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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

SOUTHEASTERN BOLL WEEVIL ) 

ERADICATION FOUNDATION, ) 

 ) 

 Plaintiff, ) 

v. ) Civil Action No. CV-06-756-MHT 

 ) 

BOLL WEEVIL ERADICATION ) 

FOUNDATION OF GEORGIA, INC.; ) 

TOMMY IRVIN in his capacity as ) 

TRUSTEE OF BOLL WEEVIL ) 

ERADICATION FOUNDATION ) 

OF GEORGIA, INC. ) 

 ) 

 Defendants. ) 

____________________________________) 

 

SOUTHEASTERN BOLL WEEVIL ERADICATION FOUNDATION’S

ANSWER TO COUNTER-CLAIM OF

BOLL WEEVIL ERADICATION FOUNDATION OF GEORGIA, INC.

 COMES NOW the Plaintiff/Counterclaim Defendant, Southeastern Boll Weevil 

Eradication Foundation (hereinafter “Southeastern Foundation”) and for Answer to the 

Counterclaim of Defendant/Counterclaim Plaintiff, Boll Weevil Eradication Foundation of 

Georgia, Inc. (hereinafter “Georgia Foundation”) states as follows: 

PARTIES 

1. Pursuant to the Secretary of State for Georgia, the principal office for Georgia 

Foundation is at 243 Agriculture Building, Atlanta, Georgia 30334. Southeastern Foundation 

admits the rest and remaining material allegations contained in paragraph 1 of Georgia 

Foundation’s Counterclaim. 

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2. Southeastern Foundation denies the material allegations contained in paragraph 2 

of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

3. Southeastern Foundation’s principal place of business has moved to Tallassee, 

Tallapoosa County, Alabama. Southeastern Foundation admits the rest and remaining material 

allegations contained in paragraph 3 of Georgia Foundation’s Counterclaim. 

4. Southeastern Foundation admits the material allegations contained in paragraph 4 

of Georgia Foundation’s Counterclaim. 

5. Southeastern Foundation admits the material allegations contained in paragraph 5 

of Georgia Foundation’s Counterclaim. 

6. Southeastern Foundation denies the material allegations contained in paragraph 6 

of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

JURISDICTION 

7. Southeastern Foundation admits the material allegations contained in paragraph 7 

of Georgia Foundation’s Counterclaim. 

8. Southeastern Foundation admits the material allegations contained in paragraph 8 

of Georgia Foundation’s Counterclaim. 

9. Southeastern Foundation admits the material allegations contained in paragraph 9 

of Georgia Foundation’s Counterclaim. 

10. Southeastern Foundation denies that the quoted provisions of the 1997 agreement 

are the only source of obligation for the Georgia Foundation to provide funds to the Southeastern 

Foundation. The Southeastern Foundation admits that cited provisions from the 1997 agreement 

are properly quoted. 

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11. Southeastern Foundation denies the material allegations contained in paragraph 

11 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

12. Southeastern Foundation denies the material allegations contained in paragraph 

12 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

13. Southeastern Foundation denies the material allegations contained in paragraph 

13 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

14. Southeastern Foundation has insufficient information to either admit or deny the 

material allegations contained in paragraph 14 of Georgia Foundation’s Counterclaim. 

15. Southeastern Foundation has insufficient information to either admit or deny the 

material allegations contained in paragraph 15 of Georgia Foundation’s Counterclaim. 

