Free Response in Opposition to Motion - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
13

DEFENDANT GREG HANCOCK'S RESPONSE TO PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE REFERENCE TO DEFINITIONS IN LICENSE AGREEMENT

Defendants.
14 15

The License Agreement between Greg Hancock and Meritage says that Meritage
16

agrees, because of the value of the Hancock names, not to do anything with them which,
17

directly or indirectly, "would derogate or detract from the Licensed Mark's repute, value,
18

marketability, degree of public recognition or popularity." Since its conduct violated that
19

undertaking in about every way possible, Meritage now wants to distort that language to fit
20

with dicta dredged from dissimilar cases and deprive the jury of the chance to interpret the
21

terms in the exercise of its common sense.
22

The "go dark" memo, despite Meritage's supercilious protestations that it represented
23

mere talking points, could not be more stark in its malicious intent toward Hancock and his
24

name. On September 8, 2003, six months after Greg Hancock left employment with
25

Meritage, six months before he canceled the License Agreement, and four and a half years
26

Case 2:04-cv-00384-ROS

Document 511

Filed 08/14/2007

Page 1 of 8

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it would have expired, Hilton sent an Email to Co-CEO John Landon re the "Hancock Name:"
John: You may want to begin considering how we are going to transition the "Hancock Communities" name to "Meritage Homes." We have the rights to the name for 6 years. I think the name should be dark in the market for at least 1 year or maybe 2 prior to the expiration of our license so that we do not waste advertising dollars on a name that Greg may resurrect immediately following our license. Therefore we should consider a plan to phase out the name over the next 18 months. What do you think? (Exh. 2, emphasis supplied.)

Interesting choice of words. "Dark in the market" is self-explanatory, and if the
7

phrase isn't tantamount to detracting from public recognition, then nothing is. "Resurrect"
8

is equally sinister, and implies that Greg Hancock will have to bring his name back to life.
9

Clearly, the death of the Hancock name is what Hilton intended.
10

Meritage even hired an advertising agency to accomplish the interment. Barbara
11

(Sorget) Stanton, then with the Martz Agency, was hired for the purpose. Stanton's
12

testimony constitutes the admissions of a party. When she was deposed on June 27, 2007,
13

the following was revealed:
14

Q. And by the way, while we are on that topic [of decreasing the Hancock
15

name in the marketplace], in advertising, does the word dark in the marketplace have
16

a meaning?
17

A. It would mean you go out of the marketplace. Your name is not
18

advertised, or decreased.
19

Q. What is the effect of going dark in the marketplace based on your
20

experience?
21

A. Decreased awareness.
22

Q. You had not seen the e-mail from Mr. Hilton to Mr. Landon when you
23

embarked upon the name change campaign, true?
24

A. Correct.
25

Q. If you had been shown both the License Agreement and e-mail of
26 2 Case 2:04-cv-00384-ROS Document 511 Filed 08/14/2007 Page 2 of 8

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

September 8th, 2003, prior to embarking on your campaign, what would you have done, if anything, about them? A. I would have gone to Carrie Martz and I would have told her that I had an issue with going against a legal document to do something that is stated should not be done. Q. Based upon your experience in advertising, had you known of the documents in question, would your taking - - changing the name in the fashion they wanted you to do conflict with those documents? A. Yes. * * *

Q. Did the work that you did in changing the name from Hancock to Meritage actually accomplish the purpose that is expressed in [the go dark memo]? A. Yes. (Stanton Dep. 137,138)

Even Hilton conceded the point in his deposition: Q. When you changed the eight or more communities from Hancock Communities to Meritage Homes, what did that do to the Hancock Communities' visibility? A. Made it less visible. (Hilton Dep. 70, emphasis supplied.) To limit the trial inquiry into definitions found in case reports as opposed to real life facts would not only thwart justice, it would defeat what Hilton agreed to with regard to the phrasing in the License Agreement: Q. * * * What did you understand Meritage's obligations under the

licensing agreement to be? A. Everything that was in the contract. (Hilton Dep. 25, emphasis supplied.) Had the parties wanted to limit the License Agreement to definitions found in cases, the language could have said something like "as found in Smith v. Jones," or some similar
3 Case 2:04-cv-00384-ROS Document 511 Filed 08/14/2007 Page 3 of 8

1 2 3 4 5 6

phrasing. They did not, and Meritage is bound to the plain meaning of the License Agreement. The language is unambiguous, and Meritage is not entitled to be insulated from its plain meaning. The motion should be denied.

