Free Reply to Response to Motion - District Court of Arizona - Arizona

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Dan W. Goldfine (#018788) Adam Lang (#022545) 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 Counterdefendants and Third Party Defendants and

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

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Snell & Wilmer L.L.P.

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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Case No. CV-04-0384-PHX-ROS Hancock-MTH Builders, Inc., an Arizona corporation, Hancock-MTH Communities, Inc., an REPLY RE MOTION TO EXCEED Arizona corporation, and currently d/b/a Meritage PAGE LIMITS IN PLAINTIFFS' Homes Construction, Inc., an Arizona corporation, RESPONSE IN OPPOSITION TO and Meritage Homes of Arizona, Inc., an Arizona DEFENDANTS RICK AND corporation, BRENDA HANCOCK, RICK HANCOCK HOMES, INC., AND Plaintiffs, RLH DEVELOPMENT, INC.'S RENEWED MOTION FOR v. SUMMARY JUDGMENT Ricky Lee Hancock and Brenda Hancock, husband and wife; Gregory S. Hancock and Linda Hancock, husband and wife, Rick Hancock Homes L.L.C., an Arizona limited liability company; RLH Development, L.L.C., an Arizona limited liability company; and J2H2, L.L.C., an Arizona limited liability company, Defendants.

Case 2:04-cv-00384-ROS

Document 453

Filed 03/07/2007

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

Rick and Brenda Hancock, Defendants, Counter-Claimants, and Third Party Plaintiffs, v. Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Hancock-MTH Builders, Inc., an Arizona Corporation, Hancock-MTH Communities, Inc., an Arizona Corporation, an Arizona Corporation; and currently d/b/a Meritage Homes Construction, Inc., an Arizona Corporation, and Meritage Homes of Arizona, Inc., an Arizona Corporation; Steven J. Hilton and Suzanne Hilton, husband and wife; John R. Landon and Debi Landon, husband and wife; Scott Keeffe and Vicky Keeffe, husband and wife; Roger Zetah and Jane Doe Zetah, husband and wife; and James Arneson and Zane Arneson, husband and wife, Third Party Defendants. Plaintiffs reply to the Opposition Defendants Rick and Brenda Hancock, Rick Hancock Homes, Inc., and RLH Development, Inc.'s (collectively, "Rick Hancock") to the Motion for Leave to Exceed the Page Limit for the Response Renewed Motion for Summary Judgment ("Motion for Leave"). Putting aside the fact that Rick Hancock's Opposition to a motion for leave to exceed the page limit surely indicates that his motion for summary judgment is not well-taken, Rick Hancock has seriously misstated the email communication between the two parties. forth in the Motion for Leave. I. RICK HANCOCK MISSTATES THE AGREEMENT BETWEEN THE PARTIES Meritage needs to clarify a serious misstatement made by Rick Hancock. Following Greg Hancock's Response to Meritage's Motion for Partial Summary Judgment, the undersigned counsel wrote by email both of the Hancocks' attorneys to address the Reply to Meritage's Motion for Summary Judgment. The email asked: In replying to Meritage's motion for summary judgment, I would like to file only one reply memorandum rather than one reply memo to Greg's response and one reply to Rick's
Document 453- 2 - Filed 03/07/2007

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He also has not rebutted the good cause set

