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 Plaintiffs move to exclude all references at trial, by witnesses or by attorneys during argument, to Rick and Brenda Hancock's (collectively, "Rick Hancock") attempted purchase of the Madrid home, to Brenda Hancock's pregnancy and to the substance and gist of Rick Hancock's counterclaims that this Court has dismissed on summary judgment. Rick Hancock had asserted counterclaims primarily relating to Madrid, and Defendant Greg Hancock has proffered testimony about the Madrid-related claims. First (Assigned to the Honorable Roslyn O. Silver) PLAINTIFFS' MOTION IN LIMINE RE: RICK HANCOCK'S COUNTERCLAIMS

Case 2:04-cv-00384-ROS

Document 514

Filed 08/20/2007

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

Counterclaim of Rick and Brenda Hancock at ¶¶ 13-96, 114-142 (Sept. 5, 2006) (Item # 342). In addition, Rick Hancock had included one count for wrongful termination and in which he alleged that his termination was retaliatory. Id. at ¶¶ 97-113. The wrongful termination count included sensational and unproven allegations against Meritage's Chief of Operations, Jim Arneson, and another Meritage employee, Glen Gittus. Id. at ¶¶ 98101, 104-110 (accusing Arneson of proposing a kickback mortgage scheme and Gittus of operating a side business that conflicted with his duties at Meritage). On July 3, 2007, the Court ruled that "... Meritage is entitled to summary judgment on all of Rick Hancock's counterclaims." Order at 21:10-13 (July 3, 2007) (Item # 503) (emphasis added). As such, none of these allegations are relevant to any remaining claim or defense, and any evidence proffered to support these allegations would be unduly prejudicial. See Rules 401 and 403, Fed. R. Evid.; Anheuser-Busch, Inc. v. Natural Bev. Dist., 69 F.3d 337, 347 (9th Cir. 1995), quoting County of Maricopa v. Maberry, 555 F.2d 207, 219 (9th Cir. 1977) (in limine exclusions of evidence mean to keep the jury from hearing something it should not hear). After that ruling, moreover, Rick Hancock has dismissed his claims against Plaintiffs with prejudice. See Stipulation to Entry of Order of Dismissal (Aug 17, 2007) (Item # 512) and Notice of Lodging of Settlement Agreement (Aug 17, 2007) (Item # 513). The jury should also not hear evidence like the testimony proposed in the Declaration of Greg Hancock, who has provided his "expert opinion testimony" that Meritage's actions in regard to Madrid were intentionally deceitful and fraudulent. See Declaration of Gregory S. Hancock at ¶¶ 5-29 (Feb. 8, 2007) (Exhibit 36 to Item # 430-5). Other witnesses on Defendants' witness lists have offered testimony that Meritage made "false statements" with respect to the Madrid house or terminated Rick Hancock in bad faith with the purpose of harming his pregnant wife. See, e.g., Declaration of Shari Mesicko at ¶ 8 (April 7, 2007) (Exhibit 31 to Item # 430-5); Declaration of Rick Hancock at ¶ 11 (Dec. 6, 2006) (Exhibit 1 to Item # 430-2). These inflammatory assertions are not relevant to any of the remaining claims and, even if they were relevant, they are unduly
Case 2:04-cv-00384-ROS Document 514- 2 - Filed 08/20/2007 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

prejudicial. Fed. R. Evid. 401 and 403. Like his former co-Defendant Rick Hancock, Defendant Greg Hancock lost his damages claims against Meritage. Order (Mar. 31, 2006) (Item # 296). His sensational conduct throughout the case is a strong indication that he will resort to desperate measures at trial, including any attempt at inflaming the jury against Meritage. Therefore, limited and expressed orders in limine to deter such conduct are necessary to keep the jury from hearing things they should not hear. Accordingly, Plaintiffs respectfully request that the Court enter an order in limine to exclude all references at trial, by witnesses or by attorneys during argument, to Rick Hancock's attempted purchase of the Madrid home, to Brenda Hancock's pregnancy and to the substance and gist of Rick Hancock's counterclaims which this Court has dismissed on summary judgment. RESPECTFULLY SUBMITTED this ___ day of July, 2007. SNELL & WILMER L.L.P.

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

Case 2:04-cv-00384-ROS

Document 514- 3 - Filed 08/20/2007

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

CERTIFICATE OF SERVICE I hereby certify that on August 20, 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: Ivan K. Mathew Mathew & Mathew, P.C. 3300 North Central Avenue, Suite 1730 Phoenix, Arizona 85012 Attorneys for Rick Hancock, Brenda Hancock, Rick Hancock Homes, L.L.C., and RLH Development, L.L.C. Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Greg Hancock s/ Deborah Yanazzo
2021966.3

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 514- 4 - Filed 08/20/2007

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