Free Crossclaim - District Court of Arizona - Arizona

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Dow Glenn Ostlund, Esq. State Bar No. 002909
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys for Tegan Communities, Inc., American West Communities, LLC and Andrew Welch

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Humphreys & Partners Architects, L.P.,
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Plaintiff, No. CIV 03-0169 PHX SMM vs. George F. Tibsherany, Inc.; et al., Defendants. ________________________________________ Tegan Communities, Inc.; American West Communities, L.L.C. and Andrew Welch, Crossclaimants, vs. George F. Tibsherany, Inc.; George F. Tibsherany, Crossdefendants. TEGAN AND WELCH'S REPLY TO GREYSTONE'S CROSSCLAIM AND CROSSCLAIM AGAINST GEORGE F. TIBSHERANY, INC.

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Tegan Communities, Inc. (Tegan) and Andrew Welch (Welch) reply to the Greystone Crossclaim as follows: 1. 2. Admitted upon information and belief. Admitted upon information and belief. Admitted upon information and belief. Admitted upon information and belief. Admitted upon information and belief. Admitted, upon information and belief. Admitted upon information and belief. Admitted upon information and belief. No copy of the "Settlement Agreement" referred to by Greystone in its

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3. 4. 5. 6. 7. 8.

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9.

Crossclaim is attached to the Crossclaim and, therefore, it is impossible to answer this allegation with the exception only that these Defendants admit that a Settlement Agreement was entered into between the parties. 10. No copy of the "Deed in Lieu" referred to by Greystone in its Crossclaim is

attached to the Crossclaim and, therefore, it is impossible to answer this allegation with the exception only that these Defendants admit that a Deed In Lieu was entered into

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between the parties. 11. The Settlement Agreement and Deed in Lieu are the best evidence of their

own terms and conditions and any allegations of the Crossclaim not in strict accordance with those documents is expressly denied.

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COUNT I (Indemnity) 12. The allegations of Paragraphs 1 through 11 above are admitted or denied as

hereinbefore admitted or denied.
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13.

The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 14. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied.

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15.

The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 16. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 17. The Settlement Agreement is the best evidence of its own terms and

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conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 18. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied.

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19.

The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 20. The Deed in Lieu is the best evidence of its own terms and conditions and

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any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 21. The Deed in Lieu is the best evidence of its own terms and conditions and

any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 22. The Deed in Lieu is the best evidence of its own terms and conditions and

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any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 23. The Deed in Lieu is the best evidence of its own terms and conditions and

any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 24. Denied. COUNT II (Breach of Contract) 25. The allegations of Paragraphs 1 through 24 above are admitted or denied as

hereinbefore admitted or denied. 26. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied.

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27.

The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 28. The Settlement Agreement is the best evidence of its own terms and

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conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 29. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 30. The Settlement Agreement is the best evidence of its own terms and

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conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 31. The Settlement Agreement is the best evidence of its own terms and

conditions and any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 32. The Deed in Lieu is the best evidence of its own terms and conditions and

any allegations of the Crossclaim not in strict harmony with that document is expressly
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denied. 33. The Deed in Lieu is the best evidence of its own terms and conditions and

any allegations of the Crossclaim not in strict harmony with that document is expressly denied.

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34.

The Deed in Lieu is the best evidence of its own terms and conditions and

any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 35. The Deed in Lieu is the best evidence of its own terms and conditions and

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any allegations of the Crossclaim not in strict harmony with that document is expressly denied. 36. 37. Denied. Denied. COUNT III (Common Law Indemnity)

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38.

The allegations of Paragraphs 1 through 37 above are admitted or denied as

hereinbefore admitted or denied. 39. 40. 41. 42. 43. Denied as to the allegations against Tegan and Welch. Denied as to the allegations against Tegan and Welch Denied as to the allegations against Tegan and Welch. Denied as to the allegations against Tegan and Welch. Admitted. Denied. Denied. AFFIRMATIVE DEFENSES 46. The Crossclaim fails to state a claim against Tegan or Welch and,

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44. 45.

accordingly, must be dismissed.

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47.

Tegan and Welch incorporate the affirmative defenses and Counterclaims

filed in this matter by all Defendants with respect to Plaintiff's claims against them as though fully set forth hereinafter. WHEREFORE, having fully answered the allegations of Greystone's Crossclaim,

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Tegan and Welch demand judgment as follows with respect to this Crossclaim: A. An Order of this Court that neither Tegan nor Welch is directly or

vicariously liable to Plaintiff under any legal theory set forth within Plaintiff's Amended Complaint as to them. B. Welch. The dismissal, with prejudice, of Greystone's Crossclaim as to Tegan and

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C.

The recovery of Tegan and Welch's reasonable attorneys' fees and court

costs incurred in connection with this Crossclaim as allowed by law. D. For such other and further relief as the Court deems just and proper under

the circumstances. CROSSCLAIM For its Crossclaim against Co-Defendant George F. Tibsherany, Inc. (GFT), Tegan alleges as follows:

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1.