16. Southeastern Foundation denies the material allegations contained in paragraph 

16 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

17. Southeastern Foundation denies the material allegations contained in paragraph 

17 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

18. Southeastern Foundation denies the material allegations contained in paragraph 

18 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

19. Southeastern Foundation denies the material allegations contained in paragraph 

19 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

20. Southeastern Foundation denies the material allegations contained in paragraph 

20 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

21. Southeastern Foundation denies the material allegations contained in paragraph 

21 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

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22. Southeastern Foundation denies the material allegations contained in paragraph 

22 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

23. Southeastern Foundation denies the material allegations contained in paragraph 

23 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

24. Southeastern Foundation denies the material allegations contained in paragraph 

24 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

25. Southeastern Foundation denies the material allegations contained in paragraph 

25 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

26. Southeastern Foundation denies the material allegations contained in paragraph 

26 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

27. Southeastern Foundation denies the material allegations contained in paragraph 

27 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

28. Southeastern Foundation denies the material allegations contained in paragraph 

28 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

29. Southeastern Foundation denies the material allegations contained in paragraph 

29 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

30. Southeastern Foundation denies the material allegations contained in paragraph 

30 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

31. Southeastern Foundation denies the material allegations contained in paragraph 

31 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

32. Southeastern Foundation denies the material allegations contained in paragraph 

32 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

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33. Southeastern Foundation denies the material allegations contained in paragraph 

33 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

34. Southeastern Foundation denies the material allegations contained in paragraph 

34 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

35. Southeastern Foundation denies the material allegations contained in paragraph 

35 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

36. Southeastern Foundation denies that it has objected to the Georgia Foundation 

properly withdrawing from the Southeastern Foundation, per the terms of the 1997 agreement. 

The Southeastern Foundation has objected to the Georgia Foundation withdrawing without 

paying its obligations, properly giving notice and complying with all of the terms and conditions 

of withdrawal. 

37. Southeastern Foundation denies the material allegations contained in paragraph 

37 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

38. Southeastern Foundation denies the material allegations contained in paragraph 

38 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

COUNT I 

39. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

40. Southeastern Foundation admits the material allegations contained in paragraph 

40 of Georgia Foundation’s Counterclaim. 

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41. Southeastern Foundation denies the material allegations contained in paragraph 

41 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

42. Southeastern Foundation denies the material allegations contained in paragraph 

42 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

43. Southeastern Foundation denies the material allegations contained in paragraph 

43 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

COUNT II 

44. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

45. Southeastern Foundation denies the material allegations contained in paragraph 

45 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

46. Southeastern Foundation denies the material allegations contained in paragraph 

46 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

47. Southeastern Foundation denies the material allegations contained in paragraph 

47 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

48. Southeastern Foundation denies the material allegations contained in paragraph 

48 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

49. Southeastern Foundation denies the material allegations contained in paragraph 

49 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

50. Southeastern Foundation denies the material allegations contained in paragraph 

50 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

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51. Southeastern Foundation denies the material allegations contained in paragraph 

51 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

COUNT III 

52. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

53. Southeastern Foundation denies the material allegations contained in paragraph 

53 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

54. Southeastern Foundation denies the material allegations contained in paragraph 

54 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

55. Southeastern Foundation denies the material allegations contained in paragraph 

55 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

56. Southeastern Foundation denies the material allegations contained in paragraph 

56 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

COUNT IV 

57. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

58. Southeastern Foundation denies the material allegations contained in paragraph 

58 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

59. Southeastern Foundation denies the material allegations contained in paragraph 

59 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

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COUNT V 

60. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

61. Southeastern Foundation denies the material allegations contained in paragraph 

61 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

62. Southeastern Foundation denies the material allegations contained in paragraph 

62 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

63. Southeastern Foundation denies the material allegations contained in paragraph 

63 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

64. Southeastern Foundation denies the material allegations contained in paragraph 

64 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

65. Paragraph 65 of Georgia Foundation’s Counterclaim is a prayer for relief and, 

thus, requires no response from Southeastern Foundation. However, if an answer is deemed 

necessary, Southeastern Foundation denies any and all material allegations set forth in paragraph 

65 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

COUNT VI 

66. Southeastern Foundation adopts and incorporates each and every preceding 

answer, response and denial to Georgia Foundation’s allegations, separately and severally, as if 

specifically set forth herein. 

