Pizza Hut Combined File Sept 26

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
PIZZA HUT OF AMERICA, LLC
PLAINTIFF
V.
CIVIL ACTION NO.: 3:16-cv-263-WHB-JCG
MAYWOOD MART TEI EQUITIES, LLC
DEFENDANT
FIRST AMENDED ANSWER, DEFENSES, AND COUNTERCLAIM OF

MAYWOOD MART TEI EQUITIES, INC.
Maywood Mart TEI Equities, LLC (Maywood Mart) answers Plaintiff Pizza Hut of
America, LLCs (Plaintiff or Pizza Hut) Complaint as follows:
First Defense
The Complaint fails to state a claim against Maywood Mart upon which relief may be
granted and therefore should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
Second Defense
The Court may lack subject matter jurisdiction.
Third Defense
Maywood Mart hereby reserves all other 12(b) defenses, and as discovery in this matter
continues, it will assert any other appropriate defense when it has a good faith basis for doing so.
Fourth Defense
Plaintiff failed to mitigate its alleged damages.
Fifth Defense
Plaintiffs alleged damages are not recoverable under applicable law.
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Sixth Defense
Plaintiff suffered no damages actually or proximately caused by the actions or inactions
of Maywood Mart.
Seventh Defense
Maywood Mart asserts all defenses which may be available to it under Fed. R. Civ. P.
8(c).
Eighth Defense
Plaintiff failed to plead items of special damage with sufficient particularity as required
by Fed. R. Civ. P. 9(g).
Ninth Defense
Maywood Mart did not breach any legal duty allegedly owing to Plaintiff, did not breach
any alleged contractual obligation, and did not commit nor is it responsible for any act which
proximately caused or contributed to any actionable damages or harm to Plaintiff.
Tenth Defense
One or more of Plaintiffs claims are or may be barred by the doctrines of waiver,
estoppel, abandonment, relinquishment, and/or ratification.
Eleventh Defense
Maywood Mart pleads its satisfaction of the terms and conditions of the Lease
Agreement and that Plaintiffs claims are barred to the extent Plaintiff failed to comply with the
terms of the Lease Agreement or breached the Lease Agreement first.
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Twelfth Defense
Maywood Mart specifically pleads the provisions in Miss. Code Ann. 11-1-65 that limit
recovery of punitive damages.
Thirteenth Defense
An award of punitive damages against Maywood Mart would amount to a deprivation of
property without due process of law and a violation of the Fifth and Fourteenth Amendments to
the United States Constitution and applicable provisions of the Mississippi Constitution. The
criteria for determining whether and in what amount punitive damages may be awarded are
impermissibly vague, imprecise, and inconsistent and therefore are not in accord with, and are
antagonistic to, the protections of due process. In addition, any award of punitive damages
against Maywood Mart would violate the Eighth and Thirteenth Amendments to the United
States Constitution and the applicable provisions of the Mississippi Constitution.
Fourteenth Defense
Alternatively, Maywood Mart asserts that any award of punitive damages in which there
are not separate trials of liability and assessment of punitive damages would be unconstitutional
on the grounds that this failure to bifurcate would violate Maywood Marts constitutional rights
to due process under the Fifth and Fourteenth Amendments to the United States Constitution.
Accordingly, Maywood Mart asserts all rights preserved for it by Miss. Code Ann. 11-1-65.
Fifteenth Defense
Maywood Mart asserts that any award of punitive damages in which a heightened burden
of proof is not applied would violate its constitutional rights to due process under the Fifth and
Fourteenth Amendments to the United States Constitution.
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Sixteenth Defense
An award of punitive damages against Maywood Mart would violate Article 3, Section
14; Article 3, Section 22; and Article 3, Section 28 to the Mississippi Constitution.
Seventeenth Defense
Maywood Mart asserts that any award of punitive damages in which evidence of its
wealth is admitted into evidence, or which is disproportionate to awards of punitive damages
rendered against other defendants who commit similar alleged offenses resulting in similar
alleged injuries but who differ only in material wealth, would violate Maywood Marts
constitutional right to due process and equal protection of the law under the Fifth and Fourteenth
Amendments to the United States Constitution. Alternatively, these constitutional violations
would also take place if admission of any evidence touching upon the factors of Miss. Code Ann.
11-1-65 were not strictly limited to and relevant to the State of Mississippi.
Eighteenth Defense
Maywood Mart asserts that more than one penalty or award of punitive damages for the
same course of conduct would violate its constitutional right against double jeopardy as well as
its constitutional right to due process under the Fifth and Fourteenth Amendments to the United
States Constitution.
Nineteenth Defense
Maywood Mart asserts that any award of punitive damages that is excessive or
disproportionate to any award of actual damages would violate its constitutional right against
excessive punishment under the Eighth Amendment to the United States Constitution and further
asserts that any such award would violate its constitutional right to due process under the Fifth
and Fourteenth Amendments to the United States Constitution.
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Twentieth Defense
Maywood Mart intends to rely on all other affirmative defenses that may become
available or apparent during the course of discovery, and therefore reserve the right to amend its
Answer and Defenses to assert such defenses.
Twenty-First Defense
Maywood Mart answers the specific allegations in the Complaint, paragraph by
paragraph, as follows:
Parties
1.
Upon information and belief, Maywood Mart admits the allegations contained in
paragraph 1 of the Complaint.

2.
Maywood Mart admits the allegations contained in paragraph 2 of the Complaint.

Jurisdiction
3.

Venue
4.
Maywood Mart admits that venue is proper in this district. Maywood Mart denies
that it has committed any act that would give rise to a claim by Plaintiff.
Facts
5.
Maywood Mart admits the allegations contained in paragraph 5 of the Complaint
to the extent they are consistent with the terms of the Lease Agreement, but denies any
allegations that are inconsistent with the terms of the Lease Agreement.
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6.
Maywood Mart admits that Exhibit A to the Complaint appears to contain an
accurate copy of Lease Agreement, with the exception of missing pages 5 and 6. Maywood Mart
denies the remaining allegations contained in paragraph 6 of the Complaint.
7.
Maywood Mart admits Plaintiff is currently operating a Pizza Hut brand
restaurant on the premises that is at issue in this action but denies that Plaintiff is currently
operating the restaurant on the premises pursuant to the terms of the Lease Agreement.
8.
Maywood Mart denies the allegations contained in paragraph 8 of the Complaint.
9.
10.
Maywood Mart denies the allegations contained in paragraph 10 of the
Complaint.
11.
Denied as stated. Maywood Mart admits that structural damage caused by highly
expansive Yazoo Clay has necessitated the reconstruction of significant portions of the Shopping
Center, and that recent, current, and further shifting of highly expansive Yazoo Clay will
necessitate further work in the future on other portions of the Shopping Center. Maywood Mart
12.
Maywood Mart admits that it is seeking new tenants for the Shopping Center in
places available for rent. Maywood Mart denies the remaining allegations contained in paragraph
12 of the Complaint.
13.
Complaint.
14.
Complaint.
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15.
Complaint.
16.
Maywood Mart denies that it has intentionally demolished structures near or
adjacent to the Leased Premises as a for example of Plaintiffs allegations contained in