RESPECTFULLY SUBMITTED this 14th day of August, 2007. FRISBEE & BOSTOCK, PLC

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/s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Motion in Limine was electronically filed and served this 12 14th day of August, 2007, and copy thereof mailed to the Honorable Judge Silver.
11 13

/s/ Robert M. Frisbee
14 15 16 17 18 19 20 21 22 23 24 25 26 4 Case 2:04-cv-00384-ROS Document 511 Filed 08/14/2007 Page 4 of 8

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
1 5 6 7 8 9 10 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
13

DEFENDANT GREG HANCOCK'S RESPONSE TO PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE REFERENCE TO DEFINITIONS IN LICENSE AGREEMENT

Defendants.
14 15

The License Agreement between Greg Hancock and Meritage says that Meritage
16

agrees, because of the value of the Hancock names, not to do anything with them which,
17

directly or indirectly, "would derogate or detract from the Licensed Mark's repute, value,
18

marketability, degree of public recognition or popularity." Since its conduct violated that
19

undertaking in about every way possible, Meritage now wants to distort that language to fit
20

with dicta dredged from dissimilar cases and deprive the jury of the chance to interpret the
21

terms in the exercise of its common sense.
22

The "go dark" memo, despite Meritage's supercilious protestations that it represented
23

mere talking points, could not be more stark in its malicious intent toward Hancock and his
24

name. On September 8, 2003, six months after Greg Hancock left employment with
25

Meritage, six months before he canceled the License Agreement, and four and a half years
26

Case 2:04-cv-00384-ROS

Document 511

Filed 08/14/2007

Page 5 of 8

1 2 3 4 5 6

it would have expired, Hilton sent an Email to Co-CEO John Landon re the "Hancock Name:"
John: You may want to begin considering how we are going to transition the "Hancock Communities" name to "Meritage Homes." We have the rights to the name for 6 years. I think the name should be dark in the market for at least 1 year or maybe 2 prior to the expiration of our license so that we do not waste advertising dollars on a name that Greg may resurrect immediately following our license. Therefore we should consider a plan to phase out the name over the next 18 months. What do you think? (Exh. 2, emphasis supplied.)

Interesting choice of words. "Dark in the market" is self-explanatory, and if the
7

phrase isn't tantamount to detracting from public recognition, then nothing is. "Resurrect"
8

is equally sinister, and implies that Greg Hancock will have to bring his name back to life.
9

Clearly, the death of the Hancock name is what Hilton intended.
10

Meritage even hired an advertising agency to accomplish the interment. Barbara
11

(Sorget) Stanton, then with the Martz Agency, was hired for the purpose. Stanton's
12

testimony constitutes the admissions of a party. When she was deposed on June 27, 2007,
13

the following was revealed:
14

Q. And by the way, while we are on that topic [of decreasing the Hancock
15

name in the marketplace], in advertising, does the word dark in the marketplace have
16

a meaning?
17

A. It would mean you go out of the marketplace. Your name is not
18

advertised, or decreased.
19

Q. What is the effect of going dark in the marketplace based on your
20

experience?
21

A. Decreased awareness.
22

Q. You had not seen the e-mail from Mr. Hilton to Mr. Landon when you
23

embarked upon the name change campaign, true?
24

A. Correct.
25

Q. If you had been shown both the License Agreement and e-mail of
26 2 Case 2:04-cv-00384-ROS Document 511 Filed 08/14/2007 Page 6 of 8

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

September 8th, 2003, prior to embarking on your campaign, what would you have done, if anything, about them? A. I would have gone to Carrie Martz and I would have told her that I had an issue with going against a legal document to do something that is stated should not be done. Q. Based upon your experience in advertising, had you known of the documents in question, would your taking - - changing the name in the fashion they wanted you to do conflict with those documents? A. Yes. * * *

Q. Did the work that you did in changing the name from Hancock to Meritage actually accomplish the purpose that is expressed in [the go dark memo]? A. Yes. (Stanton Dep. 137,138)

Even Hilton conceded the point in his deposition: Q. When you changed the eight or more communities from Hancock Communities to Meritage Homes, what did that do to the Hancock Communities' visibility? A. Made it less visible. (Hilton Dep. 70, emphasis supplied.) To limit the trial inquiry into definitions found in case reports as opposed to real life facts would not only thwart justice, it would defeat what Hilton agreed to with regard to the phrasing in the License Agreement: Q. * * * What did you understand Meritage's obligations under the

licensing agreement to be? A. Everything that was in the contract. (Hilton Dep. 25, emphasis supplied.) Had the parties wanted to limit the License Agreement to definitions found in cases, the language could have said something like "as found in Smith v. Jones," or some similar
3 Case 2:04-cv-00384-ROS Document 511 Filed 08/14/2007 Page 7 of 8

1 2 3 4 5 6

phrasing. They did not, and Meritage is bound to the plain meaning of the License Agreement. The language is unambiguous, and Meritage is not entitled to be insulated from its plain meaning. The motion should be denied.

RESPECTFULLY SUBMITTED this 14th day of August, 2007. FRISBEE & BOSTOCK, PLC

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/s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Motion in Limine was electronically filed and served this 12 14th day of August, 2007, and copy thereof mailed to the Honorable Judge Silver.
11 13

/s/ Robert M. Frisbee
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