67. Southeastern Foundation denies the material allegations contained in paragraph 

67 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

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68. Southeastern Foundation denies the material allegations contained in paragraph 

68 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

69. Southeastern Foundation denies the material allegations contained in paragraph 

69 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

70. Southeastern Foundation denies the material allegations contained in paragraph 

70 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

71. Paragraph 71 of Georgia Foundation’s Counterclaim is a prayer for relief and, 

thus, requires no response from Southeastern Foundation. However, if an answer is deemed 

necessary, Southeastern Foundation denies any and all material allegations set forth in paragraph 

71 of Georgia Foundation’s Counterclaim and demands strict proof thereof. 

 The last paragraph and subsections thereto, of Georgia Foundation’s Counterclaim is a 

prayer for relief and, thus, requires no response from Southeastern Foundation. However, if an 

answer is deemed necessary, Southeastern Foundation denies any and all material allegations set 

forth in the last paragraph of Georgia Foundation’s Counterclaim, together with the subsections 

thereto, and demands strict proof thereof. 

72. Southeastern Foundation pleads not guilty. 

73. Southeastern Foundation denies that it was guilty of any breach of fiduciary duty. 

74. Southeastern Foundation denies that it was guilty of any breach of contract. 

75. Southeastern Foundation denies that it was guilty of any misrepresentation. 

76. Southeastern Foundation denies that it was guilty of conversion. 

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77. Southeastern Foundation denies that it was guilty of misappropriating money or 

misspending money. 

FIRST DEFENSE

 Georgia Foundation’s Counterclaim fails to state a claim upon which relief can be 

granted against Southeastern Foundation.

SECOND DEFENSE

 Georgia Foundation has failed to mitigate its injuries and damages, if any. 

THIRD DEFENSE

 The Southeastern Foundation pleads that the Georgia Foundation lacked justifiable 

reliance. 

FOURTH DEFENSE

 Georgia Foundation assumed the risk of the injuries and damages, if any, complained of 

in the Counterclaim filed herein which would also bar recovery against Southeastern Foundation. 

 

FIFTH DEFENSE

 Southeastern Foundation’s conduct was not the proximate cause of any injuries and 

damages to Georgia Foundation. 

 

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SIXTH DEFENSE

 Georgia Foundation’s injuries and damages, if any, are the result of an independent 

intervening cause. 

SEVENTH DEFENSE

 Georgia Foundation’s claims, in part or in whole, are barred by the applicable Statute of 

Limitations. 

EIGHTH DEFENSE

 Southeastern Foundation pleads the general issue. 

NINTH DEFENSE

 Southeastern Foundation pleads the defense of justification. 

TENTH DEFENSE

 Southeastern Foundation pleads the defenses of laches, waiver, and estoppel. 

ELEVENTH DEFENSE

 Southeastern Foundation pleads the defense of impossibility. 

TWELFTH DEFENSE

 Southeastern Foundation pleads the equitable defense of unclean hands. 

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THIRTEENTH DEFENSE

 Southeastern Foundation pleads the defense of noncompliance by Georgia Foundation. 

FOURTEENTH DEFENSE

Southeastern Foundation pleads the provisions and terms of the contract between the 

parties. 

FIFTEENTH DEFENSE

Southeastern Foundation pleads prior breach by Georgia Foundation. 

SIXTEENTH DEFENSE

 The Southeastern Foundation pleads that the Georgia Foundation did not reasonably rely 

upon any alleged misrepresentation. 

SEVENTEENTH DEFENSE

Southeastern Foundation pleads accord and satisfaction. 

EIGHTEENTH DEFENSE

Any claims made by the Georgia Foundation are offset and superseded by those claims 

made by the Southeastern Foundation. 

 

NINETHEENTH DEFENSE

Southeastern Foundation pleads failure of consideration. 

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TWENTIETH DEFENSE

Southeastern Foundation pleads the failure of a condition precedent or subsequent. 

