Free Reply to Response 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
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 OBJECTION TO PLAINTIFF'S RESPONSE TO GREG HANCOCK'S UPDATED MOTION FOR SUMMARY JUDGMENT OR DISMISSAL AND GREG HANCOCK'S REPLY TO PLAINTIFFS' RESPONSE

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

Defendants.
14 15 16 17 18 19 20 21 22 23 24 25 26

I. Plaintiff"s Response Disobeys This Court's Order And Should Be Ignored. On February 6, 2007, this Court's Amended Scheduling Order limited summary judgment motion papers to seventeen (17) pages. On February 23, 2007, the last day plaintiff could file its Response, at 1:56 PM it filed a motion for leave to file excess pages in its Response to Greg Hancock's Updated Motion for Summary Judgment. The Court has not granted the motion to Greg Hancock's knowledge. Nevertheless, at nearly 8:00 PM that evening, plaintiff filed its 26 page Response, plus a voluminous controverted statement of facts and even more voluminous exhibits. The filing ignored the Court's Order, and the Response should be ignored. II. Plaintiff's Response Barely Dignifies a Reply. Evidently in the belief that the more often lies are repeated the more likely they are

Case 2:04-cv-00384-ROS

Document 441

Filed 03/05/2007

Page 1 of 4

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

to be believed, Meritage spends it unauthorized 26 pages repeating the following untruths: A. The License Agreement 1. Meritage didn't breach the License Agreement by contriving to and actually taking Hancock "dark in the marketplace," which really doesn't detract from the name's marketability; and 2. Since the License Agreement didn't specify use in any particular manner or amount, Meritage could do anything it wanted to with the name; but 3. Hancock had cancelled the License Agreement anyway, so Meritage was really just doing what he wanted; and 4. Meritage sold a whole bunch of homes using Hancock's name, so he shouldn't complain. As to 1), Meritage conveniently ignores the language in the email regarding Hancock using his name after the license expires. Obviously, Meritage's CEOs wanted to bury the name, the exact opposite of what the license required it to do. If Hancock hadn't wanted the name to have value when the license expired, why didn't he just give to Meritage? As to 2), the name was already in wide use, far more than the Meritage name, and that's why Meritage wanted it. There was no necessity to specify quantity of use in the license agreement. As to 3), Hancock cancelled the license agreement before this suit was filed. As he as insisted all along, there was never any reason for Meritage to be in Federal court, for if there was no license agreement, how could there be a Lanham Act violation? Evidently, Meritage now agrees and should be summarily ejected from this Court without more. And as to 4), so what? Until the last few months, every builder in the business sold every home they could build as fast as they could build them, whatever their name. Now the name may be important, and now is when the Hancock name has been diminished by Meritage taking the name "dark."
2 Case 2:04-cv-00384-ROS Document 441 Filed 03/05/2007 Page 2 of 4

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

B. "The Big Lie" This topic has been briefed so thoroughly and so often that it need not be repeated here. Suffice to say that Hancock's brief participation in Olympic Properties, from which he withdrew before its successors purchased Westwind and Riata, because it might have violated his employment agreement, did Meritage no wrong whatever. Moreover, there is nothing in the record other than rank speculation by Meritage's attorneys and their hired gun that Meritage could have participated in the projects at any lesser cost. It's very own equity partner, Dave Cornwall, did not so testify, nor has anybody else. C. Other Claimed Damage Meritage has not found a single witness that has attested or testified that Greg Hancock assisted Rick Hancock's home building in any way. For that matter, there is not a single witness that has testified that anything Rick Hancock did, whether or not assisted by Greg Hancock, caused Meritage to miss or delay a single sale. As to the rest of the damage claims, Meritage's summary of damages at page 24 of its Response is breathtaking in its dishonesty: 1. $44 million, claimed to be half of the $88 million Meritage paid for the License Agreement. That was the price for the entire purchase. Evidently it is to be ignored that in its bond offering circular supporting the Hancock purchase, Meritage said "At March 31, 2001, Hancock had 4,646 lots on which homes could be built under its control." (SOF 39a.) Hancock sold these lots for nothing? 2. Again, there is no evidence supporting the dollar claim. And, if Hancock "forced" Meritage to reduce its use of the name, then Meritage concedes that the License Agreement was canceled, and Meritage does not belong in this Court as a matter of law. 3.,4. This is just more bootstrapping based on the fetid imagination of the Meritage "expert" and the big lie. There is no documentary or contemporary witness testimony supporting a bit of it. It doesn't dignify further reply.
3 Case 2:04-cv-00384-ROS Document 441 Filed 03/05/2007 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11

III. Conclusion. Meritage's Response exceeds this Court's page limit order and should be ignored. Meritage should no longer be allowed to ignore the rules and file whatever it wants to file. In any event, Meritage's Response adds nothing to the case but further verbiage, and is not sufficient to overcome Greg Hancock's Motion for Summary Judgment or Dismissal. Respectfully submitted this 5th day of March, 2007.

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

The foregoing Objection and Reply to Plaintiff's Response to Greg Hancock's Motion for Summary Judgment or Dismissal 13 was electronically filed and served this 5th day of March, 2007, and copy 14 thereof mailed to the Honorable Judge Silver.
12 15

/s/ Robert M. Frisbee
16 17 18 19 20 21 22 23 24 25 26 4 Case 2:04-cv-00384-ROS Document 441 Filed 03/05/2007 Page 4 of 4