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

yet-to-be-filed response. That should be easier on the Court and on you should there be oral argument. Can I file that single reply memorandum within the deadline set when Rick files his response? Thx in advance. See Ex. 1 to Rick Hancock's Response to Motion to Exceed the Page Limits. Accordingly, the entire email ­ and the agreement between the parties resulting from that email ­ clearly and only dealt with Reply memorandum to Meritage's Motion for Summary Judgment. Notwithstanding the clear language to the contrary, Rick Hancock misstates that the undersigned counsel "advised both opposing counsel that they wanted to preserve judicial resources by filing a joint Response to both Greg Hancock and Rick Hancock's Motions for Summary Judgment. (See e-mail from Dan Goldfine date January 2, 2007 attached [to the Response to Motion to Exceed the Page Limits] as Exhibit `1'.)" Rick Hancock's Response to Motion to Exceed the Page Limits at 2:9-12 (emphasis added). Consequently, Rick Hancock has simply misstated to the Court what the agreement was by confusing "Reply to Meritage's Motion" and "Response to the Hancocks' two separate Motions." (It is worth observing that Meritage only filed a single Reply memorandum per the undersigned counsel's agreement on March 5, 2006, a day before Rick Hancock filed this ill-tempered Response to the Motion for Leave.) II. GOOD CAUSE FOR LEAVE TO EXCEED THE PAGE LIMITS ON THE RESPONSE TO RICK HANCOCK'S MOTION FOR SUMMARY JUDGMENT This Reply now turns to good cause for leave to exceed the page limits with respect to Meritage's Response to Rick Hancock's Motion for Summary Judgment. A review of Rick Hancock's Response to the Motion for Leave reveals that Rick Hancock's own misstatement (and perhaps misunderstanding) as to what the agreement reflected in the emails says infects the totality of his argument. Absent the agreement as misstated by Rick Hancock, there is no substance to his response, and he therefore impliedly concedes that good cause is present.

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Case 2:04-cv-00384-ROS

Document 453- 3 - Filed 03/07/2007

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

First, the Motion for Leave asserted that Rick Hancock's Summary Judgment Motion "consist[ed] of paragraphs upon paragraphs of misstatements of law and the factual record, out-of-context or misquoted testimony, and unsupported assertions." See Motion to Exceed Page Limits in Plaintiffs' Response in Opposition to Defendants Rick and Brenda Hancock, Rick Hancock Homes, Inc., and RLH Development, Inc.'s Renewed Motion for Summary Judgment at 3:11-13. Rick Hancock does not dispute this assertion. Indeed, the misstatement of fact about which motions and which briefs would be consolidated, detailed above, further substantiates the assertion that Rick Hancock plays loose with the facts and explains why additional space was necessary (i.e., one has to identify the misstatement, prove that it is false, and then respond to it). Second, the Motion for Leave argued that additional space was necessary because Rick Hancock had made 38 separate substantive arguments for summary judgment. Id. at 2:22-25. Rick Hancock's Response does not dispute this fact. Obviously, Rule 56(e) of the Rules of Civil Procedure places an opponent at risk for not responding to a summary judgment argument ­ no matter how baseless that argument is. Third, as explain in the Motion for Leave and conceded in Rick Hancock's opposition to leave, this is a complicated case with a detailed evidentiary record that both sides vigorously dispute. This is additional good cause for leave. Finally, Meritage asserted and continues to believe that the additional argument was "forced" by the practices identified above and not disputed by Rick Hancock. The undersigned counsel was not "sharp" as argued by Rick Hancock. Rather, the

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undersigned counsel merely addressed the issues as Rick Hancock had presented in his Motion. If Rick Hancock had not misstated the law, had not misstated the facts, had not taken testimony out of context, had not misquoted testimony, and had not made unsupported assertions of fact, the Response to his Motion would have been well within the page limits. In fact, serious doubt exists that Rick Hancock would have even been able to file a motion.

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Document 453- 4 - Filed 03/07/2007

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

III.

CONCLUSION For the reasons set forth above and in the Motion for Leave, Meritage requests that

the Court grant leave to exceed the page limits as set forth in the proposed order filed with the Court and deny Rick Hancock's request for a protective order.1

DATED this 7th day of March, 2007. SNELL & WILMER L.L.P.

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1

By s/ Dan W. Goldfine Dan W. Goldfine Adam Lang One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiffs and Third Party Defendants and

Snell & Wilmer L.L.P.

By s/ Grant Woods Grant Woods GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, AZ 85006 Attorneys for Plaintiffs and Third Party Defendants CERTIFICATE OF SERVICE I hereby certify that on March 7, 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 Defendants Rick Hancock, Brenda Hancock, Rick Hancock Homes, L.L.C., and RLH Development, L.L.C. It should be noted that Rick Hancock's counsel has not asked for an extension to accommodate his concerns as set forth in the proposed protective order.
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Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Defendant 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/ Dan W. Goldfine
29323.0078\GOLDFID\PHX\1964158

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

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Case 2:04-cv-00384-ROS Document 453- 6 - Filed 03/07/2007 Page 6 of 6

Snell & Wilmer L.L.P.