TWENTY-FIRST DEFENSE

 To the extent Georgia Foundation’s claims may invoke punitive damages, they violate 

the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the United 

States, on the following grounds: 

(a) It is a violation of the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment of the United States Constitution to impose 

punitive damages, which are penal in nature, against a civil defendant 

upon the Plaintiffs’ satisfying a burden of proof which is less than the 

"beyond a reasonable doubt" burden of proof required in criminal cases; 

(b) The procedures pursuant to which punitive damages are awarded may 

result in the award of joint and several judgments against multiple 

defendants for different alleged acts of wrongdoing, which infringes the 

Due Process and Equal Protection Clauses of the Fourteenth Amendment 

of the United States Constitution; 

(c) The procedures pursuant to which punitive damages are awarded fail to 

provide a reasonable limit on the amount of the award against This 

Defendant, which thereby violates the Due Process Clause of the 

Fourteenth Amendment of the United States Constitution. 

(d) The procedures pursuant to which punitive damages are awarded fail to 

provide specific standards for the amount of the award of punitive 

damages which thereby violates the Due Process Clause of the Fourteenth 

Amendment of the United States Constitution; 

(e) The procedures pursuant to which punitive damages are awarded result in 

the imposition of different penalties for the same or similar acts and, thus, 

violate the Equal Protection Clause of the Fourteenth Amendment of the 

United States Constitution; 

(f) The procedures pursuant to which punitive damages are awarded permit 

the imposition of punitive damages in excess of the maximum criminal 

fine for the same or similar conduct, which thereby infringes the Due 

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Process Clause of the Fifth and Fourteenth Amendments and the Equal 

Protection Clause of the Fourteenth Amendment of the United States 

Constitution; and, 

(g) The procedure pursuant to which punitive damages are awarded permit the 

imposition of excessive fines in violation of the Eighth Amendment of the 

United States Constitution. 

(h) The Plaintiffs’ claim of punitive damages violates the due process clause 

of Article I, Section 6 of the Constitution of Alabama, on the following 

grounds: 

(1) It is a violation of the due process clause to impose punitive 

damages which are penal in nature, upon a civil defendant upon the 

Plaintiffs’ satisfying a burden of proof less than the "beyond a 

reasonable doubt" burden of proof required in criminal cases; 

(2) The procedures pursuant to which punitive damages are 

awarded fail to provide a limit on the amount of the award against 

This Defendant; 

(3) The procedures pursuant to which punitive damages are 

awarded are unconstitutionally vague; 

(4) The procedures pursuant to which punitive damages are 

awarded fail to provide specific standards for the amount of the 

award of punitive damages; and, 

(5) The award of the punitive damages in this case constituted 

a deprivation of property without due process of law. 

(i) The Plaintiffs’ attempt to impose punitive or extra-contractual damages on 

This Defendant, on the basis of vicarious liability for the conduct of 

others, violates the Fifth, Eighth, and Fourteenth Amendments of the 

United States Constitution. 

(j) The award of punitive damages to the Plaintiff in this action would 

constitute a deprivation of property without due process of law required 

under the Fifth and Fourteenth Amendments of the United States 

Constitution. 

(k) The procedures pursuant to which punitive damages are awarded permit 

the imposition of an excessive fine in violation of Article I, Section 15, of 

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the Constitution of Alabama. 

(l) The award of punitive damages against This Defendant in this action 

would violate the prohibition against laws that impair the obligations of 

contracts in violation of Article I, Section 22 of the Constitution of 

Alabama. 

(m) The procedures pursuant to which punitive damages are awarded permit 

the imposition of punitive damages in excess of the amount established by 

the legislature under Ala. Code, Section 27-1-17 (1975), in violation of the 

Due Process Clause of the Fifth and Fourteenth Amendments of the U. S. 

Constitution and Article, Section 6, of the Alabama Constitution. 