paragraph 15 of the Complaint. Maywood Mart denies any remaining allegations contained in
17.
Maywood Mart also denies that it has intentionally engaged in construction
activities to structures near or adjacent to the Leased Premises as an also for example of
Plaintiffs allegations contained in paragraph 15 of the Complaint. Maywood Mart denies any
remaining allegations contained in paragraph 17 of the Complaint.
18.
Complaint.
19.
Maywood Mart admits that is has offered to move Pizza Hut into the prime
location within the Shopping Center. Maywood Mart denies any other allegations contained in
20.
Maywood Mart admits that Pizza Hut made a written offer to Maywood Mart to
relocate to the prime location within the Shopping Center at a rental rate higher than what it
currently pays but also at a rental rate that is lower than the prime locations market value
leasable rate. Maywood Mart denies the remaining allegations contained in paragraph 20 of the
Complaint.
21.
Complaint.
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22.
Complaint.
23.
Complaint.
24.
Complaint.
25.
Complaint.
26.
Maywood Mart admits that it sent Plaintiff a termination letter on March 31,
2016. Maywood Mart denies this was a different bad faith tactic to persuade Pizza Hut to
relinquish its rights under the Lease.
27.
Maywood Mart admits the allegations contained in paragraph 27 of the
Complaint.
28.
Complaint.
29.
Complaint.
30.
Complaint.
31.
with the exceptions of an omitted to preceding the words Tenant notice and the omission of
the last sentence of 11.01(b).
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32.
Complaint.
33.
Complaint.
34.
Maywood Mart admits that the allegations contained in paragraph 34 of the
Complaint quote a portion of Section 11.02 of the Lease Agreement.

35.
Complaint.
36.
Complaint.
37.
Complaint.
38.
Maywood Mart admits it set the lease termination date for April 30, 2016, when
sending the March 31 Notice of Termination letter. Maywood Mart denies the remaining
allegations contained in paragraph 38 of the Complaint.
39.
Complaint.
40.
Complaint.
41.
Complaint.
42.
Maywood Mart admits that in its April 7, 2016 letter, Maywood Mart stated that
its contractor would enter the Leased Premises the next day, April 8 but denies the remaining
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allegations contained in paragraph 42 of the Complaint. Maywood Mart specifically states that
pursuant to the Lease Agreement it has the right of access to enter the Leased Premises at any
time to make repairs or additions.
43.
Complaint.
44.
Complaint.
45.
Maywood Mart denies the allegations contained in paragraphs 45 of the
Complaint.
Claim No. 1 Declaratory Judgment and Injunctive Relief
46.
Maywood Mart realleges and incorporates by reference the defenses set forth
above, including its responses to paragraphs 1-45 of the Complaint, as if fully stated here.
47.
Denied as stated. Maywood Mart has already terminated the Lease Agreement.
48.
Complaint.
49.
Complaint.
50.
Maywood Mart denies that Plaintiff is entitled to any of the relief requested in
paragraph 50 of the Complaint or in any of its subparts or to any relief whatsoever from
Maywood Mart.
Claim No. 2 Breach of Contract
51.
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52.
Complaint.
53.
54.
Complaint.
55.
Complaint.
56.
Maywood Mart denies the allegations contained in paragraph 56 of the Complaint
and further denies that Plaintiff has suffered any damages whatsoever.
Claim No. 3 Bad Faith Breach of Contract
57.
58.
Complaint.
59.
Complaint to the extent they are consistent with the terms of the Lease Agreement, but denies
any allegations that are inconsistent with the terms of the Lease Agreement.
60.
Complaint.
61.
Complaint.
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62.
Claim No. 4 Breach of Implied Covenant of Good Faith and Fair Dealing
63.
64.
Complaint.
65.
Maywood Mart admits the allegations in paragraph 65 of the Complaint.
66.
67.
Complaint.
68.
Complaint.
69.
Maywood Mart denies the allegations contained paragraph 69 of the Complaint
and further denies Plaintiff suffered any damages whatsoever.

Maywood Mart denies Plaintiff is entitled to any of the relief requested in the last
unnumbered paragraph beginning ACCORDINGLY and all of its subparts or to any relief
whatsoever from Maywood Mart. Maywood Mart is entitled to have this action against it
dismissed with prejudice and to recover its costs, fees, and expenses, including a reasonable
attorneys fee, and such other relief as the Court deems appropriate.
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COUNTERCLAIM FOR DECLARATORY JUDGMENT,

EJECTMENT, AND DAMAGES
Maywood Mart TEI Equities, LLC (Maywood Mart) files this Counterclaim for
Declaratory Judgment, Ejection, and Damages and respectfully requests a declaration from this
Court that the Lease Agreement between Maywood Mart and Pizza Hut of America, LLC
(Pizza Hut) permits Maywood Mart to terminate its lease with Pizza Hut. Maywood Mart
further requests a judgment from this Court that Pizza Hut must vacate the premises immediately
and a judgment for damages incurred as a result of Pizza Huts breach of the Lease Agreement
and failure to vacate.
PARTIES
1.
Maywood Mart is a Mississippi limited liability company with its principal place
of business located in New York. None of Maywood Marts members are citizens of California
or Texas.
2.
On information and belief, Pizza Hut is a Delaware limited liability company
authorized to do business in Mississippi whose sole member is Pizza Hut, Inc., which is
incorporated in California and has its principal place of business in Texas.
JURISDICTION
3.
This Court has jurisdiction pursuant to Fed. R. of Civ. P. 57 and 28 U.S.C.
1332, 2201, and 2202 as Maywood Mart seeks declaratory relief, the parties are diverse, and the
amount in controversy exceeds $75,000, exclusive of interest and costs.
4.
Venue is proper in this Court pursuant to 28 U.S.C. 1391 because a substantial
part of the events giving rise to the claims occurred in this district.
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FACTS
5.
On April 20, 2005, Maywood Mart I, LLC, as Lessor/Landlord, entered into a
Lease Agreement with NPC International, Inc., as Lessee/Tenant for the lease of a store in the
Maywood Mart Shopping Center in Jackson, Mississippi (Leased Premises). (Ex. A, Lease
Agreement). The Lease Agreement has since been assigned, and the current Lessor/Landlord is
Maywood Mart, and the current Lessee/Tenant is Pizza Hut.
6.
The Lease Agreement contained an initial term of 10 years, with Pizza Hut having
the option to renew the lease for 3 additional 5 year terms. (Ex. A, 1.05 of Lease Agreement
and Ex. B. to Lease Agreement). In 2015, Pizza Hut exercised its right to renew the Lease
Agreement for an additional 5 year term at an annual rental rate of $29,186.11, plus common
area maintenance, tax, and insurance charges. This 5 year term would expire on July 31, 2020.
7.
The Leased Premises are in need of significant repairs due to extreme structural
damage caused by highly expansive Yazoo Clay underneath the Maywood Mart Shopping
Center. (Shopping Center).
8.
The north wing of the Shopping Center, which includes Pizza Huts location, has
suffered the most extreme foundation movement caused by the highly expansive Yazoo Clay.
9.
One of the effects of the extreme foundation movement in the north wing is that
the east end of the building has heaved to a degree that it has removed the slope of the roof off of
which water used to run. As a result, water now ponds on the roof.
10.
Water ponding on the roof of the north wing creates a dangerous condition
involving the potential for a roof collapse.

