Ruby – approximately $1,750.00 c. Buttercup – approximately $1,750.00

SECOND CAUSE OF ACTION – BREACH OF CONTRACT 76. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

77. Defendant Casteen is the owner of Ruby and Buttercup.


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78. Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would broker the sale of Ruby and split the proceeds with Defendant Casteen.

79. Plaintiff and/or his friend Charlie are still in possession of Ruby and Plaintiff uses Ruby as

part of his carriage business.

80. Plaintiff breached the agreement between the parties to sell Ruby and split the proceeds. 81. Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would broker the

sale of Buttercup and split the proceeds with Defendant Casteen.

82. Plaintiff is still in possession of Buttercup and uses Buttercup as part of his carriage business.

83. Plaintiff breached the agreement between the parties to sell Buttercup and split the proceeds.

84. Plaintiff and Defendant Casteen entered an agreement whereby Plaintiff would broker the

sale of Maggie and Defendant Casteen would then be reimbursed her costs of purchase for Maggie and the balance of the sale proceeds would be split between Plaintiff and Defendant Casteen.

85. Plaintiff sold Maggie. 86. Plaintiff did not reimburse Defendant Casteen her full costs of purchase for Maggie. 87. Plaintiff did not split the balance of the sale proceeds for Maggie with Defendant Casteen. 88. Plaintiff breached the agreement between the parties to sell Maggie.

89. As a result of the breaches of contract by the Plaintiff, Defendant Casteen has been

damaged in an amount in excess of Twenty Five Thousand Dollars ($25,000.00).

THIRD CAUSE OF ACTION- IMPLIED CONTRACT/ QUANTUM MERUIT/ UNJUST ENRICHMENT


set forth herein. 91. Defendant Casteen is the owner of Ruby and Buttercup.

92. The Plaintiff has benefitted from his continued possession and use of Ruby and Buttercup

in his commercial carriage business.

93. Defendant Casteen did not provide Ruby and Buttercup, her personal property, to Plaintiff gratuitously.


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94. Defendant Casteen reasonably expected Plaintiff to adhere to their sales agreements or to provide Ruby and Buttercup to her on due demand.

95. If the Plaintiff is not required to compensate or otherwise reimburse Defendant Casteen for the services provided, the Plaintiff will be unjustly enriched in an amount in excess of Twenty Five Thousand Dollars ($25,000.00).

96. Defendant Casteen is entitled to an amount in excess of Twenty Five Thousand Dollars

($25,000.00), plus interest, from the Plaintiff in quantum meruit.

FOURTH CAUSE OF ACTION – CONVERSION 97. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein. 98. Defendant Casteen is the owner of Allie, Ruby and Buttercup.

99. The Plaintiff is not the owner of Allie, Ruby and Buttercup.

100. Plaintiff ignored Defendant Casteen’s numerous demands that Allie, Ruby and Buttercup be

returned and delivered to her.

101. Plaintiff without authorization or regard for Defendant Casteen’s ownership remained in possession of Allie, Ruby and Buttercup and/or converted them to his own use.

102. The Plaintiff has wrongful possession of Allie, Ruby and Buttercup and has refused to return the same to Defendant Casteen.

103. The value of Allie, Ruby and Buttercup was approximately five thousand two hundred and fifty dollars ($5,250.00) at the time of conversion.

104. The Plaintiff has not paid Defendant Casteen any sum of money for Allie, Ruby or Buttercup.

FIFTH CAUSE OF ACTION- POSSESSION OF PERSONAL PROPERTY


set forth herein. 106. Defendant Casteen contends that Allie, Ruby and Buttercup have been and remain her

personal property.

107. As a result of Plaintiff’s conversion and possession of Allie, Ruby and Buttercup, and his failure and refusal to return the same, Defendant Casteen has been unlawfully deprived of her rightful possession.

SIXTH CAUSE OF ACTION – FRAUD


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set forth herein.

109. Plaintiff represented to Defendant Casteen that Jameson was five (5) years old.

110. Plaintiff forged Coggins papers for Jameson in order to indicate that Jameson was five (5) years old.

111. Plaintiff knew that the Jameson was actually twelve (12) to fourteen (14) years old. 112. Plaintiff concealed from Defendant Casteen that Jameson was twelve (12) to fourteen (14)

years old.

