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,
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DEFENDANT GREG HANCOCK'S RESPONSE TO PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF MERITAGE'S BREACH OF LICENSE AGREEMENT

Defendants.
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Because of the "go dark" memo from CEO Hilton to CEO Landon, and because of its carefully orchestrated evisceration of the Hancock name from its projects, Meritage has realized that it cannot possibly prevail on any of its numerous claims related to the License Agreement. Mereitage will not dismiss those claims and suffer the consequences. Rather, Meritage now concedes that the License Agreement was canceled on February 13, 2004, but asks the Court to prevent Hancock from mentioning the almost three years of pleadings and testimony wherein Meritage has claimed the License Agreement was not canceled, and to preclude evidence of its unlawful diminishment of the Hancock name after February 13, 2004. Meritage wants the Court to forget, and the jury to be prevented from hearing, the following perjured or absurdly inconsistent evidence:

Case 2:04-cv-00384-ROS

Document 509

Filed 08/14/2007

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! Its original "VERIFIED COMPLAINT"(filed 2-24-04) asserts that much of its case, its invocation of federal jurisdiction, and its need for an injunction is based on its right to the goodwill inherent in the trade names "Hancock Homes" and "Hancock Communities," obtained through the License Agreement, allegedly wrongfully unilaterally terminated by Greg Hancock. (Pars. 1, 4, 11-14,131, 33, 34, 38, 42-25, 52, 61, 76, 77, 79, 83, and 101-104) !Its "FIRST AMENDED COMPLAINT," verified by CFO Larry Seay on October 11, 2004, makes essentially the same assertions. (Pars. 1, 4, 11-13, 30, 31, 33, 34, 48, 50, 5557, 59-62, 69, 71, 78, 100, 118, 119 and 121) !More of the same six months later on April 15, 2005, when it filed its "SECOND AMENDED COMPLAINT." (Pars. 1, 3, 14, 16-19, 48, 52, 63, 65, 76-79, 91, 109, 111, 112, 119, 139, and 140) !"Meritage could not have violated the License Agreement after Greg Hancock terminated the License Agreement by letter on February 13, 2004." (Meritage Motion For Partial Summary Judgment, p. 1) !Meritage could not have violated the License Agreement as a matter of law "because five months earlier on February 13, 2004, Greg Hancock wrote Meritage terminating the License Agreement. . ." (Meritage Motion For Partial Summary Judgment, p. 8, emphasis in original.) !The real dispute in this case is with Greg Hancock's termination of the License Agreement, Meritage disagreeing that it's terminated. (Seay Dep. 77,78) !As to the lawsuit,"It's about [Greg Hancock] terminating our license to the name. (Hilton Dep., p.179) Meritage's motion even quotes what the letter from Hancock's lawyer said when the license was terminated: "If your client does not cease using my client's property [i.e., the

Wherein it bastardized the language to make it appear that Meritage, rather than Hancock, was entitled to injunctive relief and waiver of bond.

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2 Case 2:04-cv-00384-ROS Document 509 Filed 08/14/2007 Page 2 of 4

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"Hancock name] by March 1, 2004, my client will pursue all remedies at his disposal.[.] (Emphasis supplied) Well, Meritage didn't stop using it. Instead, in an orchestrated advertising campaign lasting several years, it gradually reduced and ultimately eradicated the Hancock name entirely. Meritage even musters up the chutzpah to claim it was entitled to do so, and that it did so as a favor to Hancock. But it doesn't want the jury to be able to know any of that. To use a homely analogy, had Hancock leased a Bentley to Meritage, and then canceled the lease for non-payment, Meritage claims it could have driven the Bentley for several more years, all the while stripping it of paint and appointments until only a frame resting on rims was left. Then, in a lawsuit related to the lease, it says a jury should be deprived of hearing of the trashing. The thought fairly screams "injustice." It is obvious, with reference to its various written and testimonial assertions regarding the License Agreement, that Meritage wants to avoid the question, "Which time were you lying?" Well, the question is entirely appropriate, as is evidence underlying it. It is likely that the jury will be instructed that in evaluating a party's testimony, it can consider whether the party is contradicted by anything the party said or wrote before trial, or by other inconsistent evidence. (Sect. 10.07, Manual of Model Jury Instructions For the Ninth Circuit.) Meritage launched this totally unmeritorious litigation premised on the ongoing validity of the license. Now, it concedes that the license was canceled, but wants the jury not to know of its arrogant and unlawful treatment of the Hancock name after the cancellation. No better founded than its lawsuit, its motion in limine regarding its mis-use of Hancock's name after the license was terminated should be denied. \\ \\ RESPECTFULLY SUBMITTED this 14th day of August, 2007.

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FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Motion in Limine was electronically filed and served this 14th day of August, 2007, and copy 7 thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee