Free Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Kenneth J. Sherk (No. 001371) Timothy J. Burke (No. 002568) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] [email protected] Attorneys for Defendant Snell & Wilmer, L.L.P., an Arizona professional corporation,

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; HancockMTH Communities, Inc., an Arizona corporation d/b/a Meritage Homes Construction, Inc.; and Meritage Homes of Arizona, Inc., an Arizona Corporation, Plaintiffs, No. CV-04-0384-PHX-ROS

THIRD-PARTY DEFENDANT SNELL & WILMER'S RESPONSE TO GREG HANCOCK'S MOTION FOR STAY AND REQUEST FOR RELIEF FROM OPERATION OF ORDER

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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

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.

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Filed 05/15/2006

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Greg Hancock, an individual, Defendant, CounterClaimant and Third-Party Plaintiff, v. Steven J. Hilton, an individual; John R. Landon, an individual; Larry W. Seay, an individual; and Snell & Wilmer, LLP, an Arizona professional corporation, Third-Party Defendants.

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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

By this Court's order of March 31, 2006, third-party plaintiff Greg Hancock's third-party complaint against Snell & Wilmer was dismissed, his claim for abuse of process with prejudice, and his claim for malicious prosecution without prejudice. The dismissal of his abuse of process claim became immediately ripe for appeal. Because his malicious prosecution claim was dismissed without prejudice, should he prevail on the merits of the Meritage plaintiffs' claim against him, he may eventually assert his claim for malicious prosecution.1 Instead of appealing the dismissal of his abuse of process claim, or abiding the outcome of Meritage's claims against him and then asserting his malicious prosecution claim, Hancock asks the Court to freeze these proceedings by staying entry of judgment pursuant to the Court's March 31, 2006 order. His request is in effect a motion for reconsideration, responses to which are prohibited by Local Rule 7.2(g). Snell & Wilmer nevertheless submits this short response in the event the motion is treated as an original motion. This response is further limited to those issues directly affecting Snell & Wilmer, Snell & Wilmer expecting the Meritage parties to respond separately to the motion.
That claim may be barred by the doctrine of res judicata, it having been dismissed with prejudice in Arizona state court, or may fail on other grounds.
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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

Argument First, Hancock's motion is untimely. Hancock purports to bring his motion under Rule 59(e), which requires that motions to amend judgments must be filed within 10 days after entry of judgment. If the Court's order of March 31, 2006 is one from which an appeal lies and relief under Rule 59(e) is appropriate, as Hancock requests, Hancock has filed his motion out of time. The motion was filed on April 26, 2006, well beyond the 10 days allowed and for this reason alone should be denied. Second, motions to dismiss Hancock's abuse of process and malicious prosecution claims have been fully briefed in this Court and Maricopa County Superior Court, where they were briefed fully twice before being heard,2 and then again on motions for reconsideration and stay relief, before a judgment of dismissal with prejudice was finally entered on April 7, 2006. The State Court judgment and principles of res judicata render Hancock's Motion moot as to Snell & Wilmer. Third, after Superior Court Judge Houser entered an order dismissing Hancock's abuse of process and malicious prosecution claims, Hancock did the same thing he has now done in this Court: he filed a Motion To Stay Entry Of Judgment And For Stay Of Proceedings. The motion filed in Arizona State court was essentially another relabeled request for reconsideration, just as the motion filed here, and Superior Court Judge Houser denied it. As he did in state court, Hancock merely reargues here that Meritage's claims against him in this Court are without merit, and on that premise the entry of judgment of dismissal should be stayed. But this Court has ruled, as a matter of Arizona law, that the filing of Meritage's complaint against Hancock in this Court does not constitute abuse of process, and his claim for malicious prosecution fails because
The history of Snell & Wilmer's motion to dismiss in State court was long and tortured, but need not be repeated here.
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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

Meritage's claims against him have yet to be determined on the merits in his favor. Hancock has not presented this Court with any meaningful new information, which this Court did not already have when it ruled on the motions to dismiss, to justify reconsideration of the Court's ruling, much less any reason to stay these proceedings, even were his request timely. He continues to argue facts that he will present to a trier of fact, as though this Court must accept them as true, and as though the Court at this stage of the proceedings can forthwith enter judgment in Hancock's favor, despite disputed facts. Although styled a motion for stay, and effectively a motion for reconsideration, it is presented as a motion for summary judgment. The Court has already appropriately denied that motion, twice, albeit without prejudice. There is no small irony in Hancock's suggestion that this Court should grant his motion for stay on the amorphous notion that parties are entitled to a "just, speedy and inexpensive determination of each action." (Motion at 2; citing Fed. R. Civ. P. 1). After Snell & Wilmer's motion to dismiss was fully briefed, twice, in Arizona State court, the State court ruled in Snell & Wilmer's favor. Reconsideration, including a request for stay. Hancock then filed a Request for After a hearing on the Request for

consideration, the State court again ruled against Hancock. Hancock then filed his motion to stay entry of the judgment in the State court action, which was also denied. Hancock's repeated requests for stays, in the State court action, as well as in this Court, are hardly consonant with the "just, speedy and inexpensive determination of each action." Conclusion For almost two years, Snell & Wilmer has been forced to retain separate counsel to defend claims, in two separate forums, that patently failed to state a claim and that were instituted to cause inconvenience and potential conflict between Snell & Wilmer and its clients. Hancock's baseless claims have increased the time, expense and

complexity of adjudicating the disputes between Hancock and the Meritage parties. The

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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

speedy, inexpensive and just administration of this action calls for the Court to bring finality to its ruling issued in March of this year, just as the State court has entered a judgment bringing finality to the proceedings there. The relief Hancock seeks will only indefinitely prolong it. Once again, albeit of this Court rather than Arizona State court, Snell & Wilmer asks that Hancock's request for a stay be denied.

RESPECTFULLY SUBMITTED this 15th day of May, 2006. FENNEMORE CRAIG, P.C.

By: s/Timothy J. Burke Kenneth J. Sherk Timothy Burke Attorneys for Defendant Snell & Wilmer, L.L.P.

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F ENNEMORE C RAIG , P.C.
P R O F E S S IO N A L C O R P O R A T IO N P H O E N IX

The foregoing was electronically filed and served this 15th day of May, 2006, and a copy thereof mailed to the Honorable Judge Silver. Robert M. Frisbee Frisbee & Bostock, PLC 5611 N. 16th Street, Ste. 300 Phoenix, AZ 85016 Attorneys for Plaintiff Dan Goldfine Richard G. Erickson Emma Harty Snell & Wilmer LLP. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Plaintiff and Counterdefendant Meritage Corporation and Third Party Defendants Steve Hilton, John Landon and Larry Seay Ivan K. Mathew Mathew & Mathew, P.C. 1850 North Central Avenue #1910 Phoenix, AZ 85004 Attorneys for Defendant Rick Hancock

s/Susan Honsa
PHX/1792578

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