TWENTY-SECOND DEFENSE

 To the extent that Georgia Foundation’s Counterclaim seeks to make Southeastern 

Foundation liable for punitive damages. The United States Supreme Court has reversed the 

Alabama Supreme Court in the case styled BMW of North America, Inc. v. Gore, 116 S.Ct. 

1589 (1996) on the issues of punitive damages. Southeastern Foundation adopts by reference 

whatever defenses, criteria, limitations, and standards as mandated by the United States Supreme 

Court decision in that case. 

 

TWENTY-THIRD DEFENSE

 Southeastern Foundation pleads that any punitive damages that the Georgia Foundation 

may recover in this case should be capped in keeping with Alabama Code Section 6-11-21 and in 

the spirit of the Alabama Supreme Court’s recent decision in Oliver v. Towns, 1970312 Al. Sup. 

Ct.1999 WL14675 (Ala.). 

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TWENTY-FOURTH DEFENSE

 Plaintiffs’ demand for punitive damages is due to be struck because, on May 14, 2001, 

the United States Supreme Court released its decision in Cooper Industries, Inc. v. Leatherman 

Tool Group, Inc. 532 U.S. 424 (2001), holding that the amount of punitive damages, “is not 

really a fact ‘tried’ by the jury,” and the right to jury trial is therefore not implicated. The court 

pointed to a fundamental difference between compensatory and punitive damages. Whereas 

compensatory damages are “essentially a factual determination,” punitive damages are “an 

expression of moral condemnation” that essentially constitutes a conclusion of law. The court 

cited the Eighth Amendment in explaining that constitutional excessiveness protections apply to 

both criminal and civil punishments. 

 Such punishments should be determined by courts as a matter of law, rather than by juries 

as a matter of fact. 

TWENTY-FIFTH DEFENSE

 Southeastern Foundation pleads lack of standing. 

TWENTY-SIXTH DEFENSE

 Southeastern Foundation pleads truth as a defense to Georgia Foundation’s allegations 

that false representations were made to them by Southeastern Foundation. 

TWENTY-SEVENTH DEFENSE

 Southeastern Foundation asserts breach of contract on behalf of Georgia Foundation. 

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TWENTY-EIGHTH DEFENSE

 Southeastern Foundation pleads unjust enrichment on behalf of Georgia Foundation. 

TWENTY-NINTH DEFENSE 

 Southeastern Foundation pleads its claim for money owed by Georgia Foundation. 

THIRTIETH DEFENSE

 Southeastern Foundation pleads breach of fiduciary duty on behalf of Georgia 

Foundation. 

THIRTY-FIRST DEFENSE

Southeastern Foundation reserves the right to plead such other defenses and 

counterclaims as may become apparent or available during the course of litigation. 

 

 Respectfully submitted this the 11th day of October, 2006. 

 

____/s/_Mitch Henry_______________ 

D. MITCHELL HENRY (HEN046) 

Attorney for Plaintiff 

OF COUNSEL: 

WEBSTER, HENRY, LYONS & WHITE, P.C. 

Post Office Box 239 

Montgomery, Alabama 36101-0239 

Telephone: (334) 264-9472 

Facsimile: (334) 264-9599 

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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the above and foregoing pleading on counsel 

as follows by ECF or by placing same in the U.S. Mail, properly addressed and first-class 

postage prepaid on this the 11th day of October, 2006. 

Tommy Irvin 

Georgia Commissioner of Agriculture 

19 Martin Luther King Dr., SW 

Atlanta, GA 30334 

Duke R. Groover 

Groover & Childs 

William H. Noland 

P.O. Box 898 

Macon, Georgia 31202 

Jerry A. Buchanan 

Benjamin A. Land 

Buchanan & Land, LLP 

P. O. Box 2848 

Columbus, Georgia 31902 

Simeon F. Penton 

Kaufman & Rothfeder, P.C. 

P. O. Drawer 4540 

Montgomery, Alabama 36102 

_____/s/ Mitch Henry_______________ 

OF COUNSEL 

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