11.
This dangerous condition is exemplified in a recent roof collapse that occurred
due to water ponding at Jackson Preparatory School. (Ex. B, News Articles).
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12.
Pursuant to 6.01 of the Lease Agreement, Maywood Mart is required to keep the
Leased Premises roof and foundation in good repair.

13.
However, the roof slope, foundation, and other structural components of the
Shopping Center cannot be corrected and kept in good repair with tenants in the north wing of
the Shopping Center.
14.
Rather, the extreme foundation movement caused by the highly expansive Yazoo
Clay has so substantially damaged the Shopping Center that demolition is necessary for purposes
of reconstruction and, indeed, portions of the Shopping Center have already been demolished for
this very purpose.
15.
In fact, on October 26, 2015, a structural engineer documented the significant
foundation problems on the west and north wing of the Shopping Center. (Ex. C, October 2015
Maxwell Engineering Structural Damage Report). The foundation problems were caused by
highly expansive Yazoo clay, and were so severe that portions of the Shopping Center have
already been demolished and are currently in the process of being reconstructed.
16.
On or about March 24, 2016, the same structural engineer visited the site and
confirmed that the foundation problems had extended to the space in the Shopping Center leased
by Pizza Hut, warning in his April 14, 2016 written report that [t]he most dangerous condition
appears to include all the rental spaces north of Hibbett Sports including the Pizza Hut space on
the north end. The danger involves the potential roof collapse from water ponding on the roof.
(Ex. D, April 2016 Maxwell Engineering Structural Damage Report).
17.
As recognized in the engineering report, the structural movement is causing
substantial damage to the Shopping Center and is adversely affecting the major systems and
components of the building. According to the report, the problems cannot be temporarily fixed,
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but instead require complete demolition of the affected portions of the Shopping Center,
including the space occupied by Pizza Hut, in order to stabilize the structure and return it to a
tenantable condition. Furthermore, the repairs are expected to take approximately eight months,
and should begin immediately to prevent irreparable harm to the property. Thus, as reported in
the April 2016 engineering report, the space leased by Pizza Hut currently is wholly
untenantable.
18.
Indeed, the locations leased by The Islander, Interior Spaces, AT&T, and Jackson
Jewelers, all former tenants that were located immediately north of Pizza Hut, have already been
demolished for reconstruction because of the substantial damage caused to the Shopping Center.
19.
Section 11.02 of the Lease Agreement provides:
In the event that twenty-five percent (25%) or more of the gross leasable floor
area of the Shopping Center of which the Leased Premises are a part shall be
damaged or destroyed by fire or other cause notwithstanding that the Leased
Premises may be unaffected by such fire or other cause, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within ninety (90)
days after said occurrence, to cancel and terminate this lease. Upon the giving of
such notice to Tenant, the term of this lease shall expire by lapse of time upon the
fifteenth (15th) day after such notice is given and Tenant shall vacate the Leased
Premises and surrender the same to Landlord. If the Shopping Center is so
substantially damaged that it is reasonably necessary, in Landlords judgment, to
demolish the Shopping Center for the purpose of reconstruction, Landlord may
demolish the same in which event the rent and other charges shall be abated as if
the Leased Premises were rendered untenantable by such casualty, and Landlord
may, at its option, cancel this Lease by giving written notice of cancellation to
Tenant.
20.
Additionally, Section 11.01(b) of the Lease Agreement states in part:
If the Leased Premises are (1) rendered wholly untenantable, or (2) damaged as a
result of any cause which is not covered by Landlords insurance or (3) damaged
in whole or in part during the last twenty-four (24) months of the term of this
lease, then in any such events, Landlord may terminate this lease by giving to
Tenant notice within ninety (90) days after the occurrence of such event.
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21.
Both Sections 11.01(b) and 11.02 entitle Maywood Mart to terminate the Lease
Agreement. Maywood Mart has complied with all conditions precedent to termination, and all
conditions necessary for termination are present.
22.
Accordingly, pursuant to Sections 11.01 and 11.02, on March 31, 2016, Maywood
Mart provided Pizza Hut notice of termination of the Lease Agreement effective April 30, 2016,
with rent to be adjusted to reflect the date of termination. (Ex. E, Notice of Termination
Letter). Maywood Mart further indicated that it would allow Pizza Hut an additional fifteen
days following the date of termination, or until May 15, 2016, to remove all property and finally
vacate the premises. The termination notice also informed Pizza Hut that Maywood Mart would
require access to the Leased Premises to implement temporary structural measures until Pizza
Hut fully vacated the premises.
23.
Despite receiving proper notice of lease termination and instructions to vacate the
premises, however, Pizza Hut has refused to vacate and continues to occupy the Leased Premises
to this day, in violation and breach of the Lease Agreement. As a result, Pizza Hut is currently a
tenant holding over without permission.
24.
Pursuant to Section 17.01 of the Lease Agreement, [u]nless otherwise agreed by
both parties, in the event Tenant remains in possession of the Leased Premises after the
expiration of this lease and without execution of a new lease, Tenant shall be deemed to be
occupying the Leased Premises as a tenant from month to month, at a rental equal to the rental
(including Minimum Guaranteed Rent, and other charges) herein provided plus one hundred
percent (100%) of such amount. (Ex. A, 17.01). Moreover, pursuant to Section 15.02 of
the Lease Agreement and other provisions, Maywood Mart is entitled to recover all damages
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resulting from Pizza Huts refusal to vacate the premises, including damages that have arisen and
may arise in the future as a result of Pizza Huts refusal to vacate the premises.
25.
Additionally, 2.04(a) of the Lease Agreement requires Pizza Hut to pay a late
charge of 5% plus interest at the highest rate permitted by law on rental payments that are more
than 10 days past due.
26.
Further, Section 15.03 of the Lease Agreement states that [i]n the event Tenant
defaults in the performance of any of the terms, covenants, or conditions contained in this lease
and Landlord places the enforcement of this lease, or any part thereof, or the collection of any
rental due or to become due hereunder, or the recovery of possession of the Leased Premises, in
the hands of an attorney, or files suit upon the same, Tenant agrees to pay to Landlord all cost of
suit and cost of enforcement of Landlords right hereunder.
27.
As a result of Pizza Huts unlawful refusal to vacate the premises and its breaches
of the Lease Agreement, Maywood Mart is entitled to recover damages, late charges, interest,
costs, and attorneys fees pursuant to Sections 17.01, 2.04(a), and 15.03 of the Lease Agreement.
COUNT I: DECLARATORY JUDGMENT
28.
Maywood Mart incorporates by reference the allegations contained in the
preceding paragraphs.
29.
Maywood Mart is entitled to terminate the Lease Agreement pursuant to Sections
11.01(b) and 11.02 of the Lease Agreement.

