Free Witness List - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. IVAN K. MATHEW (SBN: 011610) 1850 N. Central Avenue, Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 / Fax: (602) 254-2204 E-mail: [email protected] Attorneys for Defendants RICKY LEE HANCOCK, BRENDA HANCOCK, RICK HANCOCK HOMES, L.L.C. and RLH DEVELOPMENT, L.L.C.
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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, and currently d/b/a Meritage Homes Construction, Inc., an Arizona corporation, and Meritage Homes of Arizona, Inc., an Arizona corporation, Plaintiffs, v. 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. _________________________________________ Greg Hancock, an individual, Defendant, Counterclaimant, and Third-Party Plaintiff, v. Steven J. Hilton, an individual; John R. Landon, an
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Case 2:04-cv-00384-ROS Document 384

CASE NO. CV-04-0384-PHX-ROS DEFENDANTS' SECOND LIST OF WITNESSES (Assigned to the Hon. Roslyn O. Silver)

Filed 10/10/2006

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individual; Larry W. Seay, an individual; and Snell & Wilmer, L.L.P., an Arizona professional corporation, Third-Party Defendants. __________________________________________ Rick and Brenda Hancock, Defendants, Counterclaimants 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, 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.

Attorneys for Defendants, Ricky Lee Hancock, Brenda Hancock, Rick Hancock Homes, LLC, RLH Development, LLC, represented by Mathew & Mathew, and Defendants, Gregory S. Hancock, and J2H2, LLC, represented by Frisbee & Bostock, hereby disclose and supplement the identity of additional persons who may be used at trial to present evidence under Federal Rules of Evidence (FRE) 701, 702, 703, 704, and/or 705. 1. Greg Hancock. Greg Hancock will testify that Meritage accepted a contract

with Rick and Brenda Hancock. He will testify that there was an obligation of fairness that was due to Rick and Greg Hancock by Meritage. He will testify that a broker may not look out for his own interests over the interests of Rick and Brenda Hancock. He will testify that
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Meritage should not have concealed the existence of a contract. Greg Hancock will testify that the manner in which Meritage hid the contract and then tried to obtain a release constitutes wrongful behavior that is not acceptable for a house builder that falls below the standard of care a broker owes to a real estate transaction participant. Greg Hancock will testify that not notifying a buyer that a contract has been executed of over two years ago is untimely. Greg Hancock will testify that the attempt to claim that the execution of the contract was inadvertent constitutes willful malfeasance and is inconsistent with the duties that are owed to a real estate transaction participant by a broker. Greg Hancock will testify that it is his opinion it is highly unlikely that a real estate broker whose duties are to accept a contract on behalf of a real estate company, inadvertently signed a document due to the specific position and duties which are required of a broker. Greg Hancock will testify as to factors that would (1) show a contract execution was not inadvertent in this case include the signing of the contract in two different places; (2) it is dated in two different places, and (3) that there was deposit of the earnest money. There was a failure to obtain a cancellation authorization by Rick and Brenda Hancock. There was failure to contact Rick and Brenda Hancock and secure a signature of Rick and Brenda Hancock on the cancellation form, even though Meritage knew where they lived based on the fact that Rick Hancock was an employee. To Greg Hancock, this is a factor showing concealment and deceit in his opinion. Greg Hancock will testify that the failure of Roger Zetah to identify the date he signed the document purporting to cancel the contract is inconsistent with a legitimate cancellation and to Greg Hancock indicates deceitful behavior. The fact that Roger Zetah is the one who signed the cancellation on behalf of Rick and Brenda Hancock is also indicative of deceit. The fact that Roger Zetah, who is a Chief Financial Officer, executed the cancellation in and of itself is consistent with deceit as this is not the duty or function of a Chief Financial Officer based upon Greg Hancock's experience. The fact that this was the only cancellation executed by Zetah is also consistent with deceit in connection with this matter based upon all the other facts previously mentioned. The

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concealment of a real estate contract by a home builder in negotiating a release is inconsistent with the duties a real estate agent or broker owes to a buyer. Greg Hancock will testify that it was imperative to disclose the existence of a real estate contract. To further assert that there is no real estate contract when a real estate contract exists to obtain a settlement as this would undermine obligation of fair dealing that is owed to Rick and Brenda Hancock, in this case, by Meritage through Hilton and Arneson in obtaining a settlement and release. In this case, the settlement and release was influenced by concealment and deceit on the part of Meritage. It is Greg Hancock's opinion that the standard of care fell below that expected of a real estate broker acting through a home builder in the Phoenix Metropolitan area. Greg Hancock attended Arizona State University and studied construction and real estate. He is a licensed real estate broker in the State of Arizona. Greg Hancock is not charging monies for his services. Greg Hancock has previously not testified in any trials as an expert witness. He has, however, given opinion testimony in a deposition in the matter of Southern California Housing v. Hancock, et. al. Greg Hancock has served as Southwest Division President Beazer Homes. He has served as President of

