Case 3:06-cv-00288-HTW-LRA Document 7 Filed 07/05/2006 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

NICHOLAS COUGHLIN PLAINTIFF

VS. CIVIL ACTION NO. 3:06CV288-HTW-JCS

FRANKLINSQUIRES COMPANIES, LLC;

HILL ERICKSON, LLC AND C. RICK KOERBER DEFENDANTS

MEMORANDUM BRIEF IN SUPPORT OF MOTION TO CANCEL AND/OR

EXPUNGE LIS PENDENS NOTICE AND REQUEST FOR EXPEDITED
CONSIDERATION

COMES NOW Defendant Hill Erickson, LLC(“HE”), by counsel, and pursuant to Uniform

District Court Rule 7.2(H) files this Memorandum Brief in Support of Motion to Cancel and/or

Expunge Lis Pendens Notice and Request for Expedited Consideration and in support thereof states

the following:

I. Introduction and Facts.

Plaintiff Nicholas Coughlin (“Coughlin”) alleges that he was an agent of Defendant

FranklinSquires Companies, LLC (“FSC”) and that, in connection therewith, Coughlin approached

Mr. Jeff Brantley (“Brantley”) about purchasing his Clinton, MS home (“Brantley Property”).

Coughlin’s Complaint at paras. 14 and 15. Coughlin further alleges that he “negotiated a deal with

Jeff Brantley for the sale of his home” and that FSC subsequently purchased the Brantley Property

through HE, an entity Coughlin alleges is under the control of FSC. Coughlin’s Complaint at paras.

16 and 18. Coughlin also alleges that FSC has breached a contractual obligation to pay him a twenty-

five percent commission arising out of FSC’s purchase of the Brantley Property through HE.

Coughlin’s Complaint at paras.21-24.

At the time Coughlin filed his complaint in this matter, Coughlin also filed a Lis Pendens
 Case 3:06-cv-00288-HTW-LRA Document 7 Filed 07/05/2006 Page 2 of 4

Notice with the Hinds County Chancery Clerk in relation to the Brantley Property owned by HE. See

Exhibit A to HE’s motion and Exhibit C to HE’s Counter-Claim, a true and correct copy of HE’s

Warranty Deed to the Brantley Property, incorporated herein by reference pursuant to F.R.C.P. 10.

As will be demonstrated herein, Coughlin’s Lis Pendens Notice is improper and without ANY

justification under the law.

II. Argument.

A. Coughlin’s Lis Pendens Notice is improper because Coughlin merely seeks to obtain
a money judgment against the defendants arising out of FSC’s alleged breach of a contractual
obligation to pay him a real estate commission rather than to enforce a lien upon, right to, or interest
in the Brantley Property owned by HE.

Even if the allegations of Coughlin’s Complaint are true, which is denied by HE, the

Lis Pendens Notice filed by Coughlin in relation to the Brantley Property should be canceled and/or

expunged by this Court. Coughlin’s Complaint does not seek to enforce a lien upon, right to, or

interest in the Brantley Property. Rather, Coughlin seeks to obtain a money judgment against the

defendants arising out of FSC’s alleged breach of a contractual obligation to pay him a twenty-five

percent commission in relation to FSC’s alleged purchase of the Brantley Property through HE.

Under such circumstances, Coughlin’s Lis Pendens Notice has absolutely no basis in law and is

improper as a result. W.H. Hopper and Assoc. v. Dunaway, 396 So. 2d 43, 44-45 (Miss. 1981)(“lis

pendens may not be predicated on an action or suit merely to recover a personal or money judgment

unless and until a valid judgment has been secured and made a lien against the property”; “[i]t (a lis

pendens) does not apply to an action of trespass, or a suit for an accounting, or to any other action

or suit which does not directly affect property”); Lord v. Jeffreys, 205 S.E. 2d 563, 564 (N.C. Ct.

App. 1974)(in action to recover commissions due on sale of real estate and damages for breach of

-2-
 Case 3:06-cv-00288-HTW-LRA Document 7 Filed 07/05/2006 Page 3 of 4

contract, Court concluded that action was for personal judgment for payment of money, that lis

pendens notice was improper, and that trial court properly struck plaintiff’s lis pendens notice from

the property records as a result); 54 C.J.S. Lis Pendens § 11 (“The doctrine of lis pendens may not

be predicated on an action or suit seeking merely to recover a money judgment. An action for money

only, even if it relates in some way to specific real property, will not support a lis pendens.

Accordingly, where the primary purpose of a lawsuit is to recover damages and the action does not

directly affect title to or right of possession of real property, the filing of a notice of lis pendens is

inappropriate”).

B. Coughlin asserts that FSC, not HE, has a contractual obligation to pay Coughlin a
commission and therefore no legitimate basis exist upon which Coughlin could
conceivably file a valid lis pendens notice in relation to the Brantley Property owned
by HE.

Even if FSC has breached a contract with Coughlin, which is denied, there is no basis alleged

in Coughlin’s Complaint upon which HE could be found liable for a breach of contract to which it

is not a party. Warwick v. Matheney, 603 So. 2d 330,336 (Miss. 1992)(elements of breach of contract

are: (1) existence of valid and binding contract; (2) that defendant has broken or breached contract;

and (3) that plaintiff has been damaged thereby monetarily). Moreover, Coughlin has neither alleged

nor is there, in fact, any contract or statute that gives Coughlin a lien on the Brantley Property. See

Lord v. Jeffreys, 205 S.E. 2d 563, 564 (N.C. Ct. App. 1974). As a result, Coughlin merely seeks to

obtain a personal money judgment against the defendants arising out of a claimed contract with FSC.

Such a set of circumstances clearly do not support and/or justify the filing of Coughlin’s Lis Pendens

Notice in relation to the Brantley Property owned by HE.

III. Conclusion.

-3-
 Case 3:06-cv-00288-HTW-LRA Document 7 Filed 07/05/2006 Page 4 of 4

For the reasons set forth herein, as well as HE’s related motion, the Court should enter an

order that requires Coughlin and/or the Hinds County Chancery Clerk to cancel and/or expunge

Coughlin’s Lis Pendens Notice filed in relation to the Brantley Property owned by HE.

Respectfully submitted this the 5th day of July, 2006.

Defendant Hill Erickson, LLC

BY: s/Eddie J. Abdeen (MSB#9321)

ONE OF THEIR ATTORNEYS

ATTORNEYS FOR DEFENDANTS

FRANKLINSQUIRES COMPANIES, LLC
AND HILL ERICKSON, LLC:

EDDIE J. ABDEEN, ESQ. (MSB #9321)

Attorney at Law
Post Office Box 2134
Madison, Mississippi 39130
Telephone: 601-607-4750
Facsimile: 601-427-0040

R. PAUL RANDALL, JR., ESQ. (MSB # 99960)

Willoughby, McCraney & Randall, PLLC
451 Northpark Drive, Suite A
Ridgeland, Mississippi 39157
Telephone: 601-956-2615
Facsimile: 601-956-2642

CERTIFICATE OF SERVICE

I hereby certify that on July 5, 2007, I electronically filed the foregoing with the Clerk of

the Court using the ECF System which sent notification of such filing to the following:

Xavier M. Frascona, Jr.

J. Fredrick Ahrend
Matthew Hetzel
FRASCOGNA COURTNEY, PLLC
P. O. Box 23126
Jackson, MS 39225

s/Eddie J. Abdeen

-4-