30.
Maywood Mart has complied with all conditions precedent to terminate the Lease
Agreement, and all conditions necessary for termination are present.

31.
Accordingly, Maywood Mart requests a declaratory judgment that it is entitled to
terminate the Lease Agreement pursuant to Sections 11.01(b) and 11.02.
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COUNT II: EJECTMENT

32.
33.
Maywood Mart has lawfully terminated its Lease Agreement with Pizza Hut.
34.
However, Pizza Hut unlawfully refuses to vacate the premises.
35.
Accordingly, Maywood Mart is entitled to a judgment and declaration requiring
Pizza Hut to immediately vacate the Leased Premises.

COUNT III: BREACH OF CONTRACT
36.
37.
The Lease Agreement is a valid and binding contract between Maywood Mart and
Pizza Hut.
38.
Pizza Hut has breached the Lease Agreement by failing to vacate the Leased
Premises as required.
39.
Accordingly, Maywood Mart is entitled to recover damages pursuant to Sections
17.01, 2.04(a), 15.02, and 15.03 of the Lease Agreement, among others.
WHEREFORE, PREMISES CONSIDERED, Maywood Mart respectfully requests the
following relief:
a) A declaratory judgment that Maywood Mart is entitled to terminate the Lease Agreement
pursuant to Sections 11.01(b) and 11.02 of the Lease Agreement;
b) A declaration and judgment requiring Pizza Hut to immediately vacate the Leased
Premises;
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c) A judgment for damages pursuant to Sections 17.01, 2.04(a), 15.02, and 15.03 of the
Lease Agreement, among others.
d) Maywood Mart requests such other relief as the Court deems just and proper.
THIS, the 22nd day of September, 2016.
Respectfully submitted,
MAYWOOD MART TEI EQUITIES,
INC.
By:
/s/ William D. Drinkwater

One of Its Attorneys
OF COUNSEL:
Matthew W. Allen (MSB No. 101605)
mwallen@brunini.com
William D. Drinkwater (MSB No. 103913)
wdrinkwater@brunini.com
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
Post Office Drawer 119
Jackson, Mississippi 39205-0119
Telephone: (601) 948-3101
Facsimile: (601) 960-6902
www.brunini.com
CERTIFICATE OF SERVICE
I, William D. Drinkwater, one of the attorneys for the Defendant, do hereby certify that I
have this day, electronically filed the foregoing document with the Clerk of the Court using the
CM/ECF system which will send notification of such filing to all counsel of record.
THIS, the 22nd day of September, 2016.

William D. Drinkwater
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Case 3:16-cv-00263-WHB-JCG Document 1-2 Filed 04/11/16 Page 1 of 2
Case 3:16-cv-00263-WHB-JCG Document 1-2 Filed 04/11/16 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT

NORTHERN DIVISION
PLAINTIFF
V.
CIVIL ACTION NO.: 3:16-cv-263-WHB-JCG
DEFENDANT
ANSWER, DEFENSES, AND COUNTERCLAIM OF

MAYWOOD MART TEI EQUITIES, INC.
Maywood Mart TEI Equities, LLC (Maywood Mart) answers Plaintiff Pizza Hut of
America, LLCs (Plaintiff or Pizza Hut) Complaint as follows:
First Defense
The Complaint fails to state a claim against Maywood Mart upon which relief may be
granted and therefore should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
Second Defense
The Court may lack subject matter jurisdiction.
Third Defense
Maywood Mart hereby reserves all other 12(b) defenses, and as discovery in this matter
continues, it will assert any other appropriate defense when it has a good faith basis for doing so.
Fourth Defense
Plaintiff failed to mitigate its alleged damages.
Fifth Defense
Plaintiffs alleged damages are not recoverable under applicable law.
02322203
Sixth Defense
Plaintiff suffered no damages actually or proximately caused by the actions or inactions
of Maywood Mart.
Seventh Defense
Maywood Mart asserts all defenses which may be available to it under Fed. R. Civ. P.
8(c).
Eighth Defense
Plaintiff failed to plead items of special damage with sufficient particularity as required
by Fed. R. Civ. P. 9(g).
Ninth Defense
Maywood Mart did not breach any legal duty allegedly owing to Plaintiff, did not breach
any alleged contractual obligation, and did not commit nor is it responsible for any act which
proximately caused or contributed to any actionable damages or harm to Plaintiff.
Tenth Defense
One or more of Plaintiffs claims are or may be barred by the doctrines of waiver,
estoppel, abandonment, relinquishment, and/or ratification.
Eleventh Defense
Maywood Mart pleads its satisfaction of the terms and conditions of the Lease
Agreement and that Plaintiffs claims are barred to the extent Plaintiff failed to comply with the
terms of the Lease Agreement or breached the Lease Agreement first.
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Twelfth Defense
Maywood Mart specifically pleads the provisions in Miss. Code Ann. 11-1-65 that limit
recovery of punitive damages.
Thirteenth Defense
An award of punitive damages against Maywood Mart would amount to a deprivation of
property without due process of law and a violation of the Fifth and Fourteenth Amendments to
the United States Constitution and applicable provisions of the Mississippi Constitution. The
criteria for determining whether and in what amount punitive damages may be awarded are
impermissibly vague, imprecise, and inconsistent and therefore are not in accord with, and are
antagonistic to, the protections of due process. In addition, any award of punitive damages
against Maywood Mart would violate the Eighth and Thirteenth Amendments to the United
States Constitution and the applicable provisions of the Mississippi Constitution.
Fourteenth Defense
Alternatively, Maywood Mart asserts that any award of punitive damages in which there
are not separate trials of liability and assessment of punitive damages would be unconstitutional
on the grounds that this failure to bifurcate would violate Maywood Marts constitutional rights
to due process under the Fifth and Fourteenth Amendments to the United States Constitution.
Accordingly, Maywood Mart asserts all rights preserved for it by Miss. Code Ann. 11-1-65.
Fifteenth Defense
Maywood Mart asserts that any award of punitive damages in which a heightened burden
of proof is not applied would violate its constitutional rights to due process under the Fifth and
Fourteenth Amendments to the United States Constitution.
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Sixteenth Defense
An award of punitive damages against Maywood Mart would violate Article 3, Section
14; Article 3, Section 22; and Article 3, Section 28 to the Mississippi Constitution.
Seventeenth Defense
Maywood Mart asserts that any award of punitive damages in which evidence of its
wealth is admitted into evidence, or which is disproportionate to awards of punitive damages
rendered against other defendants who commit similar alleged offenses resulting in similar
alleged injuries but who differ only in material wealth, would violate Maywood Marts
constitutional right to due process and equal protection of the law under the Fifth and Fourteenth
Amendments to the United States Constitution. Alternatively, these constitutional violations
would also take place if admission of any evidence touching upon the factors of Miss. Code Ann.
11-1-65 were not strictly limited to and relevant to the State of Mississippi.
Eighteenth Defense
Maywood Mart asserts that more than one penalty or award of punitive damages for the
same course of conduct would violate its constitutional right against double jeopardy as well as
its constitutional right to due process under the Fifth and Fourteenth Amendments to the United
States Constitution.
Nineteenth Defense
Maywood Mart asserts that any award of punitive damages that is excessive or
disproportionate to any award of actual damages would violate its constitutional right against
excessive punishment under the Eighth Amendment to the United States Constitution and further
asserts that any such award would violate its constitutional right to due process under the Fifth
and Fourteenth Amendments to the United States Constitution.
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Twentieth Defense
Maywood Mart intends to rely on all other affirmative defenses that may become
available or apparent during the course of discovery, and therefore reserve the right to amend its
Answer and Defenses to assert such defenses.
Twenty-First Defense
Maywood Mart answers the specific allegations in the Complaint, paragraph by
paragraph, as follows:
Parties
1.
Upon information and belief, Maywood Mart admits the allegations contained in

2.