GFT, Inc. is an Arizona corporation, with its principal place of business

located within Maricopa County, Arizona, and the District of this Court. 2. Tegan is an Arizona not-for-profit corporation with its principal place of

business located within Maricopa County, Arizona, and within the District of this Court. 3. On or about March 31, 2000, Tegan and GFT entered into that certain

"Standard Form Of Agreement Between Owner and Architect For Housing Services"
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with respect to a project described thereon as a "238-Unit (five unit types, one building type) plus one recreation/office building, pool/ramada area, attached garages in Mesa" (the contract). COUNT I

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(Breach of Contract) 4. The allegations of Paragraphs 1 through 3 above are incorporated herein by

this reference as though fully reproduced hereat. 5. The contract, at Article 6.1, provides that, unless otherwise provided, the

architect (GFT) is deemed to be the author of the drawings, specifications and other documents provided by the architect under the contract and that the architect shall retain

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all common law, statutory and other rights, including the copyright, to all such work. 6. Plaintiff HPA claims that GFT infringed HPA's existing copyright

protections when GFT prepared the drawings, specifications and other documents GFT prepared for Tegan pursuant to the contract. 7. GFT denies that it has committed any act of infringement as alleged by

HPA in HPA's Complaints filed in this action and has filed its own Counterclaim against HPA alleging that HPA's alleged copyright protected works themselves are an

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infringement of GFT's copyright protected works. 8. If HPA is correct, and GFT did infringe HPA's copyright protections, then

GFT will have breached its contract with Tegan. 9. If HPA is correct and GFT did infringe HPA's copyright protected

materials, and Tegan is found liable to HPA for an infringement of HPA's copy right protections, GFT will have breached its contract with Tegan.

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10.

Tegan is entitled to recover from GFT all damages suffered by Tegan as a

direct result of GFT's breach of its contract with Tegan, whether such damages are incurred in favor of HPA, Colliers, ICON Builders, the Greystone parties or other persons or parties who are presently, or have previously been, parties in this litigation.

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11.

This action arises out of an express contract and, accordingly, Tegan is

entitled to recover its reasonable attorneys' fees and court costs incurred in connection with its defense of the claims made against it in this action, as well as its prosecution of its Crossclaims against Cross-Defendants in this action, together with its costs and interest as allowed by law. WHEREFORE, Tegan demands judgment against Cross-Defendant George F.

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Tibsherany, Inc. as follows: E. If the GFT Defendants are found to have infringed any of HPA's copyright

protected works, GFT will have breached its contact with Tegan and, accordingly, Tegan is entitled to an Order of this Court declaring that GFT has breached its contract with Tegan. F. In the event GFT has breached its contract with Tegan, and Tegan suffers

damages thereby, whether in the form of a Judgment imposed against Tegan by HPA,
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Colliers, ICON Builders, the Greystone parties, etc., then such damages form the basis of Tegan's damages claim and award against GFT. G. A judgment of breach of contract, or in the alternative, for indemnity,

against GFT and in favor of Tegan in an amount equal to all of the Judgments entered herein, if any, against Tegan.

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H.

The recovery of Tegan's reasonable attorneys' fees and court costs incurred

in connection with its defense and/or prosecution of its Crossclaims in connection with this matter, together with interest thereon at the highest lawful rate available from the date of the entry of such Judgment until fully paid.

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I.

For such other and further relief as the Court deems just and proper under

the circumstances. RESPECTFULLY SUBMITTED this ______ day of June, 2006. TIFFANY & BOSCO, P.A.

By

Dow Glenn Ostlund Dow Glenn Ostlund, Esq. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Attorneys for Tegan Defendants

X I hereby certify that on the 5th day of June, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kathleen L Beiermeister [email protected]; [email protected],[email protected] Mark A Bloomquist [email protected] [email protected],[email protected] Guy William Bluff [email protected] [email protected] Louis K Bonham [email protected] John D Everroad [email protected] [email protected]
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Case 2:03-cv-00169-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Joseph E. Mais [email protected]; [email protected]; [email protected] Scott Sebastian Minder [email protected]; [email protected]; [email protected] Monty Lee Greek [email protected]; [email protected]

Ray Kendall Harris [email protected] [email protected] Christopher DC Hossack [email protected] [email protected] Edward Albert Kenney [email protected]
C. Mark Kittredge [email protected]; [email protected]; [email protected]

Joseph W Mott [email protected] [email protected] Jimmie W Pursell, Jr [email protected] [email protected],[email protected] Joseph A Schenk [email protected] [email protected],[email protected] Richard W Shapiro [email protected] [email protected] Deborah F Sirias [email protected] [email protected],[email protected] William C Steffin [email protected] [email protected],[email protected] Barry Harris Uhrman [email protected] [email protected],[email protected] Kurt M Zitzer [email protected] [email protected],[email protected]
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Case 2:03-cv-00169-SMM

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Patrick Zummo [email protected]; [email protected] I hereby certify that on the 5th day of June, 2006, I served the X attached document by United States ail on the following, who are not registered participants of the CM/ECF System: Wayne Michael Flood Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington, Ste 1100 Phoenix, AZ 85004-2385 Paul L Mitchell Mayer Brown Rowe & Maw LLP 700 Louisiana St, Ste 3600 Houston, TX 77002-2730 John Henri Toohey Bremer & Whyte 20320 SW Birch St 2nd Floor Newport Beach, CA 92660 By s/Donna Hamel Donna Hamel

9269.005/307234.doc

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