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

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 East Morten Avenue, Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 Fax: (602) 266-7744 4 [email protected] Attorneys for Greg and Linda Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE 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 d/b/a/ Meritage Homes Construction, Inc.; and Meritage Homes of Arizona, Inc., an Arizona Corporation, Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) Ricky Lee Hancock and Brenda ) Hancock, husband and wife; Gregory ) S. Hancock and Linda Hancock, ) husband and wife; Rick Hancock Homes ) LLC, an Arizona limited liability ) company; RLH Development, LLC, an ) Arizona limited liability company; and ) J2H2, LLC, an Arizona limited ) liability company, ) Defendants, ) and ) ) Greg Hancock, an individual, ) ) Defendant, Counter) Claimant and Third) Party Plaintiff, ) vs. ) ) Steven J. Hilton, an individual; John R. ) Landon, in individual; Larry W. Seay, ) an individual; and Snell & Wilmer, LLP, ) an Arizona professional ) corporation, ) Third-Party Defendants. ) )
Document 361

Case No. CV-04-0384-PHX-ROS

GREG HANCOCK'S REPLY TO OPPOSITION TO REQUEST FOR RULE 54(B) JUDGMENT

Case 2:04-cv-00384-ROS

Filed 09/28/2006

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The opposition proffered to Greg Hancock's request for Rule 54(B) certification is devoid of legal merit, contains faulty analysis, and misstates the facts. I. MULTIPLE APPEALS ARE UNLIKELY. It is argued that since most cases settle and most trial court decisions are affirmed on appeal, any appeal allowed now would be counter-productive. To the contrary, Meritage has stated that it will never settle without all parties "walking away." Further, the fact that the majority of appeals are unsuccessful is not predictive of any particular appeal. In this particular case, an appeal is more likely to produce a settlement than to impede it. Meritage in particular has been crowing publicly about all of the trial court's rulings going its way. If the Ninth Circuit reinstates Hancock's claims, which he believes will occur, then settlement is exponentially more likely. Meritage misleads the Court about the status of the state court proceedings. It fails to mention that most of Hancock's claims were dismissed without prejudice there - it was only the abuse of process and malicious prosecution claims that were dismissed with prejudice. Furthermore, Meritage has never entered judgment on the claims that were dismissed with prejudice, and Hancock still has appeal rights on those dismissals - they are not res judicata at this point. As a matter of fact, as shown by the Case Information sheet on the state court case, attached as EXHIBIT 1, there are no judgments entered in the case and all of Hancock's appeal rights are still intact. II. MERITAGE REPEATS THE BIG LIE. At page 4 of its Opposition Meritage repeats the big lie that Greg Hancock committed fraudulent conduct and breaches of fiduciary duties. As Hancock has frequently pointed out in prior filings, other than Meritage's manufactured big lie regarding Westwind-Riata West, there is no evidence of any Hancock wrongdoing, and there never has been any. Hancock believes that the Court will so find when it considers the final summary judgment motions to be filed on December 13, 2006. In contrast, Hancock has produced a plethora of evidence
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about Meritage wrongdoing, the most dramatic of which is the "go dark" email and its fraudulent conduct regarding Rick Hancock's home, which buttresses Greg Hancock's claims. Whatever is ultimately decided by a fact-finder, whether it be judge or jury, an appeal at this point will simplify rather than complicate the issues. If the appeal is denied, then Greg Hancock's claims are gone and Meritage's conduct is moot. If the dismissals are reversed, then the fact-finder hears the whole story in one trial. If Hancock must first try the case, and then obtains a reversal of the dismissals, then two trials will be necessitated. There is no good reason not to find out now what form the trial will take. III. THE FACTORS TO BE CONSIDERED ARE IN HANCOCK'S FAVOR. At page e of its Opposition Meritage recites the factors to be considered as to whether to grant certification. All of them mitigate in Greg Hancock's favor: · Certification now will lessen the likelihood of numerous appeals. If Hancock is successful, his right to his claims will be established and there will be no need for a subsequent appeal after trial on the issue. Hancock's claims are separate and distinct. Being forced out of his job and deprived of income and benefits is a different topic entirely than whether he participated outside his job in Westwind-Riata. The appellate court will only have to decide whether Hancock is entitled to pursue his claims once, and never have to decide it again. Severe financial harm would be inflicted on Hancock in having to participate in two trials rather than one.

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No persuasive argument or facts have been presented that mitigate against Hancock's request for Rule 65(B) certification and request for leave to file his motion for it should be granted. Should the Court grant it, then Hancock requests that the Court consider this Reply as if the motion had already been presented. RESPECTFULLY SUBMITTED this 5thday of September, 2006. /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock
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The foregoing Reply to Opposition to Request for Leave to file Motion for 2 Rule 54(b) Judgment on Less Than All Claims was electronically filed 3 and served this 28th day of September, 2006, and copy thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee
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