Jurisdiction
3.

Venue
4.
Maywood Mart admits that venue is proper in this district. Maywood Mart denies
that it has committed any act that would give rise to a claim by Plaintiff.
Facts
5.
02322203
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6.
Maywood Mart admits that Exhibit A to the Complaint appears to contain an
accurate copy of Lease Agreement, with the exception of missing pages 5 and 6. Maywood Mart
7.
Maywood Mart admits Plaintiff is currently operating a Pizza Hut brand
restaurant on the premises that is at issue in this action but denies that Plaintiff is currently
operating the restaurant on the premises pursuant to the terms of the Lease Agreement.
8.
9.
10.
Complaint.
11.
Denied as stated. Maywood Mart admits that structural damage caused by highly
expansive Yazoo Clay has necessitated the reconstruction of significant portions of the Shopping
Center, and that recent, current, and further shifting of highly expansive Yazoo Clay will
necessitate further work in the future on other portions of the Shopping Center. Maywood Mart
12.
Maywood Mart admits that it is seeking new tenants for the Shopping Center in
places available for rent. Maywood Mart denies the remaining allegations contained in paragraph
12 of the Complaint.
13.
Complaint.
14.
Complaint.
02322203
-6-
15.
Complaint.
16.
Maywood Mart denies that it has intentionally demolished structures near or
adjacent to the Leased Premises as a for example of Plaintiffs allegations contained in

paragraph 15 of the Complaint. Maywood Mart denies any remaining allegations contained in
17.
Maywood Mart also denies that it has intentionally engaged in construction
activities to structures near or adjacent to the Leased Premises as an also for example of
Plaintiffs allegations contained in paragraph 15 of the Complaint. Maywood Mart denies any
remaining allegations contained in paragraph 17 of the Complaint.
18.
Complaint.
19.
Maywood Mart admits that is has offered to move Pizza Hut into the prime
location within the Shopping Center. Maywood Mart denies any other allegations contained in
20.
Maywood Mart admits that Pizza Hut made a written offer to Maywood Mart to
relocate to the prime location within the Shopping Center at a rental rate higher than what it
currently pays but also at a rental rate that is lower than the prime locations market value
leasable rate. Maywood Mart denies the remaining allegations contained in paragraph 20 of the
Complaint.
21.
Complaint.
02322203
-7-
22.
Complaint.
23.
Complaint.
24.
Complaint.
25.
Complaint.
26.
Maywood Mart admits that it sent Plaintiff a termination letter on March 31,
2016. Maywood Mart denies this was a different bad faith tactic to persuade Pizza Hut to
relinquish its rights under the Lease.
27.
Complaint.
28.
Complaint.
29.
Complaint.
30.
Complaint.
31.
with the exceptions of an omitted to preceding the words Tenant notice and the omission of
the last sentence of 11.01(b).
02322203
-8-
32.
Complaint.
33.
Complaint.
34.
Maywood Mart admits that the allegations contained in paragraph 34 of the
Complaint quote a portion of Section 11.02 of the Lease Agreement.

35.
Complaint.
36.
Complaint.
37.
Complaint.
38.
Maywood Mart admits it set the lease termination date for April 30, 2016, when
sending the March 31 Notice of Termination letter. Maywood Mart denies the remaining
allegations contained in paragraph 38 of the Complaint.
39.
Complaint.
40.
Complaint.
41.
Complaint.
42.
Maywood Mart admits that in its April 7, 2016 letter, Maywood Mart stated that
its contractor would enter the Leased Premises the next day, April 8 but denies the remaining
02322203
-9-
allegations contained in paragraph 42 of the Complaint. Maywood Mart specifically states that
pursuant to the Lease Agreement it has the right of access to enter the Leased Premises at any
time to make repairs or additions.
43.
Complaint.
44.
Complaint.
45.
Maywood Mart denies the allegations contained in paragraphs 45 of the
Complaint.
Claim No. 1 Declaratory Judgment and Injunctive Relief
46.
47.
Denied as stated. Maywood Mart has already terminated the Lease Agreement.
48.
Complaint.
49.
Complaint.
50.
Maywood Mart denies that Plaintiff is entitled to any of the relief requested in
paragraph 50 of the Complaint or in any of its subparts or to any relief whatsoever from
Maywood Mart.
Claim No. 2 Breach of Contract
51.
02322203
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52.
Complaint.
53.
54.
Complaint.
55.
Complaint.
56.
Claim No. 3 Bad Faith Breach of Contract
57.
58.
Complaint.
59.
Complaint to the extent they are consistent with the terms of the Lease Agreement, but denies
any allegations that are inconsistent with the terms of the Lease Agreement.
60.
Complaint.
61.
Complaint.
02322203
- 11 -
62.
Claim No. 4 Breach of Implied Covenant of Good Faith and Fair Dealing
63.
64.
Complaint.
65.
Maywood Mart admits the allegations in paragraph 65 of the Complaint.
66.
67.
Complaint.
68.
Complaint.
69.
Maywood Mart denies the allegations contained paragraph 69 of the Complaint
and further denies Plaintiff suffered any damages whatsoever.

Maywood Mart denies Plaintiff is entitled to any of the relief requested in the last
unnumbered paragraph beginning ACCORDINGLY and all of its subparts or to any relief
whatsoever from Maywood Mart. Maywood Mart is entitled to have this action against it
dismissed with prejudice and to recover its costs, fees, and expenses, including a reasonable
attorneys fee, and such other relief as the Court deems appropriate.
02322203
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COUNTERCLAIM FOR DECLARATORY JUDGMENT,

