IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

BLANCHE W BELL,

Plaintiff,

vs.

THE EPISCOPAL CHURCH HOME,

D/B/A/ BISHOP GADSDEN RETIREMENT

COMMUNITY,

Defendant.

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C.A. NO. 2:05-1953-DCN-RSC

REPLY TO COUNTERCLAIMS

The Plaintiff, Blanche W. Bell, replying to the Counterclaims of Defendant, The Episcopal Church Home,1 d/b/a Bishop Gadsden Retirement Community, states as follows:

AS A FIRST DEFENSE AS TO ALL CAUSES OF ACTION

1. All matters not specifically admitted herein shall be deemed denied.

2.	In response to paragraph 77, Plaintiff is unable to identify what parts of the Answer and Defendant's allegations "may be pertinent to" to Counterclaims and therefore denies all matter in paragraphs 1-76 that does not admit allegations in the complaint.

3. In response to paragraph 78, Plaintiff admits this court has jurisdiction over the parties, but, except to the extent that the Counterclaims seek declaratory relief under federal statutes, Plaintiff denies the allegation regarding subject matter jurisdiction. .

4. Plaintiff admits paragraphs 79 and 80.

5. Replying to paragraphs 81 through 84, Plaintiff admits the accuracy of Answer Exhibit A, the "Residence and Services Agreement"(hereafter referred to as "Agreement") and craves reference to the Exhibit for an exact restatement of its language. Plaintiff denies any implication that the recited language is valid, binding, or enforceable to the extent that it is inconsistent with Plaintiff's civil rights.

6. Plaintiff denies paragraph 85, especially to the extent that it refers to provisions and terms inconsistent with Plaintiff's civil rights.

7. Plaintiff admits paragraph 86.

8. Responding to paragraph 87, Plaintiff admits that the Defendant conducted an "assessment" of Plaintiff and reached the stated result, but denies that the assessment was thoughtful, careful, or followed extensive consultation with Plaintiff, her family, or her attending physicians, and further denies that transfer to the Health Care Center was or is appropriate. In further response, Plaintiff states that Defendant's assessment applied standards and criteria that discriminate based on disability or handicap in violation of Plaintiff's civil rights, summarily rejected the wishes and opinions of Plaintiff, her family and physicians, and denied Plaintiff reasonable accommodation to her disability.

9. Responding to paragraph 88, Plaintiff denies that she was "required" to surrender her apartment and transfer to the Health Care Center because any such requirement would be invalid and unenforceable under civil rights laws. Plaintiff admits the remaining allegations of paragraph 88.

10. Paragraphs 89 and 91 are an assertion of law and request for its application.

11. Paragraph 90 is an incorporation of previous allegations by reference and Plaintiff incorporates her prior responses.

12. In response to paragraph 92, Plaintiff admits the parties executed the Agreement but denies that any terms inconsistent with civil rights laws are binding, valid, or enforceable.

13. Plaintiff denies that Defendant is entitled to the relief requested in paragraphs 93, 94 and 95. In further response to paragraph 94, Plaintiff states that civil rights laws cannot be waived by private contract.

14. Responding to paragraph 96, Plaintiff specifically denies that she is in breach of any lawful provision of the "Agreement" and denies the remaining allegations of the said paragraph.

15. Paragraph 97 is an incorporation of previous allegations by reference and Plaintiff incorporates her prior responses.

16. Plaintiff denies paragraph 98 to the extent that the "Agreement" as written or applied is inconsistent with civil rights laws.

17. In response to paragraph 99, Plaintiff admits that contracts under South Carolina law contain an implied covenant of good faith and fair dealing, but denies that the "Agreement" is binding, valid, or enforceable to the extent that it, as written or applied, is inconsistent with civil rights laws.