113. Plaintiff’s representation that Jameson was five (5) years old was false.

114. Plaintiff’s concealment and representations were reasonably calculated to deceive Defendant Casteen.

115. At the time such representations were made, Plaintiff knew that Jameson was twelve (12) to fourteen (14) years old.

116. Alternatively, Plaintiff, recklessly and without any knowledge of its truth, represented that

Jameson was five (5) years old. 117. Plaintiff intended to induce Defendant Casteen’s reliance on Plaintiff’s representations that

Jameson was five (5) years old. 118. Defendant Casteen has been injured as a result of its reliance on Plaintiff’s false

representations in an amount to be determined at trial, such damages to include, but are not limited to loss of value, costs of mitigation (if any) and lost interest.

SEVENTH CAUSE OF ACTION- UNFAIR AND DECEPTIVE TRADE PRACTICES 119. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

120. The actions of Plaintiff as herein described were acts in or affecting commerce in the State of North Carolina.

121. The actions described herein constitute the commission of an unfair and deceptive trade

practice in violation of Chapter 75 of the North Carolina General Statutes resulting in damages to Defendant Casteen.


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122. The actions described herein entitle Defendant Casteen to recover damages against Plaintiff in excess of Twenty Five Thousand Dollars ($25,000.00).

123. The actions described herein entitle the damages Defendant Casteen recovers against

Plaintiff to be trebled. 124. The actions described herein entitle Defendant Casteen to recover her costs and reasonable

attorney’s fees incurred in the prosecution of this action.

EIGHTH CAUSE OF ACTION- PUNITIVE DAMAGES 125. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein.

126. In committing the fraud and unfair and deceptive trade practices against Defendant Casteen noted herein, Plaintiff did act willfully, wantonly, and in conscience disregard for the injuries that would result to Defendant Casteen.

127. Defendant Casteen was injured as the result of the willful and wanton conduct of Plaintiff. 128. By reason of the willful and wanton conduct of Plaintiff as described herein, Defendant

Casteen is entitled to recover punitive damages from Plaintiff in an amount to be determined by the jury.

NINTH CAUSE OF ACTION- BATTERY


set forth herein.

123. Without Defendant Casteen’s consent, Plaintiff, on multiple occasions, intentionally swung his hand and struck Defendant Casteen in her head and face, causing her harm, severe pain and personal injury.

124. In October 2011, without Defendant Casteen’s consent, Plaintiff intentionally used his

hands to grab Defendant Casteen’s left arm and drag her through his home, causing her harm, severe pain and personal injury.

125. In October 2011, without Defendant Casteen’s consent, Plaintiff intentionally swung his

hands and struck Defendant Casteen in her head and face, causing her harm, severe pain and personal injury.

126. In October 2011, without Defendant Casteen’s consent, Plaintiff intentionally used his

hands to grab and pull Defendant Casteen’s hair, causing her harm, severe pain and personal injury.


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127. In April 2012, without Defendant Casteen’s consent, Plaintiff intentionally used his hands to grab Defendant Casteen’s arm and drag her through his home, causing her harm, severe pain and personal injury.

128. In April 2012, without Defendant Casteen’s consent, Plaintiff intentionally swung his hand

and struck Defendant Casteen in her head and face, causing her harm, severe pain and personal injury.

129. In April 2012, without Defendant Casteen’s consent, Plaintiff intentionally used his hands

to grab and pull Defendant Casteen’s hair, causing her harm, severe pain and personal injury.

130. In May 2012, without Defendant Casteen’s consent, Plaintiff intentionally swung his hands

and struck Defendant Casteen in her head and face, causing her harm, severe pain and personal injury.

131. In May 2012, without Defendant Casteen’s consent, Plaintiff intentionally placed his hands

about Defendant Casteen’s neck and pushed and choked her, causing her harm, severe pain and personal injury.

132. In May 2012, without Defendant Casteen’s consent, Plaintiff swing a shower curtain and

shower rod with his hands and struck Defendant Casteen in her face multiple times, causing her harm, severe pain and personal injury.

133. Plaintiff’s touching of Defendant Casteen was offensive and harmful as Plaintiff

intentionally caused physical harm to Defendant Casteen. 134. The egregious conduct of Plaintiff in violently and unexpectedly battering Defendant

Casteen was intentional, wanton, willful, and malicious. 135. Such intentional battery on the part of Plaintiff was a proximate cause of damages suffered

by Defendant Casteen including, but not limited to: personal injuries, medical expenses and pain and suffering, as well as future pain and suffering and future medical expenses, all in excess of Twenty Five Thousand Dollars ($25,000.00).

TENTH CAUSE OF ACTION- ASSAULT 136. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully

set forth herein. 137. The acts and conduct on the part of the Plaintiff, as described above, were intentional acts

and a display of force or violence on the part of the Plaintiff. 138. The acts and conduct of the Plaintiff caused Defendant Casteen a reasonable apprehension

of eminent harm or offensive contact upon her person, which constituted an assault.