EJECTMENT, AND DAMAGES
Maywood Mart TEI Equities, LLC (Maywood Mart) files this Counterclaim for
Declaratory Judgment, Ejection, and Damages and respectfully requests a declaration from this
Court that the Lease Agreement between Maywood Mart and Pizza Hut of America, LLC
(Pizza Hut) permits Maywood Mart to terminate its lease with Pizza Hut. Maywood Mart
further requests a judgment from this Court that Pizza Hut must vacate the premises immediately
and a judgment for damages incurred as a result of Pizza Huts breach of the Lease Agreement
and failure to vacate.
PARTIES
1.
Maywood Mart is a Mississippi limited liability company with its principal place
of business located in New York. None of Maywood Marts members are citizens of California
or Texas.
2.
On information and belief, Pizza Hut is a Delaware limited liability company
authorized to do business in Mississippi whose sole member is Pizza Hut, Inc., which is
incorporated in California and has its principal place of business in Texas.
JURISDICTION
3.
This Court has jurisdiction pursuant to Fed. R. of Civ. P. 57 and 28 U.S.C.
1332, 2201, and 2202 as Maywood Mart seeks declaratory relief, the parties are diverse, and the
amount in controversy exceeds $75,000, exclusive of interest and costs.
4.
Venue is proper in this Court pursuant to 28 U.S.C. 1391 because a substantial
part of the events giving rise to the claims occurred in this district.
02322203
- 13 -
FACTS
5.
On April 20, 2005, Maywood Mart I, LLC, as Lessor/Landlord, entered into a
Lease Agreement with NPC International, Inc., as Lessee/Tenant for the lease of a store in the
Maywood Mart Shopping Center in Jackson, Mississippi (Leased Premises). (Ex. A, Lease
Agreement). The Lease Agreement has since been assigned, and the current Lessor/Landlord is
Maywood Mart, and the current Lessee/Tenant is Pizza Hut.
6.
The Lease Agreement contained an initial term of 10 years, with Pizza Hut having
the option to renew the lease for 3 additional 5 year terms. (Ex. A, 1.05 of Lease Agreement
and Ex. B. to Lease Agreement). In 2015, Pizza Hut exercised its right to renew the Lease
Agreement for an additional 5 year term at an annual rental rate of $29,186.11, plus common
area maintenance, tax, and insurance charges. This 5 year term would expire on July 31, 2020.
7.
The Leased Premises are in need of significant repairs due to extreme structural
damage caused by highly expansive Yazoo Clay underneath the Maywood Mart Shopping
Center. (Shopping Center).
8.
The north wing of the Shopping Center, which includes Pizza Huts location, has
suffered the most extreme foundation movement caused by the highly expansive Yazoo Clay.
9.
One of the effects of the extreme foundation movement in the north wing is that
the east end of the building has heaved to a degree that it has removed the slope of the roof off of
which water used to run. As a result, water now ponds on the roof.
10.
Water ponding on the roof of the north wing creates a dangerous condition
involving the potential for a roof collapse.

11.
This dangerous condition is exemplified in a recent roof collapse that occurred
due to water ponding at Jackson Preparatory School. (Ex. B, News Articles).
02322203
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12.
Pursuant to 6.01 of the Lease Agreement, Maywood Mart is required to keep the
Leased Premises roof and foundation in good repair.

13.
However, the roof slope, foundation, and other structural components of the
Shopping Center cannot be corrected and kept in good repair with tenants in the north wing of
the Shopping Center.
14.
Rather, the extreme foundation movement caused by the highly expansive Yazoo
Clay has so substantially damaged the Shopping Center that demolition is necessary for purposes
of reconstruction and, indeed, portions of the Shopping Center have already been demolished for
this very purpose.
15.
In fact, on October 26, 2015, a structural engineer documented the significant
foundation problems on the west and north wing of the Shopping Center. (Ex. C, October 2015
Maxwell Engineering Structural Damage Report). The foundation problems were caused by
highly expansive Yazoo clay, and were so severe that portions of the Shopping Center have
already been demolished and are currently in the process of being reconstructed.
16.
On or about March 24, 2016, the same structural engineer visited the site and
confirmed that the foundation problems had extended to the space in the Shopping Center leased
by Pizza Hut, warning in his April 14, 2016 written report that [t]he most dangerous condition
appears to include all the rental spaces north of Hibbett Sports including the Pizza Hut space on
the north end. The danger involves the potential roof collapse from water ponding on the roof.
(Ex. D, April 2016 Maxwell Engineering Structural Damage Report).
17.
As recognized in the engineering report, the structural movement is causing
substantial damage to the Shopping Center and is adversely affecting the major systems and
components of the building. According to the report, the problems cannot be temporarily fixed,
02322203
- 15 -
but instead require complete demolition of the affected portions of the Shopping Center,
including the space occupied by Pizza Hut, in order to stabilize the structure and return it to a
tenantable condition. Furthermore, the repairs are expected to take approximately eight months,
and should begin immediately to prevent irreparable harm to the property. Thus, as reported in
the April 2016 engineering report, the space leased by Pizza Hut currently is wholly
untenantable.
18.
Indeed, the locations leased by The Islander, Interior Spaces, AT&T, and Jackson
Jewelers, all former tenants that were located immediately north of Pizza Hut, have already been
demolished for reconstruction because of the substantial damage caused to the Shopping Center.
19.
Section 11.02 of the Lease Agreement provides:
In the event that twenty-five percent (25%) or more of the gross leasable floor
area of the Shopping Center of which the Leased Premises are a part shall be
damaged or destroyed by fire or other cause notwithstanding that the Leased
Premises may be unaffected by such fire or other cause, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within ninety (90)
days after said occurrence, to cancel and terminate this lease. Upon the giving of
such notice to Tenant, the term of this lease shall expire by lapse of time upon the
fifteenth (15th) day after such notice is given and Tenant shall vacate the Leased
Premises and surrender the same to Landlord. If the Shopping Center is so
substantially damaged that it is reasonably necessary, in Landlords judgment, to
demolish the Shopping Center for the purpose of reconstruction, Landlord may
demolish the same in which event the rent and other charges shall be abated as if
the Leased Premises were rendered untenantable by such casualty, and Landlord
may, at its option, cancel this Lease by giving written notice of cancellation to
Tenant.
20.
Additionally, Section 11.01(b) of the Lease Agreement states in part:
If the Leased Premises are (1) rendered wholly untenantable, or (2) damaged as a
result of any cause which is not covered by Landlords insurance or (3) damaged
in whole or in part during the last twenty-four (24) months of the term of this
lease, then in any such events, Landlord may terminate this lease by giving to
Tenant notice within ninety (90) days after the occurrence of such event.
02322203
- 16 -
21.
Both Sections 11.01(b) and 11.02 entitle Maywood Mart to terminate the Lease
Agreement. Maywood Mart has complied with all conditions precedent to termination, and all
conditions necessary for termination are present.
22.
Accordingly, pursuant to Sections 11.01 and 11.02, on March 31, 2016, Maywood
Mart provided Pizza Hut notice of termination of the Lease Agreement effective April 30, 2016,
with rent to be adjusted to reflect the date of termination. (Ex. E, Notice of Termination
Letter). Maywood Mart further indicated that it would allow Pizza Hut an additional fifteen
days following the date of termination, or until May 15, 2016, to remove all property and finally
vacate the premises. The termination notice also informed Pizza Hut that Maywood Mart would
require access to the Leased Premises to implement temporary structural measures until Pizza
Hut fully vacated the premises.
23.
Despite receiving proper notice of lease termination and instructions to vacate the
premises, however, Pizza Hut has refused to vacate and continues to occupy the Leased Premises
to this day, in violation and breach of the Lease Agreement. As a result, Pizza Hut is currently a
tenant holding over without permission.
24.
Pursuant to Section 17.01 of the Lease Agreement, [u]nless otherwise agreed by
both parties, in the event Tenant remains in possession of the Leased Premises after the
expiration of this lease and without execution of a new lease, Tenant shall be deemed to be
occupying the Leased Premises as a tenant from month to month, at a rental equal to the rental
(including Minimum Guaranteed Rent, and other charges) herein provided plus one hundred
percent (100%) of such amount. (Ex. A, 17.01).
02322203
- 17 -
25.
Additionally, 2.04(a) of the Lease Agreement requires Pizza Hut to pay a late
charge of 5% plus interest at the highest rate permitted by law on rental payments that are more
than 10 days past due.
26.
Further, Section 15.03 of the Lease Agreement states that [i]n the event Tenant
defaults in the performance of any of the terms, covenants, or conditions contained in this lease
and Landlord places the enforcement of this lease, or any part thereof, or the collection of any
rental due or to become due hereunder, or the recovery of possession of the Leased Premises, in
the hands of an attorney, or files suit upon the same, Tenant agrees to pay to Landlord all cost of
suit and cost of enforcement of Landlords right hereunder.
27.
As a result of Pizza Huts unlawful refusal to vacate the premises and its breaches
of the Lease Agreement, Maywood Mart is entitled to recover damages, late charges, interest,
costs, and attorneys fees pursuant to Sections 17.01, 2.04(a), and 15.03 of the Lease Agreement.
COUNT I: DECLARATORY JUDGMENT
28.
29.
Maywood Mart is entitled to terminate the Lease Agreement pursuant to Sections
11.01(b) and 11.02 of the Lease Agreement.

