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. Ricky Lee Hancock, et al., Defendants. AND RELATED COUNTERCLAIMS AND THIRD PARTY CLAIMS This motion in limine addresses the testimony of Elaine or Eileen Carlson,1 which Defendant Hancock recently disclosed. Her testimony should be excluded in its entirety because it is not relevant to any issue in the case. Fed. R. Evid. 401 and 402. In any respect, her anticipated testimony about Meritage's repeated settlement offers to Defendant Hancock should be excluded not only on relevancy grounds but also because In Exhibit 1, Defendant Hancock calls the witness Elaine Carlson. In Exhibit 2, he calls her Eileen Carlson. Meritage believes her name is Eileen Carlson.
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PLAINTIFFS' MOTION IN LIMINE RE TESTIMONY OF ELAINE CARLSON (Assigned to the Honorable Roslyn O. Silver)

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Case 2:04-cv-00384-ROS

Document 564

Filed 06/10/2008

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

offers of compromise are inadmissible. Fed. R. Evid. 401, 402, and 408.2 Two weeks ago, on May 20, 2008, Defendant Hancock disclosed that "Ms. Carlson is expected to testify regarding statements in the nature of admissions of a party opponent made to her at the Meritage shareholders' meeting on May 15, 2008, by CEO Steven Hilton and General Counsel Timothy White." Exhibit 1. While Defendant Hancock did not disclose the precise "admissions" he intends to introduce through Ms. Carlson in the Disclosure, in another lawsuit recently filed by Defendant Hancock in Arizona state court, he did. On May 22, 2008, Mr. Hancock filed a complaint in Maricopa County Superior Court against Meritage and its General Counsel Timothy White. Exhibit 2. There, Defendant Hancock alleges that he was defamed because Ms. Carlson allegedly heard Mr. White state that Greg Hancock is a liar and a blowhard; is crazy; and engages in malicious litigation. Id. at ¶ 10. Defendant Hancock further alleged that Ms. Carlson heard Mr. White state that Meritage will probably get nothing from the lawsuit and that Meritage has been trying to get out of the case but Hancock will not let it do so. Id. at ¶ 11. As to Mr. Hilton, Defendant Hancock alleged that Ms. Carlson asked Mr. Hilton questions and he referred her to Mr. White. Id. at 9. Meritage will reserve for a later time (1) whether Mr. White made these statements; (2) whether alleged statements such as Greg Hancock is a liar and blowhard or engages in malicious litigation are true; and (3) whether Meritage had made walk-away offers more than two years ago that Defendant Hancock rejected and, instead, countered with demands in excess of $15 million (even though this Court had dismissed all of Defendant Greg Hancock's claims with prejudice by that point in time). Meritage moves at this time for the exclusion at the jury trial of the entirety of Ms. Carlson's testimony because what Mr. White may or may not have said at an Annual Shareholders meeting in 2008 is not relevant to any issue of consequence related to the presentation to jury in this case. The issues of consequence in this case involve events in 2001 and 2004, not 2008. 2 To the extent that the timing of this Motion in light of the timing of the Disclosure requires a Motion for Leave, Meritage so moves for the reasons explained herein.
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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 564- 2 - Filed 06/10/2008

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

Furthermore, the statements reflecting settlement negotiations are specifically precluded under the Rules of Evidence, regardless of their purported relevancy. . MS. CARLSON'S TESTIMONY IS NOT RELEVANT The entirety of Ms. Carlson's testimony is not relevant and therefore not admissible. Rule 401 provides: "'Relevant evidence' means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Irrelevant evidence is not admissible. Fed. R. Evid. 402. The 2008 statements of a party's General Counsel in the context of a shareholders' meeting in response to questions of a shareholder (and former longtime employee of Defendant Hancock) does not tend to "make the existence of any fact that is of consequence to the determination of the action more probable or less probable." The 2008 statements do not tend to establish whether Defendant Hancock engaged in the 2001 secret Olympic venture to effectively steal millions of dollars of assets from Meritage or not nor tend to establish whether Defendant Hancock intentionally sabotaged Meritage's land supply to cause Meritage tens of millions of dollars in damages or not. That holds true for all of the events in 2001 that are the subject of this litigation. The alleged 2008 statements do not tend to prove whether Defendant Hancock's fitful and unilateral termination of the License Agreement in February 2004 and his efforts on behalf of and as part of Rick Hancock Homes in 2004 and 2005 were breaches of his contractual and fiduciary duties to Meritage or not. That holds true for all of the events surrounding the breach of the License Agreement and Rick Hancock Homes. Accordingly, Ms. Carlson's testimony is inadmissible.3 Furthermore, Ms. Carlson's testimony about ancillary and irrelevant statements many years after the Mr. White's lay opinion testimony that he formed an opinion based on his many dealings and discussions with Defendant Hancock as well as many of Defendant Hancock's business associates in the homebuilding industry is a liar is admissible to impeach Defendant Hancock, who will be testifying before the jury. See Fed. R. Evid. 608(a) ("[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation"). Should at a later time there be an application for attorneys' fees and/or costs by either side, facts showing whether Defendant Hancock negotiated in good faith (e.g., Mr. White's testimony about the negotiations) are relevant and admissible to that determination. See Fed. R. Evid. 408 ("permitted uses").
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Snell & Wilmer L.L.P.

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

facts at issue took place will only expand the scope of trial and waste judicial resources as well as the Court's and jurors' time. . MS. CARLSON'S TESTIMONY ABOUT SETTLEMENT IS INADMISSIBLE FOR ADDITIONAL REASONS Assuming arguendo that the entirety of Ms. Carlson's testimony is not barred, Ms. Carlson's testimony with respect to Meritage's "attempt[s] to compromise the claim" and Defendant Hancock's negotiating position is still not admissible at the jury trial. Rule 408(a) provides: a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim[.] Fed R. Evid. 408(a) (emphasis added). While Defendant Hancock's Disclosure does not designate the purpose of Ms. Carlson's testimony, the Rule's bar to admissibility is broad (i.e., any issue of liability, invalidity of a claim, amount of a claim and impeachment), and Ms. Carlson's testimony is clearly within its scope. Accordingly, Ms. Carlson's testimony about statements with respect to "attempting to compromise the claim" are not admissible. . CONCLUSION Accordingly, Meritage requests an order in limine barring the testimony of Ms. Carlson and Defendants and their counsel from making any reference to the purported 2008 statements or the subject matter of Ms. Carlson's testimony. RESPECTFULLY SUBMITTED this 10th day of June, 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
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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 564- 4 - Filed 06/10/2008

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

and

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 June 10th, 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.

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Snell & Wilmer L.L.P.

s/ Lindsey M. Perez
2032431

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Case 2:04-cv-00384-ROS

Document 564- 5 - Filed 06/10/2008

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