Free Motion in Limine - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 [email protected] [email protected] Attorneys for Plaintiffs and Grant Woods, Esq. (#006106) GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Telephone: (602) 258-2599 Facsimile: (602) 258-5070 [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants

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Snell & Wilmer L.L.P.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, et al., Case No. CV-04-0384-PHX-ROS Plaintiffs, v. Greg Hancock, et al., Defendants. (Assigned to the Honorable Roslyn O. Silver) PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE EXPERT OPINION FROM HANCOCK'S ATTORNEYS

Meritage anticipates that Defendant Hancock will question his real estate attorneys, Jon Titus and Kurt Brueckner, to elicit testimony as experts about the legal meaning of "passive" versus "active" in the employment agreement. Meritage further anticipates that, despite Defendant Hancock's option entitling him to sixty percent ownership of Olympic Properties, Titus and Brueckner may be asked to opine that the option was "legal" and complied with the terms of the agreement. Lastly, attorneys Titus and Brueckner may be

Case 2:04-cv-00384-ROS

Document 608

Filed 09/15/2008

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

asked to opine about standards of "due diligence" in land acquisition. Neither attorney Titus nor attorney Brueckner were disclosed as experts. Prior to the Joint Proposed Pretrial Order and the close of discovery, Defendant Hancock did not disclose Mr. Brueckner at all as a witness. See Defendant Hancock's Rule 26(a)(1) Disclosures, dated 3/14/05, 5/20/08 and 6/2/08. Meritage would, in any event, be unduly prejudiced if Defendant Hancock questions Titus and Brueckner about matters that have not been disclosed before trial. Meritage would be unduly prejudiced by the complete lack of disclosure of Titus and Brueckner as experts ­ if they were permitted to offer any opinion testimony. The Federal Rules bar the admission of expert testimony not disclosed. Fed. R. Civ. Pro. 26(b). Moreover, if allowed and their corresponding testimony has any probative value at all, it is outweighed by the danger of confusing and misleading the jury that testimony from two attorneys can bolster Defendant Hancock's position that his role in Olympic was passive rather than active. See Rule 403, Fed.R.Evid. The testimony is also unnecessarily cumulative of testimony that Greg Hancock will presumably give during direct examination by his counsel. Id. CONCLUSION For the reasons set forth above, Meritage respectfully requests the Court enter an Order: · barring Defendant Hancock and his counsel from eliciting any testimony from Jon Titus and Kurt Brueckner concerning what was intended in the employment agreement by including the term "passive;" · barring Defendant Hancock and his counsel from eliciting any testimony from Jon Titus and Kurt Brueckner concerning the legal or other definition of "passive" versus "active" investment in real estate; and · barring Defendant Hancock and his counsel from eliciting any testimony from Jon Titus and Kurt Brueckner concerning their opinion of whether or not Hancock's investments were passive or active.

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 608- 2 - Filed 09/15/2008

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

RESPECTFULLY SUBMITTED this 15th day of September 2008. SNELL & WILMER L.L.P.

By s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Snell & Wilmer, L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Meritage and

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Case 2:04-cv-00384-ROS

Snell & Wilmer L.L.P.

By s/ Grant Woods Grant Woods, Esq. GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Attorneys for Meritage

CERTIFICATE OF SERVICE I hereby certify that on September 15, 2008, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants.

s/ Lindsey M. Perez
9107491.3

Document 608- 3 - Filed 09/15/2008

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