30.
Maywood Mart has complied with all conditions precedent to terminate the Lease
Agreement, and all conditions necessary for termination are present.

31.
Accordingly, Maywood Mart requests a declaratory judgment that it is entitled to
terminate the Lease Agreement pursuant to Sections 11.01(b) and 11.02.
02322203
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COUNT II: EJECTMENT

32.
33.
Maywood Mart has lawfully terminated its Lease Agreement with Pizza Hut.
34.
However, Pizza Hut unlawfully refuses to vacate the premises.
35.
Accordingly, Maywood Mart is entitled to a judgment and declaration requiring
Pizza Hut to immediately vacate the Leased Premises.

COUNT III: BREACH OF CONTRACT
36.
37.
The Lease Agreement is a valid and binding contract between Maywood Mart and
Pizza Hut.
38.
Pizza Hut has breached the Lease Agreement by failing to vacate the Leased
Premises as required.
39.
Accordingly, Maywood Mart is entitled to recover damages pursuant to Sections
17.01, 2.04(a), and 15.03 of the Lease Agreement.

WHEREFORE, PREMISES CONSIDERED, Maywood Mart respectfully requests the
following relief:
a) A declaratory judgment that Maywood Mart is entitled to terminate the Lease Agreement
pursuant to Sections 11.01(b) and 11.02 of the Lease Agreement;
b) A declaration and judgment requiring Pizza Hut to immediately vacate the Leased
Premises;
02322203
- 19 -
c) A judgment for damages pursuant to Sections 17.01, 2.04(a), and 15.03 of the Lease
Agreement.
d) Maywood Mart requests such other relief as the Court deems just and proper.
THIS, the 1st day of June, 2016.
MAYWOOD MART TEI EQUITIES,
INC.
By:

One of Its Attorneys
OF COUNSEL:
Matthew W. Allen (MSB No. 101605)
mwallen@brunini.com
William D. Drinkwater (MSB No. 103913)
wdrinkwater@brunini.com
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
Post Office Drawer 119
Jackson, Mississippi 39205-0119
Telephone: (601) 948-3101
Facsimile: (601) 960-6902
www.brunini.com
CERTIFICATE OF SERVICE
I, William D. Drinkwater, one of the attorneys for the Defendant, do hereby certify that I
have this day, electronically filed the foregoing document with the Clerk of the Court using the
CM/ECF system which will send notification of such filing to all counsel of record.
THIS, the 1st day of June, 2016.

William D. Drinkwater
02322203
- 20 -
UNITED STATES DISTRICT COURT

NORTHERN DIVISION
PLAINTIFF
v.
CAUSE NO. 3:16-cv-263-WHB-JCG
DEFENDANT
PIZZA HUT OF AMERICA, LLCS ANSWER TO COUNTERCLAIM FOR

DECLARATORY JUDGMENT, EJECTMENT, AND DAMAGES
Pizza Hut of America, LLC (Pizza Hut), files this Answer to Maywood Mart TEI
Equities, LLC (Maywood Mart)s Counterclaim for Declaratory Judgment, Ejectment, and
Damages, ECF Doc. 6.
Affirmative Defenses
1.
The Counterclaim fails to state a claim upon which relief can be granted against
Pizza Hut and should be dismissed as a matter of law.

2.
The doctrines of waiver, estoppel, unclean hands, and laches bar Maywood Marts
3.
Maywood Marts Counterclaim is barred by its own breach of the contracts and
claims.
promises at issue in this litigation as stated in Pizza Huts Complaint.

4.
Maywood Mart failed to mitigate its own damages.
5.
Pizza Hut reserves the right to amend this Answer to assert additional Affirmative
Defenses as additional facts are gathered in this action.
Answer
Pizza Hut denies the allegations in the first unnumbered paragraph and further denies that
Maywood Mart is entitled to a declaratory judgment, a judgment for ejectment or damages, or any
relief whatsoever.
Parties
1.
Upon information and belief, admitted.
2.
Admitted, except that Pizza Hut, Inc. merged with and into Pizza Hut, LLC, a
Delaware limited liability company, and Pizza Hut, LLC is now the sole member of Pizza Hut.
Jurisdiction
3.
Pizza Hut admits that jurisdiction is proper in this Court.
4.
Pizza Hut admits that venue is proper in this Court.

