Free Response to Motion - 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 When Plaintiffs disclosed homebuyers, Mario Atkins and Kelly Brassfield, as trial witnesses, Plaintiffs did so with complete regard for the Court's July 3, 2007 Order (Item # 503) and its dismissal "in part" of Plaintiffs' unfair competition claim. See Order at 16:18-19 (dismissing only the association confusion claim). In the usual fashion, PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF MARIO ATKINS AND KELLY BRASSFIELD (Assigned to the Honorable Roslyn O. Silver)

Defendant Greg Hancock has taken unacceptable liberties with the record, including the

Case 2:04-cv-00384-ROS

Document 533

Filed 09/11/2007

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

Court's July 3, 2007 Order, to block Atkins and Brassfield from testifying. Moreover, Hancock has taken a position fundamentally at odds with the Court's ruling. Atkins and Brassfield are two consumers who shopped at and bought property from Rick Hancock Homes ("RHH"). See Atkins Decl., Exhibit 1 hereto; Brassfield Decl., Exhibit 2 hereto. Defendant Greg Hancock licensed, promoted and funded RHH, aiding and abetting it. See Joint Proposed Pretrial Order, Section E(1)(g) at 8:26 to 9:13 and Section G (16.4 to 16.9.4) (Item # 528). RHH in turn advertised, marketed and sold homes in a way that misled Atkins and Brassfield that they were buying a home from Plaintiffs (i.e., Meritage as the source). See Exhibit 1 at ¶¶ 9 to 13; Exhibit 2 ¶¶ 1 to 8; see also Joint Proposed Pretrial Order, Sections E(1)(l), (m) and (o); Section G (¶¶ 16.9.1 to 19.9.4) and Section Q, Joint Proposed Jury Instructions, at pp. 64, 66 to 71, 79 to 82. (Item # 528). Accordingly, the evidence tends to prove the confusion and misrepresentation elements the trade dress and false advertising claims under the Lanham Act and the palming-off claim under state law. See Fed. R. Evid. 401. It also tends to prove that Greg Hancock tortiously interfered with Meritage contracting with Atkins, Brassfield and other homebuyers. Id. Furthermore, under the reasoning of MJ & Partners Restaurant Ltd. Partnership v. Zadikoff, 10 F.Supp.2d 922, 928 (N.D. Ill. 1998), while an exclusive licensee has no claim under the Lanham Act for confusion as to the licensor as the source, "`an exclusive licensee of the mark has a legitimate claim that its licensing agreement has been violated.'" Order at 17:19 to 18:3 (quoting MJ & Partners) (July 3, 2007) (Item #503). Accordingly, Atkins' and Brassfield's testimony tend to prove the fact of injury from Greg Hancock's breach of contract and breach of the implied covenant of good faith and fair dealing. See Fed. R. Evid. 401. Defendant has instead sought to exclude the entirety of testimony from two material witnesses on the false presumption that Plaintiffs are trying to prove a claim that the Court dismissed. This "shotgun" approach to excluding evidence fails to meet the test
Case 2:04-cv-00384-ROS Document 533- 2 - Filed 09/11/2007 Page 2 of 4

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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

for an in limine ruling to in any way limit otherwise relevant and admissible testimony. See FTC v. Freecom Comm., Inc., 401 F.3d 1192, 1204 n. 7 (10th Cir. 2005) ("a motion in limine should be used `as a rifle and not as a shotgun'"), quoting Lewis v. Buena Vista Mut. Ins. Assoc., 183 N.W.2d 198, 201 (Iowa 1971). In sum, Hancock's Motion simply misses the point. The fact that Atkins and Brassfield will have testimony tending to prove that consumers confused the mark "Rick Hancock Homes" with the mark "Hancock Communities" is admissible with respect to the breach of contract and breach of the implied covenant of good faith and fair dealing claims against Greg Hancock. MJ & Partners, 10 F.Supp.2d at 928; Order at 17:19 to 18:3 (July 3, 2007) (Item #503). Even if the Court's ruling on the MJ & Partners case were to bar such evidence, which it does not, such a ruling does not mean that Atkins and Brassfield cannot testify on other issues. They will testify as to misrepresentations and omissions that led to

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Snell & Wilmer L.L.P.

confusion between RHH and Meritage relevant under other theories, noted above. See Joint Proposed Pretrial Order, Sections E(1)(l), E(1)(m) and E(1)(o) and Section G (16.9.1 to 19.9.4). They can distinctly explain how they were deceived by false advertising while touring RHH in Buckeye. They can separately establish that RHH palmed off its

properties as Meritage Hancock Communities. Brassfield can independently talk about the misrepresentations that led her to believe that Meritage's Sundance community center was included when she purchased a house from RHH. Atkins and Brassfield, therefore, have relevant and admissible testimony in support of viable claims. The Court should accordingly deny Defendant's motion in limine.

Case 2:04-cv-00384-ROS

Document 533- 3 - Filed 09/11/2007

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

RESPECTFULLY SUBMITTED this 11th day of September, 2007. SNELL & WILMER L.L.P. By s/ Richard G. Erickson 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 By s/ Grant Woods Grant Woods, Esq. GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Attorneys for Meritage

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Case 2:04-cv-00384-ROS Document 533- 4 - Filed 09/11/2007 Page 4 of 4

Snell & Wilmer L.L.P.

CERTIFICATE OF SERVICE I hereby certify that on September 11, 2007, 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 the following CM/ECF registrants: Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix, AZ 85020 Attorneys for Greg Hancock Kenneth J. Sherk Timothy J. Burke Fennemore Craig, P.C. 3003 N. Central Ave. Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendant Snell & Wilmer, L.L.P. in State Court Action _/s/ Deborah Yanazzo_
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