Free 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
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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 MERITAGE'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants.
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A. Meritage's Argument Concedes That The License Agreement Was Canceled; ergo The Entire Basis For Its Claims Of Lanham Act Violation, Unfair Competition And Federal Jurisdiction Has Disappeared. As Greg Hancock has contended from the beginning, Meritage's lawsuit has

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constituted a fraud on this court. The very first page of its Motion For Partial Summary
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Judgment concedes the point: "Meritage could not have breached the License Agreement
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after Greg Hancock terminated the License Agreement by letter on February 13, 2004."
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Why, then, was this lawsuit filed by Meritage on February 24, 2004? Meritage's entire
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premise and rationale for its suit is its supposed right to the Hancock name under the License
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Agreement.
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The same concession is made at p. 8 of its motion, where Meritage states that it could
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not have violated the License Agreement as a matter of law "because five months earlier on
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Case 2:04-cv-00384-ROS

Document 419

Filed 12/27/2006

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February 13, 2004, Greg Hancock wrote Meritage terminating the License Agreement. . ." (Emphasis in original.) Why, then, are we here? B. Meritage Breached The License Agreement Before Hancock Canceled It. Meritage would have the court believe that it just couldn't have caused Greg Hancock any damages by discontinuing the use of his name because, after all, he terminated the license agreement. Of course, that argument buttresses the point made in Section A, above. However, as is customary with Meritage, it also misstates the facts. Meritage commenced to violate the License Agreement before Hancock terminated on February 13, 2004 - - the "go dark" Email occurred on September 8, 2003, the name change announcement occurred at the 2003 Christmas party, French's "change the name ASAP" memo occurred on December 9, 2003, and the advertising campaign started with the ad agency on January 12, 2004. Meritage then spends words in a sophisticated argument about cases interpreting the words "derogate" and "detract" in the License Agreement. Nice, but sophistry doesn't overcome the testimony of Steve Hilton that the name change made the Hancock name "less visible." Only in minds like Meritage executives or Snell & Wilmer lawyers does making a name "less visible" not equate to "detracting" from it. Meritage's argument that because it sold numerous houses under the name "Hancock" it could not have breached the License Agreement is similarly specious. It is common knowledge tantamount to judicial notice that until about six months ago every home builder in this area sold every house it could build, whatever the names of the communities. Because it sold homes before it discontinued the Hancock name says nothing whatever about what the effect on the name later on. And finally, Meritage's concession that Greg Hancock terminated the License Agreement, thereby removing its right to use his name, entirely moots the arguments Meritge makes at sections A.3, 4, 5, and 6 of its motion. The same is true regarding its argument
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about Hancock's earn-out, since Meritage's failure to advise him about it, as required by the MTA, was one of the reasons for the License Agreement's cancellation. C. Summary Judgment On Dismissed Claims Is Superfluous. Meritage makes the curious argument that even though the Court dismissed Greg Hancock's counterclaims, it is also entitled to summary judgment on them. Greg Hancock has made no secret of the fact that he will appeal the dismissals as soon as appropriate, so perhaps Meritage just wants to hasten the process by encouraging the Court to grant summary judgment on the claims also. Such a judgment would be entirely premature and superfluous at this point, and would give Hancock more grounds for appeal. If that is what Meritage wants, it is fine with Hancock. Otherwise, this argument is a waste of the Court's time. D. Conclusion. Meritage has now conceded that the License Agreement was canceled prior to the filing of its lawsuit. Accordingly, there is no basis for federal jurisdiction. Greg Hancock's motion for summary judgment should be granted, or as he has repeatedly urged the Court, the case should be dismissed for lack of jurisdiction, which the Court is obligated to do at any time such failure of jurisdiction is evident. Respectfully submitted this 27th day of December, 2006. FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing List of Controverted Facts was electronically filed and served this 18th day of December, 2006, and copy 24 thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee
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