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139. Such intentional assault on the part of Plaintiff was a proximate cause of damages suffered

by Defendant Casteen including, but not limited to: personal injuries, medical expenses and pain and suffering, all in excess of Twenty Five Thousand ($25,000.00).

ELEVENTH CAUSE OF ACTION- FALSE IMPRISONMENT


set forth herein. 141. In May 2012, Defendant Casteen was illegally restrained by Plaintiff. 142. Defendant Casteen was restrained by Plaintiff by force and the implied threat of force. 143. Defendant Casteen was restrained and detained by Plaintiff involuntarily and against

Defendant Casteen’s will. 144. Plaintiff’s acts and conduct in restraining and detaining Defendant Casteen against her will

were intended to be injurious to Defendant Casteen.

TWELFTH CAUSE OF ACTION – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

145. Defendant Casteen re-alleges and incorporates by reference all prior allegations as if fully set forth herein.

146. The actions of Plaintiff as described above were intentional, malicious, corrupt, and

outrageous, beyond the bounds tolerated by this society and were intended to cause and did, in fact, cause Defendant Casteen extreme and severe emotional distress.

147. As a result of the intentional infliction of emotional distress by Plaintiff, Defendant Casteen

has been damaged in an amount in excess of Twenty Five Thousand Dollar ($25,000.00).

148. Plaintiff’s conduct was malicious, outrageous, wanton, and willful and made with reckless disregard for the rights of Defendant Casteen.

149. Plaintiff acted intentionally and deliberately or with a callous disregard for Defendant

Casteen.

150. Defendant Casteen is entitled to an award of punitive damages.

WHEREFORE, this Answering Defendant, having answered the Plaintiff’s Complaint and set forth Counterclaims against the Plaintiff, prays the Court as follows:


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1. That the Plaintiff’s Complaint be dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure.

2. That any and all of Plaintiff’s claims based upon alleged conduct taking place prior to May

29, 2013 be dismissed as being pled outside the applicable statute of limitations. 3. That the Plaintiff have and recover nothing of the Answering Defendant.

4. That this Answering Defendant have and recover against the Plaintiff judgment requiring

return of the described items of personal property which Plaintiff has converted; 5. That the Court order the return of the three (3) horses to the Plaintiff pursuant to the claim

and delivery process;

6. That this Answering Defendant have and recover a sum in excess of Twenty-Five Thousand Dollars ($25,000.00) of Plaintiff together with interest as by law provided;

7. That this Answering Defendant have and recover punitive damages from Plaintiff in an

amount exceeding Twenty-Five Thousand Dollars ($25,000.00);

8. That the Court find that the Plaintiff has converted the use of Defendant Casteen’s horses to his own use, and that the Court enter an order and an award of damages, including interest from the date of conversion, in an amount to be proved by later motion or at trial.

9. That the costs of this action be taxed against the Plaintiff, including a reasonable attorney’s

fee. 10. That all issues raised herein by the pleadings be determined by a jury.

11. For such other and further relief as to the Court may seem just and proper This the 19th day of September, 2014

SIGMON, CLARK, MACKIE, HANVEY & FERRELL, P.A. By:__S/Forrest Ferrell ________________ Forrest A. Ferrell N.C. Bar #: 1439

P.O. Drawer 1470 Hickory, NC 28603 (828) 328-2596 forrest. [email protected] By:__S/ Andy Howell______________


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Andrew J. Howell N.C. Bar #: 42921 P.O. Drawer 1470 Hickory, NC 28603 (828) 328-2596 [email protected]

Attorneys for Defendant Brenda Casteen


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CERTIFICATE OF SERVICE

I hereby certify that on September 19, 2014, I electronically filed the foregoing ANSWER

AND AMENDED COUNTERCLAIM with the Clerk of Court using the CM/ECF system which

will send notification of filing to the following:

Mark W. Ishman Ishman Law Firm, P.C. 9660 Falls of Neuse Road, Suite 138-350 Raleigh, North Carolina 27615 Telephone: 919-468-3266 Fax: 919-882-1466 e-mail: [email protected] Attorney for Plaintiff.

Respectfully submitted,

SIGMON, CLARK, MACKIE, HANVEY & FERRELL, P.A. s/Andy Howell_________________ Andrew J. Howell NC State Bar #: 42921 Attorney for Plaintiff

P.O. Drawer 1470 Hickory, NC 28603 Phone: 828-328-2596 Facsimile: 828-328-6876

Email: [email protected]


mailto:[email protected]

Documents

Brenda Casteen Amended Counterclaim Jimmy Parlier Transport and Mark Ishman, Attorney of Record at time of filing