Hancock Communities. Greg Hancock's testimony is also based upon his observation at depositions that he has attended in this matter. Greg Hancock's testimony is based upon the information obtained by being present at the deposition and review of documents used at the deposition of Jerry Lilly, Scott Keeffe and Brenda Hancock as well as discussions with Rick and Brenda Hancock. His opinion is also based on the deposition of Real Estate Regulation including, but not limited to, R4-28-1101 (A) and R4-28-1101. 2. Brenda Hancock. Brenda Hancock will testify that Meritage accepted a

contract with Rick and Brenda Hancock. She will testify that there was an obligation of fairness that was due to Rick and Greg Hancock by Meritage. She will testify that home builders who do business through licensed real estate agents and brokers must deal fairly with buyers. One of the most important duties in real estate is the duty of disclosure. She will

testify that Meritage concealed the existence of a contract. She will testify that Meritage hid
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the contract and then tried to obtain a release. Based upon her experience and training, this is wrongful behavior that is not acceptable for a house builder that falls below the standard of care a broker owes to a real estate transaction participant. Brenda Hancock will testify that not notifying a buyer that a contract has been executed for over two years is untimely. Brenda Hancock will testify that the attempt to claim that the execution of the contract was inadvertent is in her opinion totally ludicrous and again is inconsistent with the duties that are owed to a real estate transaction participant by a broker. Brenda Hancock will testify that it is her opinion that it is highly unlikely that a real estate broker whose duties are to accept a contract on behalf of a real estate company, inadvertently signed the document due to the fact that it is the broker's primary function to accept contracts on behalf of a home builder. It is well known to sales associates, who sell homes for new home builders, that the signature of the designated broker binds the homebuilder It is her understanding that this is the most important duty of the broker. She observed this important function when she worked for Steve Hilton at Monterey Homes. Brenda Hancock will testify as to factors that would show the contract execution was not inadvertent include the signing of the contract in two different places, the dating of the contract in two different places and the deposit of the earnest money. The failure to obtain a cancellation authorization by Rick and Brenda Hancock is consistent with deceit. It is her experience that once executed, the real estate purchase contracts need to be cancelled by attempting to contact the buyer and obtaining their authorization. Brenda Hancock knows that Meritage knew how to contact Rick and Brenda Hancock as Rick Hancock was an employee and Steve Hilton was negotiating a settlement and release with her husband.. Brenda Hancock will testify that Roger Zetah's omission of the date he signed the document purporting to cancel the contract is inconsistent with a legitimate cancellation and to Brenda Hancock indicates the deceitful behavior. This is all the more important when she considers this in light of the letter which was hand-delivered to Hilton and Arneson. The fact that Roger Zetah is the one who signed the cancellation after another employee refused to do so at Zetah's direction on behalf of Rick and Brenda Hancock is also indicative of deceit. The
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fact that Roger Zetah, who is a Chief Financial Officer, executed the cancellation in and of itself is consistent with deceit as this is not the duty or function of a Chief Financial Officer based upon Brenda Hancock's experience. The fact that this was the only cancellation

executed by him is also consistent with deceit in connection with this matter based upon all the other facts previously mentioned. Brenda Hancock will testify that it is improper to fail to disclose the existence of a real estate contract, to further assert that is no real estate contract when a real estate contract exists to obtain a settlement as this would undermine an obligation of fair dealing that as in this case the settlement and release was influenced by concealment and deceit on part of Meritage. 3. Kurt Brueckner. Kurt Brueckner will testify about transactions involving

David Cornwall.. He will testify that Greg Hancock was not involved in active investments with David Cornwall. Kurt Brueckner will testify that the actions of Greg Hancock were structured so as not to violate the agreements set forth between Meritage and Greg Hancock. The basis of his testimony is that he was actually involved in the sale of the Hancock Communities to Meritage and reviewed the documents prior to the closing in May, 2001. Kurt Brueckner was involved in drafting documents between Greg Hancock and David Cornwall. 4. Wayne Smith. Wayne Smith will testify that he has been involved in

transactions involving Merrenoux and Olympic, and subsequent joint ventures involving Meritage. He will testify that Greg Hancock was not an active participant in the management of Olympic based upon his observation and that David Cornwall was the one making management decisions pertaining to Olympic and subsequent transactions involving Meritage's joint ventures and the flow down transactions 5. Mel Faroni.

RESPECTFULLY SUBMITTED this 10th day of October, 2006.

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MATHEW & MATHEW, P.C By: /s/Ivan K. Mathew Ivan K. Mathew, Attorneys for Ricky Lee Hancock, Brenda Hancock, Rick Hancock Homes, L.L.C. and RLH Development, L.L.C.

CERTIFICATE OF SERVICE Meritage v. Hancock, et al. Case No. CV 04 00384 ROS

I hereby certify that on October 10, 2006, I electronically transmitted the attached 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: Dan W. Goldfine Richard G. Erickson Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon Timothy J. Burke Fennemore & Craig, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Third Party Defendant, Snell & Wilmer, LLP Robert M. Frisbee Frisbee & Bostock 5611 N. 16th Street Phoenix, AZ 85016 e-mail: [email protected] Attorneys for Defendant Gregory Hancock

Grant Woods Grant Woods, P.C. 1726 N. Seventh Street Phoenix, AZ 85006 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon

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Mark I. Harrison Sarah Porter Osborn Maledon, P.A. 2929 N. Central Avenue, Suite 2100 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Defendant Greg and Linda Hancock and Counsel of Record Robert Frisbee s/Karen Gawel

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