Facts
5.
The document referenced in sentence one of Paragraph 5 speaks for itself. To the
extent Paragraph 5 alleges anything further or inconsistent with that document, those allegations
are denied. Pizza Hut is without information or knowledge sufficient to form a belief as to the
remaining allegations in Paragraph 5 and therefore denies those allegations, except that Pizza Hut
admits that Maywood Mart is its landlord for certain space in the Maywood Mart Shopping Center
in Jackson, Mississippi.
6.
The document referenced in sentence one of Paragraph 6, including its exhibits,
speaks for itself. To the extent Paragraph 6 alleges anything further or inconsistent with that
document, those allegations are denied. Pizza Hut admits that it exercised its right to renew the
Lease for an additional five-year term, at a rental rate agreed to by the parties, which is set to expire
on July 31, 2020. All other allegations not expressly admitted herein are denied.
7.
Denied.
2
8.
Denied.
9.
Denied.
10.
Denied as stated.
11.
Pizza Hut is without information or knowledge sufficient to form a belief regarding
the allegations in Paragraph 11 and therefore denies those allegations. Pizza Hut additionally
denies the relevance of the unrelated events at a building several miles away from the subject
property.
12.
The document referenced in sentence one of Paragraph 12 speaks for itself. To
the extent Paragraph 12 alleges anything further or inconsistent with that document, those
allegations are denied.
13.
Denied.
14.
Denied.
15.
the allegation that a structural engineer visited on October 26, 2015, as stated in sentence one of
Paragraph 15, and therefore denies those allegations. Pizza Hut denies the remaining allegations
in Paragraph 15.
16.
the allegation that a structural engineer visited on March 24, 2016, and drafted a report, as stated in
sentence one of Paragraph 16, and therefore denies those allegations. Pizza Hut denies the
remaining allegations in Paragraph 16.
17.
Denied.
18.
Pizza Hut denies that there have been substantial damages to the Shopping Center.
Pizza Hut is without information or knowledge sufficient to form a belief regarding the remaining
allegations in Paragraph 18 and therefore denies those allegations.
3
19.
The document referenced in Paragraph 19 speaks for itself. To the extent
Paragraph 19 alleges anything further or inconsistent with that document, those allegations are
denied.
20.
denied.
21.
Denied
22.
Denied.
23.
Denied.
24.
denied. Pizza Hut denies the relevance of the language quoted in Paragraph 24.
25.
denied. Pizza Hut denies that Maywood Mart is entitled to a late fee, interest, or any amount
whatsoever.
26.
denied. Pizza Hut denies that Maywood Mart is entitled to any amount under the Lease
whatsoever.
27.
Denied.
Count I: Declaratory Judgment
28.
Pizza Hut incorporates the preceding paragraphs as if fully restated herein.
29.
Denied.
4
30.
Denied.
31.
Denied.
Count II: Ejectment
32.
33.
Denied.
34.
Denied.
35.
Denied.
Count III: Breach of Contract
36.
37.
Denied.
38.
Denied.
39.
Denied.
Pizza Hut denies the allegations in unnumbered paragraph beginning WHEREFORE,

PREMISES CONSIDERED, including its subparts, and any other allegation not specifically
admitted herein. Pizza Hut denies that Maywood Mart is entitled to a declaration that the Lease is
terminated and further denies that Maywood Mart is entitled to a judgment requiring Pizza Hut to
vacate the premises or to pay damages, or awarding Maywood Mart any relief whatsoever.
ACCORDINGLY, Plaintiff Pizza Hut of America, LLC, respectfully requests that
Maywood Marts Counterclaim be dismissed with prejudice and that judgment be entered in Pizza
Huts favor and against Maywood Mart and for such other and further relief to which it may be
entitled.
Dated: July 22, 2016.
By: /s/ Haley F. Gregory
Fred E. (Trey) Bourn (Miss. Bar No. 100067)
Brian Kimball (Miss. Bar No. 100787)
Haley F. Gregory (Miss. Bar No. 104532)
1020 Highland Colony Parkway, Suite 1400 (39157)
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
(T) 601-948-5711
(F) 601-985-4500
(E) trey.bourn@butlersnow.com
brian.kimball@butlersnow.com
haley.gregory@butlersnow.com
Attorneys for Pizza Hut of America, LLC
Certificate of Service
I hereby certify that I have this day filed the foregoing through the Courts Electronic Filing
System, which sent notification to all counsel of record.
Dated: July 22, 2016.
By: /s/ Haley F. Gregory
Haley F. Gregory
31975650v1

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Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT

CIVIL ACTION NO.: 3:16-cv-263-WHB-JCG

MAYWOOD MART TEI EQUITIES, LLC

FIRST AMENDED ANSWER, DEFENSES, AND COUNTERCLAIM OF

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 2 of 20

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 3 of 20

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 4 of 20

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 5 of 20

paragraph 1 of the Complaint.

Maywood Mart admits the allegations contained in paragraph 2 of the Complaint.

Maywood Mart admits the allegations contained in paragraph 3 of the Complaint.

Maywood Mart admits the allegations contained in paragraph 5 of the Complaint

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 6 of 20

Maywood Mart admits that Exhibit A to the Complaint appears to contain an

Maywood Mart admits Plaintiff is currently operating a Pizza Hut brand

Maywood Mart denies the allegations contained in paragraph 8 of the Complaint.

Maywood Mart denies the allegations contained in paragraph 9 of the Complaint.

Maywood Mart denies the allegations contained in paragraph 10 of the

Maywood Mart denies the allegations contained in paragraph 13 of the

Maywood Mart denies the allegations contained in paragraph 14 of the

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 7 of 20

Maywood Mart denies the allegations contained in paragraph 15 of the

Maywood Mart denies that it has intentionally demolished structures near or

adjacent to the Leased Premises as a for example of Plaintiffs allegations contained in

Maywood Mart also denies that it has intentionally engaged in construction

Maywood Mart denies the allegations contained in paragraph 18 of the

Maywood Mart denies the allegations contained in paragraph 21 of the

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 8 of 20

Maywood Mart denies the allegations contained in paragraph 22 of the

Maywood Mart denies the allegations contained in paragraph 23 of the

Maywood Mart denies the allegations contained in paragraph 24 of the

Maywood Mart denies the allegations contained in paragraph 25 of the

Maywood Mart admits the allegations contained in paragraph 27 of the

Maywood Mart admits the allegations contained in paragraph 28 of the

Maywood Mart admits the allegations contained in paragraph 29 of the

Maywood Mart admits the allegations contained in paragraph 30 of the

Maywood Mart admits the allegations contained in paragraph 31 of the Complaint

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 9 of 20

Maywood Mart denies the allegations contained in paragraph 32 of the

Maywood Mart denies the allegations contained in paragraph 33 of the

Maywood Mart admits that the allegations contained in paragraph 34 of the

Complaint quote a portion of Section 11.02 of the Lease Agreement.

Maywood Mart denies the allegations contained in paragraph 35 of the

Maywood Mart denies the allegations contained in paragraph 36 of the

Maywood Mart denies the allegations contained in paragraph 37 of the

Maywood Mart denies the allegations contained in paragraph 39 of the

Maywood Mart admits the allegations contained in paragraph 40 of the

Maywood Mart admits the allegations contained in paragraph 41 of the

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 10 of 20

Maywood Mart denies the allegations contained in paragraph 43 of the

Maywood Mart denies the allegations contained in paragraph 44 of the

Maywood Mart denies the allegations contained in paragraphs 45 of the

Maywood Mart denies the allegations contained in paragraph 48 of the

Maywood Mart denies the allegations contained in paragraph 49 of the

Case 3:16-cv-00263-WHB-JCG Document 44 Filed 09/22/16 Page 11 of 20

Maywood Mart admits the allegations contained in paragraph 52 of the

Maywood Mart admits the allegations contained in paragraph 53 of the Complaint

Maywood Mart denies the allegations contained in paragraph 54 of the

Maywood Mart denies the allegations contained in paragraph 55 of the

Maywood Mart denies the allegations contained in paragraph 56 of the Complaint

Maywood Mart admits the allegations contained in paragraph 58 of the

Maywood Mart admits the allegations contained in paragraph 59 of the

Maywood Mart denies the allegations contained in paragraph 60 of the