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 preclude Defendant Hancock from referring to any evidence or argument that Meritage reduced the use of the name "Hancock," rebranded the "Hancock PLAINTIFFS' MOTION IN LIMINE RE EVIDENCE OF MERITAGE'S BREACH OF THE LICENSE AGREEMENT AFTER FEBRUARY 13, 2004 (Assigned to the Honorable Roslyn O. Silver)

25 26 27 28 Communities," or otherwise breached the License Agreement after February 13, 2004 in opening statement, in closing argument and during testimonial evidence. On February 13, 2004, through his attorney, Defendant Hancock wrote Meritage:
Case 2:04-cv-00384-ROS Document 506 Filed 08/09/2007 Page 1 of 4

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

[P]ursuant to Section 7.3 of the License Agreement, dated May 30, 2001, your client's license to use the "Licensed Marks," "Hancock Homes" and "Hancock Communities" is hereby terminated immediately. Demand is further made, pursuant to Section 8.1 of the License Agreement, that your client transfer and assign to my client any right, title and interest to the Licensed Marks which your client may have acquired as a result of its activities under the License Agreement. Although not required to do so, my client is willing to provide a reasonable period of time to your client to change its name and to change its signage and marketing materials. We expect this could be accomplished in a couple of weeks. We expect immediate payment of all past due amounts demanded by this letter. If your client does not cease using my client's property [i.e., the "Hancock" name] by March 1, 2004, my client will pursue all remedies at his disposal[.] See February 13, 2004 Letter from Greg Hancock to Meritage, attached hereto as Exhibit 1 (emphasis added). Section 7.3 of the License Agreement provides that Defendant Hancock "shall have the right to immediately terminate this [License] Agreement without prior notice if [Meritage], its employees or agents shall breach any provision of this Agreement or the Master Transaction Agreement." See May 30, 2001 License Agreement, attached hereto as Exhibit 2. Section 8.1 of the License Agreement provides that "upon the expiration or termination of [the License] Agreement for whatever reason, [Meritage] will immediately cease all use of the Licensed Marks and . . . destroy all materials bearing the Licensed Marks." See id. Meritage hotly contests Defendant Hancock's assertion that it breached any duties owed to him. Nevertheless and even assuming that Meritage was in breach prior to February 13, 2004, Defendant Hancock has no right to complain that Meritage's postFebruary 13, 2004 conduct amounts to a breach of the License Agreement or is otherwise wrongful after instructing Meritage to stop using the "Hancock" name. Consistent with Defendant Hancock's February 13, 2004 directions, Meritage engaged in a strategy to
Document 506- 2 - Filed 08/09/2007

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

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

rebrand "Hancock Communities," reduce the use of the name "Hancock" in marketing homes, and ultimately eliminate the use at least two years before the end of License Agreement granting Meritage exclusive use of term "Hancock." In light of the February 13, 2004 letter, evidence of such does not tend to prove any fact of consequence and is therefore inadmissible. Fed. R. Evid. 401; see Fed. R. Evid. 407 (evidence of subsequent remedial measures not admissible to prove liability). Accordingly, Meritage requests an order in limine barring Defendant Hancock and his counsel from making any reference to Meritage's post-February 13, 2004 activities with respect to Meritage reducing the use of the name "Hancock," rebranding the "Hancock Communities," or otherwise breaching the License Agreement after February 13, 2004. RESPECTFULLY SUBMITTED this 9th day of August, 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 506- 3 - Filed 08/09/2007

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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 9, 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 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

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Snell & Wilmer L.L.P.

s/ Jessica Araujo
2030818

Case 2:04-cv-00384-ROS

Document 506- 4 - Filed 08/09/2007

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