18. Plaintiff denies paragraph 100.

19. Replying to paragraph 101, Plaintiff admits to signing the "Agreement" (whose terms are set forth on Exhibit A of the Answer) and admits that Defendant made the transfer decision. Plaintiff denies all remaining allegations and specifically denies that the decision was in good faith or reasonable or in Plaintiff's best interests, or that it reflected consultation with Plaintiff, her family, and physicians, in that the wishes and opinions of all other interested parties were summarily rejected. In further response to the said paragraph, Plaintiff states that she was unaware when she signed the "Agreement" that certain terms violated civil rights laws and she did not and could not have anticipated that Defendant would apply such terms so as to force her from her home when she was not, in the opinion of herself, her family, or any treating physician, in need of nursing home confinement.

20. Replying to paragraphs 102 and 103, Plaintiff admits that she has not surrendered her apartment or transferred, but denies that her refusal was or is unjustified, or that such action is required under, or that she is in breach of, any lawful provision of the Agreement.

21. Plaintiff denies paragraph 104 and 105, and affirmatively states that Plaintiff filed this action prior to the deadline given to her by Defendant after which Defendant claimed it could terminate the Agreement, but to date the Defendant has not terminated the Agreement and has consented to Plaintiff remaining in place pendente lite.

22. Plaintiff denies paragraph 106 and any right to the relief requested in paragraph 107.

23. Plaintiff denies that Defendant is entitled to the relief requested in paragraph 108.

24. Paragraph 107 is an incorporation of previous allegations by reference and Plaintiff incorporates her prior responses.

AS A SECOND DEFENSE AS TO ALL CAUSES OF ACTION

(Violation of Federal Law)

25. The terms of the "Agreement" relied upon by Defendant, as written and as implemented, are invalid, void, and unenforceable because they violate the Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., as stated in Plaintiff's Complaint.

AS A THIRD DEFENSE AS TO ALL CAUSES OF ACTION

(Violation of State Law)

26. The terms of the "Agreement" relied upon by Defendant, as written and as implemented, are invalid, void, and unenforceable because they violate the South Carolina Fair Housing Act, S.C. Code Ann. §§ 31-21-10 et seq., and the South Carolina Human Affairs Law, S.C. Code Ann. § 43-33-10 et seq., as stated in Plaintiff's Complaint.

AS A FOURTH DEFENSE AS TO ALL CAUSES OF ACTION

(Violation of Public Policy)

27. The terms of the "Agreement" relied upon by Defendant, as written and as implemented, are invalid, void, and unenforceable because they violate the public policy of the United States and of the State of South Carolina in discriminating against people with disabilities or handicaps in unreasonably segregating and restricting them, in denying them accommodations to enable them to enjoy opportunities that would be available but for their handicaps or disabilities, and in overriding their legal rights to make choices affecting their own lives absent a formal finding of incompetence with appropriate due process protections in a court of competent jurisdiction.

AS A FIFTH DEFENSE - TO STATE LAW CAUSES OF ACTION

(Breach of Fiduciary Duties)

28. The "Agreement" was drafted by Defendant and imposes upon Defendant a duty to act solely in Plaintiff's best interests in making transfer decisions. Defendant has failed to do so in that it has failed to show how Plaintiff would be better off in its nursing home unit and claims the unilateral right to make such decisions without regard to the desires or opinions of Plaintiff, her family, or her physicians.

AS A SIXTH DEFENSE - TO CLAIM FOR SPECIFIC PERFORMANCE

29. Defendant has unclean hands.

WHEREFORE, Plaintiff, having fully replied to Defendant's Counterclaims, respectfully requests that this court enter an order dismissing Defendant's Counterclaims with prejudice and awarding Plaintiff all relief requested in her complaint.

Respectfully Submitted,

s/ Harriet McBryde Johnson

HARRIET McBRYDE JOHNSON, Esq.

Federal ID No 2192

171 Church Street, Suite 160

Charleston SC 29401

(843) 722-0178

JOHN R POLITO, Esq.

Federal ID No 3081

1325 Pherigo St

Mt Pleasant SC 29464

(843) 849-9721

Susan Ann Silverstein, Esq.

Pro hac vice

AARP FOUNDATION LITIGATION

601 E. Street, NW, Rm A4-140

Washington DC 20049

(202) 434-2159

ATTORNEYS FOR THE PLAINTIFF

Date: August 3, 2005